January 29, 2008

Kevin Chapman

Acting General Counsel

Executive Office for Immigration Review

5107 Leesburg Pike, Suite 2600

Falls Church, VA 22041

> Re: EOIR Docket No. 163P -- Voluntary Departure: Effect of a Motion to
> Reopen or Reconsider or a Petition for Review, 72 Fed. Reg. 67674
> (Nov. 30, 2007)

Dear Mr. Chapman:

The National Immigrant Justice Center (NIJC), a partner of Heartland
Alliance for Human Needs & Human Rights, serves approximately 8,000
clients per year in direct service, advocacy and impact litigation. With
a staff of 40, including attorneys, paralegals, and accredited
representatives, and more than 700 active *pro bono* attorneys, the
National Immigrant Justice Center (NIJC) is one of the largest legal
service providers for low-income immigrants and refugees in the country.
Our comprehensive program provides legal services to immigrants, asylum
seekers, unaccompanied immigrant children, survivors of human
trafficking, and immigrant victims of domestic violence and crimes.

NIJC has submitted comments on the above captioned proposed rule in
conjunction with the American Immigration Lawyers Association (AILA) and
the American Immigration Law Foundation (AILF). This statement is
intended to supplement those comments.

I. The Proposed Rule Understates the Benefits to the Government of
Voluntary Departure.

As an initial matter, we believe that the proposed rule -- which would
basically make voluntary departure unavailable to several classes of
individuals -- severely underestimates the utility of voluntary
departure to the U.S. government. The Proposed Rule focuses on the
utility of voluntary departure in terms of bringing litigation to
conclusion; but it ignores the utility of voluntary departure in terms
of encouraging individuals to actually depart the United States when
ordered to do so. Based on our long experience in working with
immigrants, we have found that the prospect of losing voluntary
departure is a significant force leading individuals to timely depart
the United States after being ordered to do so.

Nor is that departure without significant benefits to the government.
The cost of detaining in a local county jail ranges from \$50-\$150/day,
and there are whole classes of individuals in removal proceedings
(non-criminal affirmative asylum applicants, for instance) who are
generally non-detained. This results in significant savings to the
government. If, at the end of proceedings, such an individual is ordered
to voluntarily

Kevin Chapman

January 29, 2008

Page 2

depart, in our experience it is very common for them to do so,
particularly where a voluntary departure bond has been imposed. By
contrast, ICE statistics suggest that a high percentage of individuals
ordered removed who are not then detained, end up becoming fugitives.
That is to say, where a voluntary departure order is the end result of
immigration proceedings, a higher percentage of those individuals will
likely depart without the need for further government action.

Where the Government does need to go out and locate someone for physical
removal, the costs are significant. According to the Inspector General,
the cost per arrest of an immigration fugitive is \$10,000. See "U.S.
Targeting Immigrant \'Absconders\'; Sharp Increase Is Seen In
Deportation Evasion," at p.A1, Washington Post (May 5, 2007). After the
arrest, the individual must be detained pending receipt of a travel
document, and then another short period pending actual removal. The
length of time ranges, in our experience, from one week to several
months, with an average of 3-4 weeks. This costs the taxpayers in the
neighborhood of \$2000/person. Moreover, the Government must then pay to
actually remove the person; while Mexican nationals can be removed at a
fairly minimal cost, flights to Africa or Asia range well into the
thousands of dollars. The cost of having to deport someone, rather than
have them leave voluntarily, is in the neighborhood of \$13,000, per
person.

Thus, at the most general level, NIJC suggests that the Department may
wish to reconsider the overall goal of this proposal. NIJC would suggest
that the goal should be to provide justice and fair treatment to aliens
facing removal, while furthering the Government's goals of (a)
preventing abuses of the system by the filing of frivolous motions, and
(b) obtaining the departure of aliens ordered to depart by the best and
least costly means available.

II\. The Proposed Rule Would Cause Great Hardship In Some Cases.

