Matter of M-A-S, 24I&N Dec. 762 (BIA 2009), a new case was decided by the Board of Immigration Appeals (“Board”) on March 19, 2009, holds that, “[a]n Immigration Judge may order an alien detained until departure as a condition of a grant of voluntary departure”. In this case, the respondent was denied his claim for asylum and as a condition of voluntary departure was ordered detained until his departure. What’s worse is that the respondent appealed this decision to the Board and has been detained for almost a year awaiting adjudication of his appeal!
The respondent argued that only DHS, not an Immigration Judge, has the authority to refuse bond and grant voluntary departure under safeguards. Voluntary departure under safeguards, by definition, means that an individual is given permission to voluntarily depart the United States, but they will not be released from detention before doing so. They will remain detained until they are removed under the order. They are not permitted release to even gather their belongings and adequately prepare for moving back to their home country.
Unfortunately, the Board disagreed with the respondent’s argument and now issued a precedent decision interpreting the regulations to mean that an Immigration Judge can also enforce voluntary departure under safeguards, if he so chooses. This is a terrible decision because it provides full discretion to Immigration Judges to deny bond under any and all circumstances that may include a grant of voluntary departure, regardless of the underlying facts of the case! In a jurisdiction such as Atlanta, where the Immigration Judges fall on the stricter side of the immigration laws, this will provide them with yet another avenue to back their harsh decisions.