Matter of Ontiveros-Diaz Explained: Voluntary Departure Bar Holds

The Board of Immigration Appeals issued Matter of Ontiveros-Diaz, 30 I&N Dec. 222 (BIA 2026), Interim Decision #4272, on November 5, 2026. The decision holds that a person who fails to leave the United States within a voluntary departure period becomes ineligible for certain immigration benefits for 10 years, and that filing a motion to reopen afterward to submit new evidence on a prior cancellation application does not relieve the person of that consequence.

Voluntary departure is permission to leave the United States on your own, at your own expense, by a set deadline. It spares you a formal removal order and the bars to returning that come with one. In exchange, you promise to leave on time. Matter of Ontiveros-Diaz confirms that the promise carries real weight: break it, and a decade of eligibility for the most common forms of relief disappears.

The respondent in this case filed his motion to reopen fourteen days after his voluntary departure period ended. He was well within the 90-day deadline for motions to reopen, and his motion still failed. The gap between those two deadlines is where people lose their cases, and it is the most important lesson in this decision.

Matter of Ontiveros-Diaz is the thirty-second precedential decision in roughly eleven weeks that shifts immigration law in the government’s direction. It is also the Board’s third precedent decision in a single week, following Matter of Pierre-Louis on October 30 and Matter of Cruz Aijiaco on November 2.

What Happened in Matter of Ontiveros-Diaz

The respondent applied for cancellation of removal for nonpermanent residents under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). That form of relief allows certain long-term residents to obtain a green card if they show, among other requirements, that their removal would cause exceptional and extremely unusual hardship to a qualifying U.S. citizen or permanent resident family member, such as a spouse or child. His qualifying relatives were his three U.S. citizen children.

The Immigration Judge denied cancellation but granted voluntary departure. On April 4, 2025, the Board dismissed his appeal and denied his request to remand. It also reinstated the voluntary departure order for 60 days, which set his deadline to depart on or before June 3, 2025.

He did not leave. On June 17, 2025, fourteen days after the deadline, he filed a motion to reopen to submit new evidence supporting his cancellation application. The new evidence described a new Individualized Education Plan for his eldest child, an autism diagnosis and accommodation plan for his second child, a post-traumatic stress disorder diagnosis for his youngest child following a dog attack, and additional records about his second child’s cardiac condition. DHS opposed the motion, and the Board asked both parties for supplemental briefing on whether reopening relieves a person of the consequences of violating a voluntary departure agreement.

What the Board Decided

The Board denied the motion on two independent grounds. Its headnotes state the first holding in two parts:

• A violation of a voluntary departure agreement makes a person ineligible for certain immigration benefits for a 10-year period.
• Filing a motion to reopen to submit new evidence on a prior application for cancellation of removal does not relieve the person of the consequences of failing to depart.

As a second, alternative ground, the Board held that even without the bar, the new evidence would not likely change the outcome of the cancellation case. We address each ground below.

The 10-Year Bar Under INA § 240B(d)

The statute is direct. Under INA § 240B(d)(1), 8 U.S.C. § 1229c(d)(1), a person who is permitted to depart voluntarily and voluntarily fails to depart within the time specified faces two penalties. The first is a civil penalty of $1,000 to $5,000. The second is ineligibility, for 10 years, to receive any further relief under the voluntary departure statute and the statutes governing cancellation of removal, adjustment of status, change of nonimmigrant status, and registry. Immigration Judges must give notice of these penalties when they grant voluntary departure under INA § 240B(d)(3).

The regulations then draw a bright line based on timing. Under 8 C.F.R. § 1240.26(e)(1), a motion to reopen or reconsider filed before the voluntary departure period expires automatically terminates the grant of voluntary departure. The alternate order of removal takes effect, but the penalties for failing to depart do not apply. Under 8 C.F.R. § 1240.26(e)(2), a motion filed after the period has already expired does not affect the voluntary departure period at all, and the penalties stand.

The Supreme Court addressed the tension between voluntary departure and motions to reopen in Dada v. Mukasey, 554 U.S. 1 (2008), and the rule creating this timing line took effect in January 2009. The respondent here filed after his period expired, so he fell on the wrong side of the line.

Why Reopening Could Not Undo the Bar

The respondent argued that the bar was irrelevant to his motion. In his view, the statute bars only “further” relief, meaning new applications, while he sought only to add evidence to an application he had already filed. He also argued that once proceedings are reopened, there is no longer a final order of removal, so the consequences of the earlier violation should fall away.

The Board rejected both arguments. Applying the ordinary meaning of the statutory text, and citing Mullin v. Doe, 609 U.S. 324 (2026), for that interpretive principle, the Board reasoned that voluntary departure is itself the relief Congress granted. A person who violates the voluntary departure agreement is barred from “any further relief” of the listed kinds, and a previously filed cancellation application falls within that phrase. The Board found it significant that Congress placed the penalties inside the voluntary departure statute itself, while nothing in the motion to reopen provision suggests that reopening erases them.

