Chicago Immigration Lawyer Blog
In Matter of Ontiveros-Diaz, the Board of Immigration Appeals held that filing a motion to reopen after a voluntary departure deadline has passed does not undo the consequences of failing to depart on time. The Board issued the decision on November 5, 2026.
What happened
The respondent applied for cancellation of removal for nonpermanent residents. The Immigration Judge denied his application, and the Board dismissed his appeal on April 4, 2025. The Board reinstated a 60-day voluntary departure period, which ended June 3, 2025.
The respondent did not depart by that deadline. On June 17, he filed a motion to reopen and offered additional evidence about his U.S. citizen children’s educational and medical needs. He argued that reopening would allow him to continue pursuing the same cancellation application, so the consequences of missing the departure deadline should not apply. The Board denied the motion.
The Board’s decision
The Board concluded that the respondent’s late-filed motion did not erase the consequences of missing the voluntary departure deadline. Under INA § 240B(d), 8 U.S.C. § 1229c(d), a person who voluntarily fails to depart on time generally becomes ineligible for 10 years for certain forms of relief, including cancellation of removal and adjustment of status. The statute also provides a limited exception for certain VAWA-based applications.
The Board distinguished a motion filed before the voluntary departure period expires from one filed afterward. Under 8 C.F.R. § 1240.26(e)(1), a motion filed before the deadline automatically terminates the voluntary departure grant, and the penalties for failing to depart do not apply. But a motion filed after the deadline does not change the expired departure period or undo penalties that have already taken effect. The respondent filed after June 3.
The Board also noted that the respondent had not alleged or shown that his failure to depart was involuntary. It therefore did not decide how the statutory bar would apply to a person who could not depart through no fault of their own.
The Board gave a separate reason for denying reopening. A motion to reopen must present new, previously unavailable evidence that could likely change the result. The Board found that the evidence about the children’s needs was largely supplemental to evidence already considered and was unlikely to change the cancellation decision.
What We Take From This
A motion to reopen and a voluntary departure deadline raise separate questions. A person may have grounds to seek reopening but still face a statutory bar because the departure deadline passed first. Anyone considering a motion while a voluntary departure period remains open should promptly assess the deadline and the effect of filing. A motion filed after the period expires may not preserve eligibility for relief.
The decision also underscores the need to support a motion to reopen with evidence that is both new and material. Evidence that adds detail to a record the agency already considered may not show that reopening would likely change the outcome.
Zneimer & Zneimer P.C. is an experienced immigration law firm in Chicago. Our attorneys assess immigration deadlines, eligibility requirements, and the evidence needed to support applications, motions, and appeals.