Many asylum applicants are individuals who lawfully entered the United
States using a valid visa, and thereafter remained due to threats to
themselves or their families. Such individuals are often law-abiding,
decent individuals who seek always to obey the law. Individuals fitting
that description are significantly likely to comply with a voluntary
departure order, if one is entered; and for them, this rule would often
cause great hardship.

For instance, NIJC would cite the example of [Khan v.
Mukasey]{.underline}, currently pending at the Seventh Circuit Court of
Appeals. Case no. 06-3966, see \<http://www.ca7.uscourts.gov/
efn/efns.fwx?caseno=06-3966&submit=showdkt&yr=06&num=3966\>. Mr. Khan
entered lawfully; he has been diagnosed as suffering from Post-Traumatic
Stress Disorder due to past abuse in Pakistan (including detention,
beatings, and torture). His diagnosis by an expert in PTSD did not come
until after the Board entered a removal order in his

Kevin Chapman

January 29, 2008

Page 3

case. In that case, Mr. Khan requested a stay of voluntary departure
from the Court of Appeals. The Government did not oppose, and the stay
was granted. Mr. Khan filed a motion to reopen with the Board, as well
as pursuing his federal appeal. If Mr. Khan is so unlucky as to lose his
appeal, he will be able to depart the United States under the

voluntary departure order. This will reward his general law-abiding
nature, and provide him with a significant reason to depart the United
States in a timely fashion.

By contrast, if the proposed regulations were adopted and in force, he
would have been put to a difficult choice of deciding to give up his
strong claim to protections in the United States, or to face loss of his
voluntary departure possibility (along with eligibility for most other
forms of relief, in the future). Whereas the current formulation of the
law provides him with an opportunity to prove his eligibility for
protection, the proposed regulation would pressure him to accept
voluntary departure and deny him this potentially life-saving motion to
reopen. It would give the Board and Immigration Judge no ability to
distinguish between strong, good-faith motions to reopen, and weak,
nearly frivolous motions. The rationale behind the rule itself should
suggest that the Agency seek to distinguish between those two
circumstances.

We submit that the Proposed Rule should be amended. We are submitting,
as an Appendix to this comment, text which we believe would better serve
the interests of the Government in avoiding abuse of the legal system,
while preserving the ability of aliens and asylum-seekers to seek the
protections which our legal system offers to them, consistently with our
national beliefs and values.

As noted above, NIJC has joined in the submission of comments with AILA
and AILF, and submits this example to illustrate the severe consequences
that may result from the proposed regulation. NIJC urges EOIR to
withdraw the proposed rule altogether, or to adopt the comments offered
by AILA, AILF, and NIJC.

Sincerely,

Charles Roth

Director of Litigation

Kevin Chapman

January 29, 2008

Page 4

Appendix: Proposed text

§ 1240.26

\(b\)

\(3\)

\(iii\) If the alien files a post-decision motion to reopen or
reconsider during the period allowed for voluntary departure, the grant
of voluntary departure may be stayed by order of the Immigration Judge
or the Board of Immigration Appeals. If a stay is requested, a decision
shall be made on the stay request within five business days, and the
stay shall be freely given where the interests of justice require. If
the period of voluntary departure is stayed, the individual shall not be
required to depart voluntarily until the Immigration Judge makes a
decision on the underlying motion. If a stay is not granted by the Board
or the Immigration Judge, the voluntary departure request shall be
treated as withdrawn, subject to reinstatement by the Board or
Immigration Judge; the motion to reopen or reconsider shall not be
denied based on the alien's failure to timely depart. If the motion to
reopen or reconsider is ultimately denied, the Immigration Judge or the
Board of Immigration Appeals shall exercise discretion decide whether to
reinstate the voluntary departure grant, but the grant shall not be
reinstated for a longer period than the time which was remaining in the
voluntary departure period at the time the motion was filed. Discretion
shall not be exercised positively if it is determined that the motion
lacked a genuine basis in law or fact.