The Board also relied on the history of the 2009 rule. When the Department of Justice adopted 8 C.F.R. § 1240.26(e)(2), it stated in the rule’s preamble that it was declining to follow earlier court decisions suggesting that a grant of reopening would vacate the voluntary departure order and its penalties. Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review, 73 Fed. Reg. 76,927, 76,931 (Dec. 18, 2008). The Board reasoned that the conduct triggering ineligibility is the violation itself, and reopening would not invalidate a violation that had already occurred.

Finally, the Board pointed to the exceptions Congress did write. INA § 240B(d)(2) exempts certain survivors of domestic violence who file under the Violence Against Women Act (VAWA) when the abuse was at least one central reason for overstaying. Because Congress created that exception and no other for cases like this one, the Board concluded that it lacked equitable authority to create one.

The 60-Day and 90-Day Deadline Problem

Two deadlines start running the day the Board or the Immigration Judge issues a final decision granting voluntary departure.

• The voluntary departure deadline. A grant at the end of removal proceedings cannot exceed 60 days under INA § 240B(b)(2), 8 U.S.C. § 1229c(b)(2).
• The motion to reopen deadline. A motion to reopen generally must be filed within 90 days of the final administrative order under INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i).

For a person who received voluntary departure, the 90-day deadline is misleading. The motion is technically timely for 90 days, but a motion filed after day 60 arrives after the voluntary departure period has expired and triggers the 10-year bar. In practice, the voluntary departure deadline is the real deadline for any motion that seeks relief covered by the bar.

One rule works in your favor. In Monsalvo Velázquez v. Bondi, decided April 22, 2025, the Supreme Court held that a voluntary departure deadline falling on a weekend or legal holiday extends to the next business day. That case arose from Colorado, where the Tenth Circuit had held that the deadline expired on a Saturday; the Supreme Court reversed and adopted the rule the Ninth Circuit had followed since Meza-Vallejos v. Holder, 669 F.3d 920 (9th Cir. 2012). The extension helps only at the margins. It does not turn a 60-day period into a 90-day one.

A petition for review in federal court works differently. Under 8 C.F.R. § 1240.26(i), filing a petition for review before departing automatically terminates the grant of voluntary departure and puts the alternate order of removal into effect. The rule provides that the penalties for failing to depart voluntarily do not apply in that situation. The person does give up the benefits of voluntary departure, so the choice deserves careful discussion with counsel before the petition is filed.

Why the New Hardship Evidence Did Not Help

The Board also denied the motion on an alternative ground that reaches far beyond voluntary departure cases. A motion to reopen must present new evidence that is material and was previously unavailable, and a person seeking reopening to pursue relief that was already denied carries a “heavy burden” of showing that the new evidence would likely change the result. Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992).

The Board concluded that the respondent’s evidence was supplemental to evidence the Immigration Judge had already considered. He had previously presented evidence of his youngest child’s PTSD, his second child’s autism screening and cardiac condition, and his eldest child’s specialized educational services. The new diagnoses and plans added detail to that record without changing its nature.

The Board then applied its recent precedent on hardship. The Immigration Judge had found that the children’s educational and medical resources would not be affected by the respondent’s removal because the children would remain in the United States with their mother. The Board cited Matter of Buri Mora, 29 I&N Dec. 186 (BIA 2025), which the Third Circuit declined to disturb in June 2026, for the rule that economic loss and family separation do not establish the required hardship where the qualifying relatives stay in the United States and their medical care continues. It also cited Matter of Calderon-Hernandez, 25 I&N Dec. 885 (BIA 2012), for the assumption that a parent who remains will care for and support the child, absent evidence to the contrary.

For families pursuing cancellation, this alternative holding may matter more than the voluntary departure holding. It signals that evidence of a child’s medical or educational needs, however serious, will carry little weight unless the record shows how the parent’s removal would interrupt that care or why the remaining parent cannot provide it.

What Matter of Ontiveros-Diaz Does Not Change

• A motion to reopen or reconsider filed before the voluntary departure deadline still terminates the grant and avoids the penalties under 8 C.F.R. § 1240.26(e)(1).
• The bar applies only when the failure to depart is voluntary. Under Matter of Zmijewska, 24 I&N Dec. 87, 94-95 (BIA 2007), a person who, through no fault of their own, was unaware of the order or was physically unable to depart has not voluntarily failed to depart. The respondent here made no such claim.
• The VAWA exception in INA § 240B(d)(2) remains available to qualifying survivors of battery or extreme cruelty.
• The bar covers the forms of relief listed in INA § 240B(d)(1)(B). Protection-based claims, including asylum and withholding of removal, arise under other statutes, though they carry their own motion requirements and bars.
• The weekend and holiday rule from Monsalvo Velázquez v. Bondi still governs how the voluntary departure deadline is counted.

