As I reported in May, the Trump II DHS has been digging into the Immigration and Nationality Act (INA) to find tools it can use to encourage aliens here unlawfully to leave, including by levying “administrative fines”, monetary penalties for failing to depart. Those fines are now being imposed, and the Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews immigration decisions — has been called upon to review one, on August 28 issuing an opinion in Matter of R-P-L- that sustained a $3,000 fine imposed on an alien who was granted voluntary departure (VD) but failed to leave for 20-plus years. As the BIA explained, Congress clearly intended that immigration orders “be enforced”, and for now at least, DHS is enforcing them.
“Voluntary Departure”
Generally, when discussing applications that alien “respondents” can file in removal proceedings, they are applications for “relief”, which means some status or benefit the immigration judge can grant the alien to allow the respondent to remain.
Voluntary departure isn’t relief, however; VD under section 240B of the INA is a “privilege” certain aliens may seek that permits them to leave the United States “voluntarily” and at their own expense without being formally deported, which allows the applicant to avoid some consequences of formal removal.
There are two difference kinds of VD: (1) “pre-conclusion voluntary departure” under section 240B(a), which respondents must ask for in the early stages of their removal proceedings; and (2) “post-conclusion voluntary departure” under section 240B(b), which may be granted to respondents at their final hearings, usually after they have been denied relief, and which is more difficult to receive.
Pre-conclusion VD can be granted for up to 120 days, but if the respondent waits and only seeks post-conclusion VD, it can only be granted for up to 60 days.
And traditionally, assuming there are no adverse discretionary factors in the case and the alien is not in immigration custody, immigration judges would grant VD for the full period allowed by law.
To be granted VD prior to the conclusion of removal proceedings, respondents must ask for VD, concede they are removable as charged, waive any applications for relief, show they intend to leave the country and can pay for a ticket out, and demonstrate they merit the privilege in the exercise of discretion.
As noted, it’s trickier to wait until the end to seek VD, because post-conclusion voluntary departure requires applicants to establish they were in the United States for at least a year before they were served with their Notices to Appear (“NTAs”, the charging document in removal proceedings), are persons of “good moral character” (as defined in section 101(f) of the INA) and have been for the preceding five years, have the means and intention to depart in accordance with the court’s order, and merit VD in the exercise of discretion.
They also must post a bond, which is returned after they are shown to have departed.
Aliens previously granted VD after entering illegally aren’t eligible for the privilege, nor (not surprisingly) are aliens deportable on aggravated felony or terrorism grounds.
The main benefit of VD (aside from not being physically deported), is that, by ducking a formal removal order, the grantee is not subject to the “10-year bar” to readmission to the United States after an order of removal under section 212(a)(9)(A)(ii) of the INA, though other inadmissibility grounds may apply.
“Civil Penalty for Failure to Depart”
Unfortunately, though likely not shockingly, many aliens who received this privilege have abused it by not departing from the United States as promised. Anticipating this, Congress in section 240B(d) of the INA authorized penalties that could be imposed on aliens who were granted VD but failed to leave.
With an exception for battered spouses and children, that provision imposes fines ranging from $1,000 to $5,000 on any alien “permitted to depart voluntarily under this section” who “voluntarily fails to depart the United States within the time period specified”.
It also bars those aliens from receiving certain forms of discretionary relief, including cancellation of removal under section 240A of the INA (which waives certain grounds of removability for green card holders and grants green cards to certain illegal aliens) and adjustment of status under section 245 of the INA (which permits an alien to receive a green card without first leaving to consular process abroad), for a period of 10 years.
Aliens granted VD are given a form, “Notice to Aliens Granted Voluntary Departure”, that explains those penalties, but while the 10-year bar to relief was often imposed on aliens who overstayed their period of VD, prior to Trump II it was fairly rare for those fines to be applied. Not anymore.
Matter of R-P-L-
The respondent in Matter of R-P-L- is an Indian national who was found to be removable on unspecified grounds — likely because he overstayed a nonimmigrant visa.
