Matter of Velasco, 25 I&N Dec. 143 (BIA 2009).

The Supplementary Information at 73 Fed. Reg.76,936 published with the final voluntary departure rule clearly states that its provisions are prospective only. Some confusion may arise, however, from the language stating that this rule will apply to all cases pending before EOIR, or adjudicated by EOIR, on the effective date of this rule and any cases that later come before it. Cases on appeal to the Board are “pending before EOIR.” The Supplementary Information states, however, that an alien who receives a decision by an Immigration Judge granting voluntary departure on or after the effective date of this rule will be subject to the voluntary departure bond provisions of this rule as well as all other applicable provisions. In view of this language, the Board concludes that the reversal of Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006) was not given retroactive effect and that the previous regulatory provisions, as interpreted by that decision, still govern cases in which an Immigration Judge granted an alien voluntary departure prior to the effective date of the new rule. The Board notes that this ruling eliminates any unfairness to an alien who, prior to the regulatory change, chose not to post a voluntary departure bond because the Board had ruled in Matter of Diaz-Ruacho that failing to post the bond would automatically vacate the grant of voluntary departure, rather than exercise his or her unilateral right to withdraw the voluntary departure request before the expiration of the voluntary departure period.

Because the Immigration Judge granted voluntary departure to the respondent in the instant case prior to the effective date of the new rule, and because that grant was vacated under the prior regulatory scheme, as interpreted by Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), when the respondent failed to post the required bond, there was no voluntary departure order for the Board to reinstate when it dismissed the respondent’s appeal. Therefore, the Board finds that voluntary departure should not have been reinstated in the prior decision of the instant case. Accordingly, the Board vacates that portion of its February 18, 2009 order reinstating the 60-day voluntary departure period.

Further, because the respondent’s situation was controlled by the Board’s decision in Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), she is not subject to the penalty provisions of section 240B(d)(1) of the Act. Given the effective date of the new rule, its provisions, which obligate an alien who fails to pay the voluntary departure bond to nevertheless depart within the voluntary departure period or suffer the penalties for failing to do so, do not apply to her. 8 C.F.R. § 1240.26(c)(4). The motion to reconsider is therefore granted. The Board’s February 18, 2009, order reinstating the Immigration Judge’s grant of voluntary departure is vacated, which leaves the alternate order of removal to Colombia in effect.