The issued a ruling this Thursday that establishes a clear and strict rule: those who accept voluntary departure and fail to meet the deadline are barred for 10 years from applying for residency, cancellation of removal, or other immigration benefits, and this consequence does not disappear even if they later file a motion to reopen with new evidence.
The decision, identified as Matter of Ontiveros-Diaz, 30 I&N Dec. 222 (BIA 2026), is a binding precedent for all immigration judges in the country, including the courts in Miami and Krome.
The case that led to the ruling involves an immigrant —identified in the records as D.O.D.— who lost his application for cancellation of deportation and was granted a voluntary departure deadline until June 3, 2025. He did not leave. Two weeks after that deadline expired, his attorney David L. Wilson filed a motion to reopen, presenting new evidence: diagnoses of autism and post-traumatic stress disorder for two of his U.S. citizen children, and a new individualized educational plan for a third child.
The BIA, with a presentation by Judge Gemoets and the participation of Judges Chaban and Picos, denied the motion.
The panel established two general rules. The first: violating a voluntary departure agreement automatically triggers a 10-year bar as outlined in section 240B(d)(1)(B) of the Immigration and Nationality Act (INA), which restricts access to cancellation of removal, adjustment of status, change of status, registry, and new voluntary departure.
The only exception recognized by law is the Violence Against Women Act (VAWA).
Este fallo de la BIA es solo uno de los muchos cambios que afectan a quienes viven o buscan regularizar su estatus en Estados Unidos. Sigue todos los detalles en nuestra sección de
The second rule is the one that closes the avenue many immigrants believed was available: filing a motion to reopen in order to provide new evidence regarding a previous application —in this case, the cancellation of deportation— does not eliminate the consequences of non-compliance.
The BIA rejected the argument that "further relief" refers only to completely distinct applications; according to the Board, the term also encompasses new requests within the categories already covered by the law.
The moment the motion is presented is crucial. According to federal regulations (8 CFR §1240.26(e)(1)), if the motion is filed before the deadline for voluntary departure, it automatically terminates and the alternative removal order comes into effect, but the 10-year penalties do not apply.
If it is presented after the deadline —as happened in this case— the consequences are already activated and no subsequent motion can reverse them. The BIA also added that, even without the 10-year penalty, the new evidence submitted would not have changed the outcome of the case.
The ruling has direct relevance for Cubans with I-220A or deportation orders who are considering accepting voluntary departure under the belief that they will be able to regularize their status later through the Cuban Adjustment Act. This precedent makes it clear that this strategy effectively shuts that door for a decade.
The consequences of the 10 years are compounded by fines. A previous precedent from the BIA regarding fines for non-compliance with voluntary departure —Matter of R-P-L-, signed in August 2026— confirmed penalties ranging from $1,000 to $5,000.
The resolution from this Thursday also includes the usual warning about potential civil fines under section 274D of the INA, which in extreme cases can reach million-dollar amounts. A federal judge in Florida upheld a fine of $668,000 in October against a Honduran woman who ignored her deportation order.
This ruling is part of a series of stricter precedents issued by the BIA between October and November 2026, which have restricted access to bail, deportation stays, and case reopenings.
The lawyer Willy Allen has repeatedly warned about the risks of voluntary departure for Cubans: "My recommendation has always been and will always be: Cuban with I-220A, if you are not detained and want to fight, do not accept voluntary departure."
Given the complexity of these rules and their irreversible consequences, experts recommend consulting an immigration attorney before making any decisions regarding voluntary departure.
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