MARISCAL-HERNANDEZ

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Matter of Fermin MARISCAL-HERNANDEZ, Respondent
Decided December 9, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Where an Immigration Judge finds that a traffic stop was nothing more than a routine
law enforcement action, a respondent has not established a prima face case of a Fourth
Amendment violation—much less an egregious violation—and is not entitled to a
hearing on a suppression motion. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988),
followed.
(2) Unsupported assertions and speculation have no evidentiary value and are insufficient
to establish a prima facie case that an investigatory stop was an egregious violation of
the Fourth Amendment, and thus they do not warrant a suppression hearing.
FOR THE RESPONDENT: Jan Joseph Bejar, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Alvin Ratana, Assistant Chief
Counsel
BEFORE: 	Board Panel: 	MALPHRUS, Deputy Chief Appellate Immigration Judge;
HUNSUCKER and PETTY, Appellate Immigration Judges.
HUNSUCKER, Appellate Immigration Judge:
In a decision dated December 7, 2018, an Immigration Judge denied the
respondent’s 	motion 	to 	suppress 	evidence 	and 	terminate 	his 	removal
proceedings. The respondent has appealed from this decision as well as the
Immigration Judge’s decision to deny his motion to terminate based on
Pereira v. Sessions, 138 S. Ct. 2105 (2018). The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
On February 14, 2017, Immigration and Customs Enforcement (“ICE”)
officers were conducting surveillance in Encinitas, California, seeking to
arrest a previously removed noncitizen with a final order of removal. During
this surveillance, the officers saw a man resembling the target of their
investigation exit the apartment complex where they believed their target
lived and enter the passenger side of a vehicle. ICE officers stopped and then
approached 	the 	vehicle 	and 	questioned 	the 	vehicle’s 	occupants—the
respondent and the respondent’s son.

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In a declaration appended to his motion to suppress, the respondent
claims that ICE officers presented him and his son with a photograph of the
man who was the target of the investigation. The respondent asserts he told
the officers he did not know the man in the photograph. 	A Record of
Deportable/Inadmissible Alien (Form I-213) documenting the stop states that
ICE officers then asked both the respondent and his son for identification.
The respondent’s son produced a Mexican matrícula—an identity document
issued by the Government of Mexico—but the respondent replied that he
could not produce any identification. 	According to the Form I-213, the
respondent and his son then admitted they were unlawfully present in the
United States. 	The respondent’s declaration is vague about his further
communications with the ICE officers during the stop. In it, the respondent
claims the ICE officers “did not really speak to [him],” but he does not deny
telling officers that he was unlawfully in the United States. 	Both the
respondent and his son were then arrested and transported to the San Diego
ICE office.
The respondent states in his declaration that while officers at the San
Diego ICE office asked him “various questions” and took his fingerprints,
they never asked him if he was lawfully in the United States. The respondent
further claims he was never advised of his rights to remain silent and hire an
attorney, and he “felt compelled to answer the questions” he was asked,
though he does not specify what those questions were. The respondent was
released later that day. 	The same day as the arrest and stop, ICE officers
prepared the Form I-213. 	In addition to detailing the stop and arrest, this
form states that a records check revealed the respondent was voluntarily
returned to Mexico on January 13, 2003.
Prior to his release from the San Diego ICE office, the Department of
Homeland Security (“DHS”) personally served the respondent with a notice
to appear that stated he was to appear for a removal hearing before the San
Diego Immigration Court at a date and time to be set. The notice to appear
alleged the respondent is a native and citizen of Mexico who entered the
United States on or about December 15, 2001, without admission or parole
and charged him with removability under section 212(a)(6)(A)(i) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i)
(2012), as an individual present in the United States without having been
admitted or paroled.
The respondent moved to suppress the Form I-213, which contains
evidence 	of 	his 	alienage 	and 	supports 	the 	allegations 	and 	charge 	of
removability. The respondent claimed DHS obtained this evidence through
an egregious violation of his rights under the Fourth Amendment of the
United 	States 	Constitution—specifically, 	that 	ICE 	officers 	knowingly
stopped 	him 	based 	on 	his 	apparent 	ethnicity 	without 	any 	reasonable

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suspicion that he was unlawfully present in the United States. 	He also
claimed DHS violated his rights under the INA and the governing regulations
by conducting a warrantless arrest and failing to advise him of his right
against self-incrimination. Finally, he claimed the Form I-213 is unreliable
and that he should be permitted to cross-examine the ICE officers who
arrested him “and any other officer” involved in his “seizure and custodial
interrogation.”
