Title III, Subtitle A
child, or (in the case of an alien who is a child)
to the alien’s parent.
In acting on applications under this paragraph, the
Attorney General shall consider any credible evi-
dence relevant to the application. The determination
of what evidence is credible and the weight to be
given that evidence shall be within the sole discretion
of the Attorney General.
‘‘(3) ADJUSTMENT OF STATUS.—The Attorney
General may adjust to the status of an alien lawfully
admitted for permanent residence any alien who the
Attorney General determines meets the requirements
of paragraph (1) or (2). The Attorney General shall
record the alien’s lawful admission for permanent
residence as of the date the Attorney General’s can-
cellation of removal under paragraph (1) or (2) or
determination under this paragraph.
‘‘(c) ALIENS INELIGIBLE FOR RELIEF.—The provi-
sions of subsections (a) and (b) shall not apply to any of
the following aliens:
‘‘(1) An alien who entered the United States as
a crewman subsequent to June 30, 1964.
‘‘(2) An alien who was admitted to the United
States as a visitor for business or pleasure under
section 101(a)(15)(B) or as a student under section
Title III, Subtitle A
101(a)(15)(F), unless the alien has adjusted status
to that of an alien lawfully admitted for permanent
residence.
‘‘(3) An alien who was admitted to the United
States as a nonimmigrant exchange alien as defined
in section 101(a)(15)(J), or has acquired the status
of such a nonimmigrant exchange alien after admis-
sion, in order to receive graduate medical education
or training, regardless of whether or not the alien is
subject to or has fulfilled the two-year foreign resi-
dence requirement of section 212(e).
‘‘(4) An alien who—
‘‘(i) was admitted to the United States as
a nonimmigrant exchange alien as defined in
section 101(a)(15)(J) or has acquired the sta-
tus of such a nonimmigrant exchange alien
after admission other than to receive graduate
medical education or training,
‘‘(ii) is subject to the two-year foreign resi-
dence requirement of section 212(e), and
‘‘(iii) has not fulfilled that requirement or
received a waiver thereof.
‘‘(5) An alien who is inadmissible under section
212(a)(3) or deportable under subparagraph (B) or
(D) of section 237(a)(4).
Title III, Subtitle A
‘‘(d) SPECIAL RULES RELATING
TO CONTINUOUS
RESIDENCE OR PHYSICAL PRESENCE.—
‘‘(1) TERMINATION OF CONTINUOUS PERIOD.—
For purposes of this section, any period of continu-
ous residence or continuous physical presence in the
United States shall be deemed to end when the alien
is served a notice to appear under section 239(a).
‘‘(2) TREATMENT
OF
CERTAIN
BREAKS
IN
PRESENCE.—An alien shall be considered to have
failed to maintain continuous physical presence in
the United States under subsections (b)(1) and
(b)(2) if the alien has departed from the United
States for any continuous period exceeding 90 days
or for any periods in the aggregate exceeding 180
days.
‘‘(3) CONTINUITY NOT REQUIRED BECAUSE OF
HONORABLE SERVICE IN ARMED FORCES AND PRES-
ENCE
UPON
ENTRY
INTO
SERVICE.—The require-
ments of continuous residence or continuous physical
presence in the United States under subsections (a)
and (b) shall not apply to an alien who—
‘‘(A) has served for a minimum period of
24 months in an active-duty status in the
Armed Forces of the United States and, if sep-
Title III, Subtitle A
arated from such service, was separated under
honorable conditions, and
‘‘(B) at the time of the alien’s enlistment
or induction was in the United States.
‘‘VOLUNTARY DEPARTURE
‘‘SEC. 240B. (a) CERTAIN CONDITIONS.—
‘‘(1) IN GENERAL.—The Attorney General may
permit an alien voluntarily to depart the United
States at the alien’s own expense under this sub-
section, in lieu of being subject to proceedings under
section 240 or prior to the completion of such pro-
ceedings, if the alien is not deportable under section
237(a)(2)(A)(iii) or section 237(a)(4)(B).
‘‘(2) PERIOD.—Permission to depart voluntarily
under this subsection shall not be valid for a period
exceeding 120 days.
‘‘(3) BOND.—The Attorney General may re-
quire an alien permitted to depart voluntarily under
this subsection to post a voluntary departure bond,
to be surrendered upon proof that the alien has de-
parted the United States within the time specified.
‘‘(4) TREATMENT OF ALIENS ARRIVING IN THE
UNITED STATES.—In the case of an alien who is ar-
riving in the United States and with respect to
whom proceedings under section 240 are (or would
otherwise be) initiated at the time of such alien’s ar-
Title III, Subtitle A
rival, paragraph (1) shall not apply. Nothing in this
paragraph shall be construed as preventing such an
alien from withdrawing the application for admission
in accordance with section 235(a)(4).
‘‘(b) AT CONCLUSION OF PROCEEDINGS.—
‘‘(1) IN GENERAL.—The Attorney General may
permit an alien voluntarily to depart the United
States at the alien’s own expense if, at the conclu-
sion of a proceeding under section 240, the immigra-
tion judge enters an order granting voluntary depar-
ture in lieu of removal and finds that—
‘‘(A) the alien has 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 under section 239(a);
‘‘(B) the alien is, and has been, a person
of good moral character for at least 5 years im-
mediately preceding the alien’s application for
voluntary departure,
‘‘(C) the alien is not deportable under sec-
tion 237(a)(2)(A)(iii) or section 237(a)(4), and
‘‘(D) the alien has established by clear and
convincing evidence that the alien has the
means to depart the United States and intends
to do so.
Title III, Subtitle A
‘‘(2) PERIOD.—Permission to depart voluntarily
under this subsection shall not be valid for a period
exceeding 60 days.
‘‘(3) BOND.—An alien permitted to depart vol-
untarily under this subsection shall be required to
post a voluntary departure bond, in an amount nec-
essary to ensure that the alien will depart, to be sur-
rendered upon proof that the alien has departed the
United States within the time specified.
‘‘(c) ALIENS NOT ELIGIBLE.—The Attorney General
shall not permit an alien to depart voluntarily under this
section if the alien was previously permitted to so depart
after having been found inadmissible under section
212(a)(9).
‘‘(d) CIVIL PENALTY FOR FAILURE TO DEPART.—
If an alien is permitted to depart voluntarily under this
section and fails voluntarily to depart the United States
within the time period specified, the alien shall be subject
to a civil penalty of not less than $1,000 and not more
than $5,000, and be ineligible for a period of 10 years
for any further relief under this section and sections 240A,
245, 248, and 249.
‘‘(e) ADDITIONAL CONDITIONS.—The Attorney Gen-
eral may by regulation limit eligibility for voluntary depar-
ture under this section for any class or classes of aliens.