On November 4, 2021, the Board of Immigration Appeals (BIA) issued a decision in Matter of M-F-O-, 28 I&N Dec. 408 (BIA 2021), finding a Notice to Appear (NTA) that does not specify the time or place of a respondent’s initial removal hearing to be insufficient to end the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings under section 240B(b) of the Immigration and Nationality Act (INA). This applies even if the respondent is later served with a Notice of Hearing (NOH) that does specify the time and place of the initial hearing.
To establish eligibility for voluntary departure from the United States at the conclusion of removal proceedings, a respondent must demonstrate, among other things, that they have “been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served.” INA § 239(a). Prior to the BIA’s November 4th decision, this meant that if a person did not have one year of continuous physical presence here in the United States before their NTA was issued placing them into removal proceeding, they could not qualify for post-conclusion voluntary departure and would instead be ordered deported from the United States.
Now, with this decision, a person in removal proceedings whose NTA did not specify the time and date of the initial hearing on the NTA (in other words, those places on the NTA say “to be set”) may now qualify for voluntary departure at the conclusion of their removal proceeding, as long as they meet the other requirements for it. This also means that people with this “lacking” NTA, whose request for post-conclusion voluntary departure was denied on the basis that they did not possess one year of continuous physical presence prior to the issuance of the deficient NTA, may be able to reopen their removal case on appeal to the BIA for purposes of requesting voluntary departure anew.
This is important because a person who departs the United States under a voluntary departure order does not require an “I-212 waiver” of prior deportation should they ever wish to reapply to return to the United States in the future.
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