The 10th Circuit Court of Appeals agreed that a judge's order recommending voluntary departure constituted a valid Judicial Recommendation Against Deportation (JRAD). Ultimately, however, the voluntary departure request was denied, as the Board of Immigration Appeals was allowed to use extraneous factors to deny discretionary relief such as voluntary departure, notwithstanding the JRAD.
Matter of Sanchez-Avila
Jun 14, 1996
Successfully reversed INS "repulsion" policy
(1) Under the present statutory and regulatory scheme, an Immigration Judge properly declined to order an alien excluded in absentia where the Immigration and Naturalization Service did not detain or parole the alien at the time he applied for admission to the United States, but instead returned him to Mexico with instructions to appear for an exclusion hearing at a later date.
(2) By directing an applicant for admission to return to Mexico after being served with a Notice to Applicant for Admission Detained for Hearing before an Immigration Judge (Form I-122), the Service in effect consented to the alien's withdrawal of that application when the alien elected not to return to pursue his application for admission to the United States.