Civil Penalties Related to Failure to Comply with Voluntary Departure Does not extend to U-1 non-immigrant victims

USCIS in a Memo adopts the decision of the court in the Matter of L-S-M. While the failure to voluntary depart might still apply to some VAWA cases, the court has made clear it does not apply to U Visa Holders.

2016-0513_Matter_of_L-S-M-_Adopted_Decision_2016-03_ clarifies that the exception to the civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 non-immigrant victims of qualifying criminal activity. See sections 240B(d)(1)-(2) of the Immigration and Nationality Act. That said, the civil penalties only apply if an alien’s failure to timely depart was voluntary. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), followed. Matter of L-S-M-, Adopted Decision 2016-03 (AAO Feb. 23, 2016)

Purpose This policy memorandum (PM) designates the attached decision of the Administrative Appeals Office (AAO) in Matter of L-S-M- as an Adopted Decision. Accordingly, this adopted decision establishes policy guidance that applies to and binds all U.S. Citizenship and Immigration Services (USCIS) employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases. Matter of L-S-M- clarifies that the exception to the civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 nonimmigrant victims of qualifying criminal activity. See sections 240B(d)(1)-(2) of the Immigration and Nationality Act. That said, the civil penalties only apply if an alien’s failure to timely depart was voluntary. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), followed. Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in  removal proceedings, in litigation with the United States, or in any other form or manner.