United States Court of Appeals
Immigration — immigration warnings
The warnings required by the current regulations regarding voluntary departure are not retroactively applicable to grants of voluntary departure made before January 20, 2009.
“Bachynskyy essentially concedes that the post-January 20, 2009 regulations are not retroactive, and that the current mandatory pre-grant warnings by the IJ were not required by specific regulations in effect at the time of Bachynskyy’s hearing. However, he argues that the new regulatory scheme shows the importance of warning a noncitizen of the consequences of failing to post the required bond and urges this court to find that a failure to advise a noncitizen of the bond requirement and the consequences of failing to depart even before January 20, 2009 warrants reversal. We decline to make such a finding. Under the current regulations, even if the individual fails to or decides not to pay the bond, the penalties for failing to leave within the departure period attach. Currently, an individual must choose whether or not to accept voluntary departure, because once the IJ grants it, the penalties loom in the distance. 8 C.F.R. § 1240.26(c)(4) (2009). This was not the case pre-January 20, 2009, where a failure to pay the bond did not result in civil penalties if the individual did not depart within the departure period, because, as discussed above, it was as if voluntary departure never attached. In re Diaz-Ruacho, 24 I. & N. Dec. 47. Thus, while warnings and pre-grant advisals would certainly have been ideal, especially in this case where there was never any discussion of voluntary departure, and notice was conducted by mail and arrived only a day before the bond deadline, the current mandatory warnings exist to protect against dangers that Bachynskyy did not face.”
Petition for Review of an Order of the Board of Immigration Appeals, Williams, J.