What to Do If You Were Granted Voluntary Departure

• Find your decision and write down the exact date your voluntary departure period ends. If that date falls on a weekend or legal holiday, the deadline moves to the next business day.
• Treat that date as your real deadline for any motion. Do not rely on the 90-day motion to reopen deadline.
• If you have new evidence or a new family petition, contact an immigration attorney immediately. Any motion needs to be filed before your voluntary departure period ends.
• If you plan to leave, keep proof of your departure, such as a boarding pass or a stamped passport showing you left the United States.
• If something outside your control prevented you from leaving on time, such as a serious illness or never receiving notice of the order, speak with an attorney about whether your failure to depart was involuntary.
• If you have already missed your deadline, do not assume all options are closed. An attorney can review whether any form of relief outside the bar remains available to you.

What Attorneys Handling Voluntary Departure Cases Should Do

• Calendar the voluntary departure deadline separately from the motion to reopen deadline on every grant, including grants the Board reinstates on appeal, and apply the next-business-day rule from Monsalvo Velázquez.
• Advise clients in writing, at the time of the grant, that any motion seeking relief covered by INA § 240B(d)(1)(B) must be filed before the voluntary departure period ends.
• Where new evidence is still being gathered, file the motion before the deadline with the strongest evidence available. A thorough motion filed one day late cannot avoid the bar, while a timely motion can.
• Before filing a petition for review, walk the client through 8 C.F.R. § 1240.26(i) and the consequences of terminating voluntary departure.
• Screen every client who missed a deadline for a Matter of Zmijewska involuntariness claim and for VAWA eligibility under INA § 240B(d)(2), and document the facts supporting either claim.
• In cancellation cases, build the hardship record around Matter of Buri Mora: show specifically how removal would disrupt the child’s care or why the remaining parent cannot meet the child’s needs.

Frequently Asked Questions

What is voluntary departure?

Voluntary departure is permission from an Immigration Judge or the Board to leave the United States on your own by a specific deadline. If you leave on time, you avoid a formal removal order. If you do not, the alternate order of removal takes effect and the penalties under INA § 240B(d) apply.

What forms of relief does the 10-year bar block?

The bar covers further voluntary departure, cancellation of removal, adjustment of status, change of nonimmigrant status, and registry. It lasts 10 years.

I filed my motion to reopen within 90 days. Isn’t that enough?

Not if you had voluntary departure and filed after your voluntary departure period ended. Matter of Ontiveros-Diaz holds that a motion filed after that deadline does not avoid the 10-year bar, even if it was filed within the general 90-day period.

Does filing a motion to reopen before my deadline help?

Yes. Under 8 C.F.R. § 1240.26(e)(1), a motion filed before the voluntary departure period ends automatically terminates the grant, and the penalties for failing to depart do not apply. You will lose the benefits of voluntary departure, and the alternate order of removal will take effect, so discuss the decision with an attorney first.

What if my deadline falls on a weekend?

Under Monsalvo Velázquez v. Bondi, decided by the Supreme Court in April 2025, a voluntary departure deadline that falls on a weekend or legal holiday extends to the next business day.

What if I could not leave because of an emergency?

The bar applies only to a voluntary failure to depart. If you were physically unable to leave, or never learned of the order, through no fault of your own, you may have an argument under Matter of Zmijewska. Gather documents that prove what happened and speak with an attorney.

Where can I find Matter of Ontiveros-Diaz?

Matter of Ontiveros-Diaz, 30 I&N Dec. 222 (BIA 2026), Interim Decision #4272, is a precedent decision of the Board of Immigration Appeals decided November 5, 2026. It is available here and through the Department of Justice Executive Office for Immigration Review website.

Why Novo Legal

Novo Legal Group is a bilingual, community-rooted human rights firm. Every attorney on our team is fluent in English and Spanish. Our litigation team handles removal defense, cancellation of removal, motions to reopen, appeals to the Board of Immigration Appeals, and petitions for review before federal courts of appeals including the Ninth and Tenth Circuits. When a client receives voluntary departure, we calendar both deadlines on the day of the decision and advise the client in writing about what each one means. If you or a family member has a voluntary departure order or a pending cancellation case, contact us. We will tell you what we would do given your specific facts.

Related Reading

• Matter of Pierre-Louis Explained: BIA Curbs Reopening to Adjust Status
• Matter of Cruz Aijiaco Explained: Driving Violations Can Defeat Bond
• Matter of Yang Explained: BIA Narrows LPR Cancellation Discretion
• Matter of S-N-K-C- Explained: Late Amendments Can Defeat Credibility