** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **
Executive Office for Immigration Review
Board of Immigration Appeals
Samuel W. Asbury, Esquire
Thomas P. Molloy
Assistant Chief Counsel
The respondent has appealed the June 4, 2008, decision of an Immigration Judge denying his request for pre-conclusion voluntary departure. The respondent, a native and citizen of Mexico, argues that the Immigration Judge applied an incorrect legal standard, namely a good moral character requirement, that does not exist for pre-conclusion voluntary departure and he asks that the record be remanded for further consideration of his request for voluntary departure. The motion to remand will be granted.
Voluntary departure under section 240B(a) of the Act is considered pre-hearing or pre-conclusion voluntary departure, which allows for a voluntary departure period of up to 120 days and has less stringent eligibility criteria than post-conclusion voluntary departure under section 240B(b) of the Act. See Matter of Arguelles, 22 I&N Dec. 811, 817 (BIA 1999); 8 C.F.R. ยง 1240.26(b); see also Matter of Cordova, 22 I&N Dec. 966, 967 (BIA 1999); Matter of Ocampo, 22 I&N Dec. 1301, 1303 (BIA 2000). Most significantly, an alien may be granted voluntary departure under section 240B(a) of the Act without being required to establish good moral character. Matter of Arguelles, supra, at 817. Thus, the Immigration Judge could properly grant this form of relief even if the respondent has certain criminal convictions, or has committed other actions indicative of a lack of good moral character. However, we have emphasized that discretion remains a required element of voluntary departure under both sections 240B(a) and 240B(b) of the Act. Id.
The record reveals that the respondent requested pre-conclusion voluntary departure, and that the Department of Homeland Security did not oppose this minimal form of relief. Tr. at 5. Despite the non-opposition of DHS, the Immigration Judge concluded that the respondent’s 2008 conviction for Operating a Motor Vehicle While Intoxicated precluded the respondent from demonstrating that he merited a favorable exercise of discretion. Although the respondent is not required to establish good moral character in order to be eligible for such relief under 240B(a), the Immigration Judge is within his authority to deny voluntary departure as a matter of discretion, based upon a decision that considers both favorable and unfavorable factors of record. See Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972).
The respondent argues that new facts have arisen, namely his subsequent marriage to a United States citizen and the approval of a visa petition based on that marriage. He requests that the record be remanded so that the Immigration Judge may consider these new factors related to his request for voluntary departure. The DHS has not opposed the respondent’s motion to remand. Since these new facts occurred after the Immigration Judge’s discretionary denial, we will grant the respondent’s motion to remand so that the Immigration Judge may consider these new favorable factors.