The Immigration Judge denied the respondent’s motion to suppress the
Form I-213 and terminate proceedings. The respondent did not submit any
applications for relief from removal but was granted the benefit of voluntary
departure under section 240B(b)(1) of the INA, 8 U.S.C. § 1229c(b)(1)
(2018). 	On appeal, the respondent challenges the Immigration Judge’s
decision to deny his motion to suppress the Form I-213 and terminate
proceedings.1
II. ANALYSIS
A. Admission of Evidence in Immigration Proceedings
“In immigration proceedings, the ‘sole test for admission of evidence is
whether the evidence is probative and its admission is fundamentally fair.’”
Matter of E-F-N-, 28 I&N Dec. 591, 593 (BIA 2022) (citation omitted); see
also Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012) (per curiam)
(same). 	Here, the Immigration Judge properly found the Form I-213 to be
probative of the respondent’s alienage and the allegation in the notice to
appear that he is a native and citizen of Mexico. 	See Matter of E-F-N-, 28
I&N Dec. at 593 (citing Matter of Ruzku, 26 I&N Dec. 731, 733 (BIA 2016)
(“[T]o be probative, evidence must tend to prove or disprove an issue that is
material to the determination of the case.”)). 	It is also probative of his
removability 	under 	section 	212(a)(6)(A)(i) 	of 	the 	INA, 	8 	U.S.C.
§ 1182(a)(6)(A)(i), because it reflects the respondent is unlawfully in the
United States.
1 	The respondent also appealed the Immigration Judge’s denial of his motion to terminate
based on Pereira. The respondent argued his notice to appear did not vest the Immigration
Judge with jurisdiction over his removal proceedings because it did not specify the time
and date of his initial removal hearing. This argument is foreclosed by binding precedent.
United States v. Bastide-Hernandez, 39 F.4th 1187, 1190–94 (9th Cir. 2022) (en banc)
(holding that the failure to include the date and time of a removal hearing on a notice to
appear does not deprive an Immigration Court of jurisdiction); Matter of Arambula-Bravo,
28 I&N Dec. 388, 391 (BIA 2021) (same). Although the respondent’s notice to appear did
not inform him of the time and date of his initial hearing, he was provided with this
information in a subsequent notice of hearing, and he appeared for all of his hearings.

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The admission of the Form I-213 was fundamentally fair. Sanchez, 704
F.3d at 1109 (“Admission of a Form I-213 ‘is fair absent evidence of coercion
or that the statements are not those of the petitioner.’”); see also Hernandez
v. Garland, No. 20-72138, 2022 WL 16547160, at *5 (9th Cir. Oct. 31, 2022)
(“Forms I-213 are entitled to a presumption of reliability because of their
general 	characteristics 	as 	government-prepared 	documents. 	Those
characteristics exist regardless of the purpose for which the form is used.”
(citation omitted)). 	Although the respondent asserts he “felt” compelled to
answer 	the 	ICE 	officers’ 	questions, 	he 	has 	not 	presented 	evidence
demonstrating 	that 	ICE 	officers 	used 	coercion 	to 	obtain 	any 	of 	the
information contained in the Form I-213, including that he and his son
admitted to being unlawfully present during the stop. Additionally, while the
respondent claims in his declaration the officers “did not really speak to
[him]” and “never asked [him] if [he] was lawfully in the United States,” he
does not deny making the statements regarding his alienage, or the time,
place, and manner of his entry as recorded in the Form I-213. 	Thus, the
respondent’s declaration does not “cast doubt upon [the] reliability” of the
Form I-213. Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995).
Furthermore, the respondent has not shown that the Immigration Judge’s
decision to admit the Form I-213 and not permit him to cross-examine the
ICE officers who prepared this form prejudiced him. 	See Olea-Serefina
v. Garland, 34 F.4th 856, 866 (9th Cir. 2022) (stating that to demonstrate a
violation 	of 	due 	process 	in 	removal 	proceedings, 	a 	respondent 	must
demonstrate “prejudice, which means that the outcome of the proceeding
may have been affected by the alleged violation’” (citation omitted)).2
B. Exclusionary Rule
The Fourth Amendment to the United States Constitution provides that
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated.”
