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BIA Addresses Removal Order After Departure

By Susan Schreiber

If your client is in removal proceedings and then departs the United States, what happens to the pending proceedings?  After all, DHS is trying to get your client to leave and now it has.  Can you just go to court, report your client's departure, and then ask the judge to terminate proceedings?

If you do that, you can expect the judge to deny your motion, as the BIA did in Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012).  In that case, the respondent attended a master calendar hearing in 2007, and then received a series of continuances relating to a pending application for adjustment of status.  Eventually, at a master calendar hearing in 2011, the respondent's counsel appeared in court to request termination of proceedings, and reported that the respondent had voluntarily departed the United States.  The judge granted the motion, based on her determination that she no longer had jurisdiction over the respondent following his departure from the United States.  The DHS counsel, who sought issuance of an in absentia order, appealed the judge's decision to terminate.

On appeal, the Board agreed with DHS, and found that the respondent does not need to be physically present in the United States in order for the judge to retain jurisdiction over the pending proceedings and conduct an in absentia hearing.  In the Board's view, allowing a respondent to divest the immigration judge of jurisdiction by departing the United States would permit the respondent to "dictate the outcome of the proceedings and avoid the consequences of a formal order of removal"  Sanchez-Herbert at 45. As a result, the record was remanded to the immigration judge to proceed with the DHS request for an in absentia order.

In light of this decision, what should you do if your client wants to depart the United States in advance of a scheduled hearing?  Unless your client does not care about having an in absentia order, counsel your client to remain in the United States until you can work out a resolution of the case. For example, if your client simply wants voluntary departure, you can move to advance the hearing to a master calendar date and inform the judge in your motion that your client is seeking an earlier court date in order to request voluntary departure and then depart the United States.