## Facts

- The respondent, a native and citizen of Mexico, last entered the United States without inspection on March 25, 1997.
- He previously entered the United States in 1987 as a nonimmigrant and had two U.S.-citizen children.
- He had no criminal convictions and volunteered at his church.
- He had numerous traffic citations, including repeated driving without a license.
- He had departed the United States voluntarily and returned unlawfully five times.
- In removal proceedings, he sought voluntary departure before proceedings concluded under INA § 240B(a).
- The Immigration Judge found him inadmissible for entry without inspection, denied voluntary departure in discretion, and ordered removal to Mexico.
- The IJ cited the respondent’s repeated unlawful reentries after prior voluntary departures, traffic misconduct, and the likelihood of future unlawful return.

## Issues

1. Whether INA § 240B creates distinct forms of voluntary departure available before conclusion of removal proceedings under § 240B(a) and at conclusion under § 240B(b).
2. Whether the five-year good-moral-character and financial-means requirements of § 240B(b) apply to pre-conclusion voluntary departure under § 240B(a).
3. Whether INA § 240B(c) bars eligibility when the respondent previously received voluntary departure under former INA § 244(e) and then reentered unlawfully.
4. Whether discretionary evaluation under Matter of Gamboa remains applicable to § 240B(a) and § 240B(b), and how discretion operates under each.

## Decision

- The Board dismissed the appeal and affirmed the removal order.
- The Board held § 240B provides two voluntary-departure stages: pre-conclusion under § 240B(a) and post-conclusion under § 240B(b).
- The Board held the five-year good-moral-character and financial-means requirements apply to § 240B(b) but not to § 240B(a).
- The Board held § 240B(c)’s repeat-grant restrictions apply only to prior voluntary departure granted under § 240B, not to prior grants under former § 244(e); therefore, the respondent was statutorily eligible to apply.
- Despite statutory eligibility, the Board upheld the IJ’s discretionary denial based on the respondent’s repeated immigration violations, traffic misconduct, and likelihood of unlawful reentry.

## Legal Principles

- INA § 240B establishes distinct voluntary-departure frameworks: § 240B(a) (before conclusion of proceedings) and § 240B(b) (at conclusion), with different statutory prerequisites.
- The statutory requirements of § 240B(b), including five years of good moral character and proof of financial ability to depart, do not apply to § 240B(a) applications.
- INA § 240B(c) bars based on reentry after a prior voluntary-departure grant apply only when the prior grant was under § 240B, not when the prior grant was under former INA § 244(e).
- Voluntary departure under both § 240B(a) and § 240B(b) requires a favorable exercise of discretion, evaluated by balancing favorable and unfavorable factors identified in Matter of Gamboa.
- Even under § 240B(a)’s broader discretionary authority, repeated immigration violations and related misconduct may justify denial despite family ties, community service, and absence of criminal convictions.

## Conclusion

The Board interpreted INA § 240B to provide separate pre- and post-conclusion voluntary-departure mechanisms, limited § 240B(b)’s heightened prerequisites to post-conclusion relief, and held § 240B(c) does not treat prior § 244(e) grants as a statutory bar; nevertheless, it affirmed denial of voluntary departure in discretion due to repeated unlawful reentries and adverse conduct.


Matter of Arguelles, 22 I. & N. Dec. 811 (B.I.A. 1999) (en banc)