BIA on Voluntary Departure
BIA in recent holding of Matter of Enrique Castrejon-Colino and Matter of Juan Manuel Garcia- Ramirez, held that “Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration Nationality Act, 8. U.S.C Sec. 1229B(B)(1)(a), in the absence of evidence that he or she was informed of and waived the right to such a hearing. “Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.
It further stated that “Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and / or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.”
The BIA decided these cases as per the Matter of Avilez, 23 I&N Dec. at 805, wherein the court held that “an immigration official’s refusal to admit an alien at a land border port of entry will not constitute a break in the alien’s continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjected to any other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States. “In the above mentioned case, the alien was not made subject to an order of expedited removal. Nor was the opportunity to withdraw an application for admission offered and accepted. The only relevant question to be decided by the BIA was whether the respondent was subjected to “any other formal, documented process” pursuant to which he was found inadmissible.
The BIA held that “Although the taking of photographs and fingerprints in conjunction with a voluntary return may be part of a “formal, documented process,” we determined in our companion case today that it is insufficient to meet the requirements of Matter of Avilez without any evidence that it was associated with a legally enforced refusal of admission and return.” Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015). Thus, when an alien has the right to appear before an Immigration Judge, evidence that photographs and fingerprints were taken in conjunction with a voluntary departure or return is insufficient to break the alien’s continuous physical presence in the absence of evidence that he or she was informed of and waived the right to a hearing.