U.S. Const. amend. IV. To effectuate this constitutional right, the Supreme
2 	Asking for identification during an investigatory stop is a “routine and accepted”
practice that serves many legitimate purposes, including protecting the safety of officers,
identifying the possible subject of an arrest warrant, or quickly clearing a person detained
and allowing officers to focus their efforts elsewhere. Hiibel v. Sixth Judicial Dist. Ct. of
Nev., 542 U.S. 177, 186 (2004). 	It is well established that “the identity of an alien in
removal proceedings is ‘never itself suppressible . . . .’” 	Perez Cruz v. Barr, 926 F.3d
1128, 1136 (9th Cir. 2019) (citation omitted); see also B.R. v. Garland, 26 F.4th 827, 842
(9th Cir. 2022) (“Alienage evidence obtained using only an alien’s identity is severed from
any violation that may otherwise justify exclusion.”). However, DHS does not assert it
used the respondent’s identity to establish his alienage or lack of immigration status in this
case.

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Court of the United States has, in some contexts, required evidence obtained
in violation of the Fourth Amendment, or derived from such a violation, to
be excluded from judicial proceedings. 	See Herring v. United States, 555
U.S. 135, 139 (2009) (noting “our decisions establish an exclusionary rule
that, when applicable, forbids the use of improperly obtained evidence at
trial” (emphasis added)).
In Matter of Sandoval, 17 I&N Dec. 70, 83 (BIA 1979), we held that the
exclusionary rule does not apply in civil immigration proceedings. 	We
reached this holding after concluding the “societal costs” of applying the
exclusionary rule in immigration proceedings, namely, the “sanctioning of a
continuing violation of this country’s immigration laws,” outweighed “the
remote likelihood that the exclusion of unlawfully seized evidence . . . would
significantly affect the conduct of immigration officers.” 	Id. at 81, 83. 	In
INS v. Lopez-Mendoza, the Supreme Court agreed with our holding and
reasoning in Matter of Sandoval. 	468 U.S. 1032, 1050 (1984) (“[W]e are
persuaded that the . . . balance between costs and benefits comes out against
applying the exclusionary rule in civil deportation hearings . . . .”).
As 	stated 	in 	Lopez-Mendoza, 	the 	exclusionary 	rule 	may 	apply 	in
immigration proceedings where evidence 	was obtained 	as a 	result of
“egregious violations of [the] Fourth Amendment . . . that might transgress
notions of fundamental fairness and undermine the probative value of the
evidence obtained.” 	Id. at 1050–51 (plurality opinion); see also Matter of
Cervantes, 21 I&N Dec. 351, 353 (BIA 1996) (acknowledging that the
“Supreme Court left open the possibility that the exclusionary rule might
apply in immigration proceedings involving ‘egregious violations . . . .’”
(citation omitted)). The United States Court of Appeals for the Ninth Circuit,
in whose jurisdiction this case arises, has held that the exclusionary rule
applies in the immigration context where immigration officers commit an
“egregious” violation of the Fourth Amendment, meaning the “evidence is
obtained by deliberate violations of the [F]ourth [A]mendment, or by conduct
a reasonable officer should [have known] is in violation of the Constitution.”
Lopez-Rodriguez 	v. 	Mukasey, 	536 	F.3d 	1012, 	1018 	(9th 	Cir. 	2008)
(alternations in original) (citation omitted).3
3 	The Ninth Circuit’s “reasonable officer” test is the most expansive test for egregious
conduct among the circuits. See Garcia-Torres v. Holder, 660 F.3d 333, 337 n.4 (8th Cir.
