Certain NTAs Insufficient to Cut Off Physical Presence for Voluntary Departure | Joseph & Hall P.C.

On November 4, 2021, the Board of Immigration Appeals (BIA) issued a choice in Matter of M-F-O-, 28 I&N Dec. 408 (BIA 2021), discovering a Discover to Seem (NTA) that doesn’t specify the time or place of a respondent’s preliminary removing listening to to be inadequate to finish the accrual of bodily presence for functions of voluntary departure on the conclusion of removing proceedings underneath part 240B(b) of the Immigration and Nationality Act (INA). This is applicable even when the respondent is later served with a Discover of Listening to (NOH) that does specify the time and place of the preliminary listening to.

To determine eligibility for voluntary departure from the USA on the conclusion of removing proceedings, a respondent should reveal, amongst different issues, that they’ve “been bodily current in the USA for a interval of at the least one yr instantly previous the date the discover to look was served.” INA § 239(a). Previous to the BIA’s November 4^th resolution, this meant that if an individual didn’t have one yr of steady bodily presence right here in the USA earlier than their NTA was issued inserting them into removing continuing, they may not qualify for post-conclusion voluntary departure and would as an alternative be ordered deported from the USA.

Now, with this resolution, an individual in removing proceedings whose NTA didn’t specify the time and date of the preliminary listening to on the NTA (in different phrases, these locations on the NTA say “to be set”) might now qualify for voluntary departure on the conclusion of their removing continuing, so long as they meet the opposite necessities for it. This additionally signifies that individuals with this “missing” NTA, whose request for post-conclusion voluntary departure was denied on the premise that they didn’t possess one yr of steady bodily presence previous to the issuance of the poor NTA, could possibly reopen their removing case on enchantment to the BIA for functions of requesting voluntary departure anew.

That is vital as a result of an individual who departs the USA underneath a voluntary departure order doesn’t require an “I-212 waiver” of prior deportation ought to they ever want to reapply to return to the USA sooner or later.

Please word: This info is meant for academic functions solely. You probably have questions on your eligibility for an immigration profit or your immigration choices, please contact Joseph & Corridor at (303) 297-9171 to schedule a session with one among our skilled attorneys. In case you are already a consumer of Joseph & Corridor and have questions on your case, please contact your lawyer to debate your explicit case.