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Under federal law, an alien facing imminent deportation may�if the U.S. Citizenship and Immigration Services so permits�opt instead for a “voluntary departure” within a certain time, usually 60 days. Voluntary departure allows aliens “to choose their own destination points, to put their affairs in order without fear of being taken into custody at any time, to avoid the stigma and various penalties associated with forced removals . . . and it facilitates the possibility of return to the United States, for example, by adjustment of status,” according to a Sept. 9 decision by the 7th U.S. Circuit Court of Appeals. Lopez-Chavez v. Ashcroft, No. 04-1761. But aliens who are in the midst of appealing an agency determination�such as a denial of asylum�may have to drop those appeals if they accept voluntary departure, because of the practical difficulties of carrying on litigation from abroad. Under such circumstances, four circuits�the 6th, 8th, 9th and now the 7th�have held that federal judges have the authority to stop the clock on the window of opportunity for voluntary departure until an appeal is complete. Two circuits�the 1st and 6th�have even intervened to restart the clock after the original deadline has passed. Jurisdiction stripped The 4th Circuit is the only circuit to hold that federal judges have no authority over voluntary-departure deadlines (although the 3d Circuit has shown similar leanings in dicta). In a June decision, Ngarurih v. Ashcroft, 371 F.3d 182, the 4th Circuit rests its case upon two changes in law made by the Illegal Immigration and Immigrant Responsibility Act of 1996. First, the act stripped federal judges of the authority to review agency orders granting or withholding voluntary departure (the provisions that do so are codified at 8 U.S.C. 1229c(f) and 1252(a)(2)(B)). The 4th Circuit concluded that it could not stay voluntary-departure orders over which it had no jurisdiction, and even less could it restart the clock, as the 1st and 6th circuits have done. In a second major change pointed to by the 4th Circuit, the act eliminated one rationale for judicial intervention in the voluntary-departure process. Before 1996, aliens who departed from the country voluntarily could not, as a matter of law, continue their appeals of agency decisions. That fact led many federal courts to issue stays of voluntary departure lest asylum and other decisions of the Immigration and Naturalization Service (as the agency was then called) should escape review entirely. The act changed that by allowing aliens to continue their appeals from outside the country. In Lopez-Chavez, the 7th Circuit responded to the 4th Circuit by saying that the act merely stripped federal judges of jurisdiction over the initial agency decision to grant or withhold voluntary departure. A stay would not run afoul of the act, the court argued, because it merely delays voluntary departure and thus does not pass judgment on the agency’s initial decision. The court argued that many aliens who leave the country voluntarily will drop their appeals for practical reasons even in the absence of the pre-1996 legal barrier. “[The 4th Circuit's] analysis underestimates the difficulty that aliens will likely encounter in pursuing appeals from afar and the possibility that they will be subjected to the persecution that they are trying to avoid before relief on appeal may be granted,” the 7th Circuit wrote. Young’s e-mail is [email protected].

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