2011) (rejecting the Ninth’s Circuit’s position that “an ‘egregious violation’ is nothing
more than a ‘bad faith’ violation” because “the Fourth Amendment prohibits only
‘unreasonable’ searches and seizures and the Ninth Circuit’s standard applies whenever ‘a
reasonable officer should have known’ his conduct was illegal”). The First, Second, Third,
Fourth, and Eighth Circuits have held that the exclusionary rule applies in removal
proceedings where a violation is considered “egregious” under the “totality of the
circumstances.” 	See, e.g., Corado-Arriaza v. Lynch, 844 F.3d 74, 78 (1st Cir. 2016);
Yanez-Marquez v. Lynch, 789 F.3d 434, 459 (4th Cir. 2015); Oliva-Ramos v. Att’y Gen. of

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Since 	Lopez-Mendoza, 	the 	Supreme 	Court 	has 	not 	addressed 	the
exclusionary rule in the immigration context. 	However, where, as here, a
controlling circuit court has held that the exclusionary rule may apply if
immigration 	officials 	commit 	an 	egregious 	violation 	of 	the 	Fourth
Amendment, a respondent who moves to exclude evidence must establish “a
prima facie case before [DHS] will be called on to assume the burden of
justifying the manner in which it obtained the evidence.’” 	Matter of
Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) (citation omitted); see also
Sanchez v. Sessions, 904 F.3d 643, 653 (9th Cir. 2018) (applying the
burden-shifting framework from Matter of Barcenas in determining whether
evidence 	should 	be 	suppressed).4 	The 	Immigration 	Judge 	correctly
concluded the respondent has not made this showing. 	Thus, DHS was not
required to justify how it obtained the information in the Form I-213, and
suppression under the exclusionary rule was not warranted.
The evidence in the Form I-213 was obtained as a result of a lawful
investigatory stop. See Terry v. Ohio, 392 U.S. 1, 30 (1968) (allowing a brief,
investigatory stop under the Fourth Amendment when the officer has
reasonable, articulable suspicion that criminal activity is afoot); see also
United States v. Cortez, 449 U.S. 411, 417 (1981) (noting that the Fourth
Amendment applies to brief investigatory stops, including the stop of
a vehicle). Immigration officers may “seize” an individual under the Fourth
Amendment through a temporary detention to investigate whether that
person is in the country unlawfully so long as the officer can “articulate
objective facts providing a reasonable suspicion that [the subject of the
seizure] was an alien illegally in this country.” Orhorhaghe v. INS, 38 F.3d
U.S., 694 F.3d 259, 279 (3d Cir. 2012); Puc-Ruiz v. Holder, 629 F.3d 771, 778–79 (8th
Cir. 2010); Almeida-Amaral v. Gonzales, 461 F.3d 231, 234–37 (2d Cir. 2006). The Sixth
and Seventh Circuits have acknowledged that the exclusionary rule may apply in
immigration proceedings if there is an “egregious” violation but have neither explicitly
defined egregiousness, nor found circumstances justifying exclusion. See Nolasco-Gaspar
v. Holder, 581 F. App’x 546, 546–47 (6th Cir. 2014) (per curiam); Gutierrez-Berdin
v. Holder, 618 F.3d 647, 652–53 (7th Cir. 2010). Finally, the Fifth, Tenth, and Eleventh
Circuits have either not addressed the issue, or suggested that the exclusionary rule does
not apply in removal proceedings. See Meza v. U.S. Att’y Gen., 789 F. App’x 790, 797
(11th Cir. 2019) (per curiam); Luevano v. Holder, 660 F.3d 1207, 1212 (10th Cir. 2011);
Escobar v. Holder, 398 F. App’x 50, 53 (5th Cir. 2010) (per curiam).
4 	According to the Ninth Circuit, to warrant the suppression of evidence based on an
egregious violation of the Fourth Amendment, a court must first determine whether the
Fourth Amendment was violated and second whether the violation was egregious.
Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994). 	However, the Ninth Circuit has
stated that a court may decline to address the first step and focus only on whether the
egregiousness prong has been satisfied. See Martinez-Medina v. Holder, 673 F.3d 1029,
1034 (9th Cir. 2011).

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at 	497 	(alteration 	in 	original) 	(citation 	omitted); 	see 	also 	8 	C.F.R.
§ 287.8(b)(2) (2021) (codifying this standard into the regulations).5
Physical characteristics suggestive of ethnicity or ancestry are not,
standing alone, a reasonable basis to stop and question an individual
regarding 	his 	immigration 	or 	citizenship 	status. 	United 	States
v. Brignoni-Ponce, 422 U.S. 873, 886–87 (1975); Sanchez, 904 F.3d at 650–
51; Gonzalez-Rivera v. INS, 22 F.3d 1441, 1452 (9th Cir. 1994). 	Here,
however, the record establishes that the ICE officers who stopped the
respondent had reasonable suspicion to do so. 	As noted, the ICE officers
were conducting surveillance in Encinitas, California, seeking to arrest a
previously removed individual with a final order of removal when they
observed the respondent, who resembled the suspect, exit the apartment
complex where the subject was believed to live, enter a vehicle, and drive
away. The respondent’s resemblance to the person the officers were seeking
to arrest, and his presence in the same location where this person resided, are
reasonable, articulable, objective facts justifying a brief, investigatory stop
of the respondent to determine if he was the subject for whom they were
searching. 	Terry, 392 U.S. at 30; see also Cortez, 449 U.S. at 417;
Orhorhaghe, 38 F.3d at 497; 8 C.F.R. § 287.8(b)(2).
