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Question 28

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Question: When I was in high school, I was ordered to leave the US by an immigration judge. My father opted for voluntary departure, but we never followed through. Throughout this process, I never had a say in what happened. I have since then graduated from UT Austin, and I'm desperately hoping that the Dream Act passes. How does my voluntary departure bar affects my chances if the Dream Act becomes law?
From: eric, hwong 08/06/2009

Response: No one can say for sure until the law actually passes and we have the final language. Even then, there may be room for disagreement between the government and immigrants seeking change of status in interpreting the statute's language. With that caveat, I've tried to work through the language of the most recent version of the Dream Act introduced in Congress in 2009 by Senator Richard Durbin (D IL), known as S. 729.

The requirements for adjusting immigration status in the bill currently pending in the Senate are as follows.
(A) the alien has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry;
(B) the alien has been a person of good moral character since the time of application;
(C) the alien--
(i) is not inadmissible under paragraph (2), (3), (6)(E), or (10)(C) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)); and
(ii) is not deportable under paragraph (1)(E), (2), or (4) of section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a));
(D) the alien, at the time of application, has been admitted to an institution of higher education in the United States, or has earned a high school diploma or obtained a general education development certificate in the United States;
(E) the alien has never been under a final administrative or judicial order of exclusion, deportation, or removal, unless the alien--
(i) has remained in the United States under color of law after such order was issued; or
(ii) received the order before attaining the age of 16 years; and
(F) the alien had not yet reached the age of 35 years on the date of the enactment of this Act.
From the facts stated, you appear to be good on (A), (D) and, assuming you are under 35 years of age, (F). Element (C) needs to be broken down so we try to get a handle on it. First part, "not inadmissible under paragraph (2), (3), (6)(E), or (10)(C)" of 8 USC Section 1182(a). Here are what each of those subsections deal with.
  • Paragraph 2--Criminal and related grounds;
  • Paragraph 3--Security and related grounds;
  • Paragraph 6(E)--Illegal smugglers; and
  • International child abduction.
None of these subsections deals with "voluntary departure". Let us look at the next section--"not deportable under paragraph (1)(E), (2), or (4)" of 8 USC Section 1227(a). Here are what each of those subsections deal with.
  • Paragraph 1(E)--Criminal Smuggling;
  • Paragraph 2--Criminal offenses;
  • Paragraph (4)--Security and related grounds.
None of this subsections appear to deal with voluntary departure either.

As to paragraph E, an administrative or judicial order of final departure, I do not think a voluntary departure agreement constitutes an "order". It is more in the nature of a civil contract that has administrative consequences. See 8 CFR Parts 1240 and 1241, Voluntary Departure (proposed rule). That said, as you were young when all this occurred, an immigration attorney would need to review your file to conclusively determine whether on order of removal had in fact been issued.

Conclusion. If you meet the other requirements of the act, the version currently pending in the senate does appear to my eyes to allow those aliens who signed a voluntary departure agreement to apply. Suggestion--when and if the act is passed, submit this question to a US lawyer specializing in immigration law.

p.s. An Immigration Reform Comparison from Sen. Ted Kennedy's web site done during the Bush Administration (2005) may bloster this conclusion. The chart compares the Spector reform bill to the McCain-Kennedy bill. Under the Spector bill, those who did not comply with a voluntary departure agreement were not eligible to apply for a change of status to resident alien. The McCain-Kennedy bill (according to the web site) had no such restriction. Sen. Durbins current bill in the senate works off of the older McCain-Kennedy bill.

By: JJR, Date: 08/07/09
Note: Joe Raymond is an attorney but not a specialist in the area of immigration law.


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