In removal proceedings before an immigration judge, he applied for asylum and related humanitarian protections as relief from removal (which the immigration judge denied) but was granted the privilege of voluntary departure in a December 2003 decision.
R-P-L- appealed the immigration judge’s decision to the BIA, which in December 2004 affirmed the lower court’s order but reinstated the VD grant and gave him 30 days to depart (which is common in such opinions).
The BIA then notified the respondent of the consequences in section 240B(d) of the INA should he fail to depart in its December 2004 order, but as the Board explained in its latest opinion, “Nevertheless, the respondent did not depart the United States.”
More than two decades later, in April 2025, DHS served R-P-L- (who’s still here) with a Notice of Intent to Fine, Form I-79, imposing a $3,000 monetary penalty for his failure to depart, in accordance with regulations governing the imposition and collection of immigration fines in 8 C.F.R. § 280.1.
As an aside, in June 2025, DHS announced that “illegal aliens who self-deport through the CBP Home App [would] receive forgiveness of any civil fines or penalties for failing to depart the United States”, but R-P-L- didn’t take DHS up on that offer, choosing instead to challenge the fine before the BIA.
The respondent made numerous arguments in support of his challenge and in opposition to the $3,000 fine DHS is attempting to impose.
First, he contended he did not receive notice of the consequences that could be imposed should he fail to depart the United States.
The BIA quickly dismissed that factual claim, noting that “both the Immigration Judge and the Board explicitly included notice of the penalties for failing to depart the United States at the end of their respective orders in accordance with section 240B(d)(3) of the INA”, which would have been served on his then-counsel of record.
Second, he contended that notice of the penalties for failing to depart shouldn’t “be imputed to him because he was not provided the requisite statutory notice by his counsel in a language that he understands”.
In rejecting that claim, the Board cited precedent that makes clear there’s no requirement that either the NTA or other documents in immigration proceedings be provided to respondents “in their native language” — in these cases, at least, English is good enough.
In that vein, the BIA added that “notice sent to an alien’s attorney of record is deemed proper notice to the alien”, but in any event, R-P-L- failed to show his lawyer didn’t “notify him of the voluntary departure order or the penalties for failing to comply with that order in the course of his representation”.
The Board also rejected the respondent’s other contentions, specifically that he was never told he had to leave (he was), that he didn’t have the resources to depart (he was required to, in order to be granted VD), that the fine was “excessive” (it’s not, given that it’s within the statutory limits), and that his failure to depart wasn’t “willful” because, while he didn’t leave, he kept trying to find legal ways to stay.
On that last point, the BIA concluded “the statute does not require the failure to depart to be willful” for the fine to be imposed, but in any event — as noted — his failure to depart in accordance with the VD order “rendered him subject to further penalty in that he is, among other things, ineligible to adjust his status pursuant to section 245 of the INA” (which is what he was apparently trying to do for the last 20-plus years), so he likely couldn’t have remained in any event.
“Congress’ Intent that Voluntary Departure and Removal Orders Be Enforced”
The standards and findings announced in this opinion are important, because the BIA hasn’t had many opportunities to weigh in on these because DHS has made little use of its fine authority in the past.
The most important portions of Matter of R-P-L-, however, are the ones that explain why the legislative branch created such penalties, because they clearly explain what the drafters of section 240B(d) had in mind.
As the Board explained:
Congress’ decision to include an amendment to the INA that authorizes the imposition of civil monetary fines against aliens who fail to depart after being issued a final order of removal or being granted voluntary departure reflects Congress’ intent that voluntary departure and removal orders be enforced. Further, the imposition of civil monetary fines is a longstanding method designed by Congress for the government to employ in order to encourage adherence to laws established by Congress, and such penalties have withstood constitutional scrutiny. [Internal citations omitted.]
If you want to see what decades of non-enforcement of the INA looks like, consider R-P-L-, an alien granted the privilege of leaving voluntarily, but who for more than 20 years abused that privilege and remained in the futile hope he could legally stay. Congress intends DHS to enforce the law, and for now, at least — that’s what’s happening.