The respondent speculates the ICE officers knew he was not the target of
their investigation when they showed him and his son a photograph of the
target and asked if they knew the individual, and the officers should have
then terminated the encounter immediately. The Immigration Judge was not
required to accept the respondent’s interpretation of the record in this regard.
The Immigration Judge found that the ICE officers observed the respondent
physically resembled their target—a resemblance the respondent does not
deny—and was present in the same location where the target was thought to
reside. 	These findings are not clearly erroneous. 	See Anderson v. City of
Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.”).
Thus, the ICE officers had a reasonable suspicion that the respondent was
the target of their warrant. 	See, e.g., Terry, 392 U.S. at 5–6 (holding that
there was reasonable suspicion justifying a stop when the officer observed
two individuals pacing back and forth in front of a store, peering into the
store window, and periodically conferring). 	After the officers asked for
identification and the respondent’s son produced a foreign identification
document and the respondent stated he had no identification, the facts
supported the ICE officers’ continued suspicion and justified reasonably
5 	The respondent does not argue on appeal the ICE officers who stopped and arrested him
violated 8 C.F.R. § 287.8(b)(2), and we consider any arguments in this regard to be waived.
See, e.g., Matter of V-A-K-, 28 I&N Dec. 630, 630 n.2 (BIA 2022).

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extending the length of the stop. 	See Rodriguez v. United States, 575 U.S.
348, 350–54 (2015) (explaining that the permissible length of the seizure is
limited by the seizure’s objective and only becomes unlawful when the
seizure is prolonged beyond the time reasonably necessary to complete that
objective); see also 8 C.F.R. § 287.8(b)(2) (stating that an immigration
officer “may briefly detain the person for questioning” (emphasis added)).
Because there is no clear error in the Immigration Judge’s finding that the
stop was nothing more than a routine law enforcement action, the respondent
has not established a prima face case of a Fourth Amendment violation—
much less an egregious violation—and was not entitled to a hearing on his
suppression motion at which he could cross-examine the ICE officers
involved in his arrest and detention and DHS would be required to justify
how it obtained the information in the Form I-213. See Matter of Barcenas,
19 I&N Dec. at 611; see also Maldonado v. Holder, 763 F.3d 155, 160–63
(2d Cir. 2014) (holding that no suppression hearing is required where an
affidavit on its face is insufficient to conclude an egregious constitutional
violation took place).
Moreover, counsel’s argument in the respondent’s appellate brief that the
“only logical conclusion” is that the stop was the result of “unlawful racial
profiling” is not evidence. See, e.g., Matter of J.J. Rodriguez, 27 I&N Dec.
762, 765–66 (BIA 2020) (noting that statements by counsel are not evidence
and are not entitled to evidentiary weight). 	Unsupported assertions and
speculation have no evidentiary value and are insufficient to establish a prima
facie case that an investigatory stop was racially motivated or an egregious
violation of the Fourth Amendment, and thus they do not warrant a
suppression hearing. 	Matter of Wong, 13 I&N Dec. 820, 822 (BIA 1971)
(stating that “a mere demand for a suppression hearing is not enough to cause
one to be held,” especially where statements in a motion for suppression lack
specificity and detail, are “general, conclusory or based on conjecture,” or
are not “based on personal knowledge”).
Finally, we reject the respondent’s assertion that the Form I-213 should
be suppressed because the ICE officers violated his statutory and regulatory
rights. 	First, we discern no violation of section 287(a)(2) of the INA,
8 U.S.C. § 1357(a)(2) (2018), which permits an immigration officer to
conduct a warrantless arrest where the officer has “reason to believe that the
alien so arrested is in the United States in violation of any such law or
regulation and is likely to escape before a warrant can be obtained for his
arrest.” 	“The phrase ‘has reason to believe’ has been equated with the
constitutional requirement of probable cause.” Tejeda-Mata v. INS, 626 F.2d
721, 725 (9th Cir. 1980) (citation omitted). The ICE officers had a “reason
to believe” the respondent was in the United States in violation of law when,
during the stop, the respondent stated he had no identification and then made

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the uncoerced admission that he was unlawfully in the United States. See id.
(holding that an uncoerced admission that the individual was not from the
United States constituted “a clearly sufficient basis for [a] warrantless
arrest”). Further, as explained in United States v. Quintana, there is “reason
to believe” an individual in a vehicle would likely escape before a warrant
could be obtained. 	623 F.3d 1237, 1241 (8th Cir. 2010); see also United
States v. Reyes-Oropesa, 596 F.2d 399, 400 (9th Cir. 1979) (concluding that
a warrantless arrest was proper under section 287(a)(2) when an individual
working in a garage presented a forged resident card to immigration officers).
Second, the respondent’s argument that the ICE officers violated 8 C.F.R.
§ 287.3(c) (2021) by not advising him, at the time of his warrantless arrest,
that any statement he made could be used against him in a subsequent
proceeding is foreclosed by binding precedent. 	The Board and the Ninth
Circuit have held that this regulation only requires immigration officers to
advise a respondent of his or her right against self-incrimination after DHS
has 	placed 	the 	respondent 	in 	removal 	proceedings. 	Matter 	of
E-R-M-F- 	& 	A-S-M-, 	25 	I&N 	Dec. 	580, 	585 	(BIA 	2011); 	see 	also
Samayoa-Martinez v. 	Holder, 558 F.3d 897, 901–02 (9th Cir. 	2009).
Because the alleged violation occurred before the initiation of removal
proceedings, 	8 	C.F.R. 	§ 	287.3(c) 	is 	inapplicable. 	Accordingly, 	the
Immigration Judge properly admitted the Form I-213 into the record.
III. CONCLUSION
For the foregoing reasons, the Immigration Judge properly denied the
respondent’s motion to suppress and terminate proceedings. The respondent
has not otherwise challenged his removability or sought relief from removal.
The Immigration Judge granted the respondent the benefit of voluntary
departure, and the record reflects the respondent submitted timely proof of
having paid the voluntary departure bond. 	Accordingly, the appeal is
dismissed, and the period of voluntary departure is reinstated.
ORDER: The respondent’s appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart the
United States, without expense to the Government, within 60 days from the
date of this order or any extension beyond that time as may be granted by
DHS. See section 240B(b) of the INA, 8 U.S.C. § 1229c(b); see also 8 C.F.R.
§ 1240.26(c), (f) (2021). In the event a respondent fails to voluntarily depart
the United States, the respondent shall be removed as provided in the
Immigration Judge’s order.

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NOTICE: 	If a respondent fails to voluntarily depart the United States
within the time period specified, or any extensions granted by DHS, the
respondent shall be subject to a civil penalty as provided by the regulations
and the statute, and shall be ineligible for a period of 10 years for any further
relief under sections 240B, 240A, 245, 248, and 249 of the INA, 8 U.S.C.
§§ 1229b, 1255, 1258, 1259 (2018).
WARNING: If a respondent files a motion to reopen or reconsider prior
to the expiration of the voluntary departure period set forth above, the grant
of voluntary departure is automatically terminated; the period allowed for
voluntary departure is not stayed, tolled, or extended. 	If the grant of
voluntary departure is automatically terminated upon the filing of a motion,
the penalties for failure to depart under section 240B(d) of the INA, 8 U.S.C.
§ 1229c(d), shall not apply. See 8 C.F.R. § 1240.26(e)(1).
WARNING: If, prior to departing the United States, a respondent files
any judicial challenge to this administratively final order, such as a petition
for review pursuant to section 242 of the INA, 8 U.S.C. § 1252, the grant of
voluntary departure is automatically terminated, and the alternate order of
removal shall immediately take effect. 	However, if the respondent files
a petition for review and then departs the United States within 30 days of
such filing, the respondent will not be deemed to have departed under an
order of removal if the respondent provides to DHS such evidence of his or
her departure that the ICE Field Office Director of DHS may require and
provides evidence DHS deems sufficient that he or she has remained outside
of the United States. The penalties for failure to depart under section 240B(d)
of the INA, 8 U.S.C. § 1229c(d), shall not apply to a respondent who files a
petition for review, notwithstanding any period of time that he or she remains
in the United States while the petition for review is pending. 	See 8 C.F.R.
§ 1240.26(i).