R-C-R ( 2020 )

Cite as 28 I&N Dec. 74 (BIA 2020) Interim Decision #3994
Matter of R-C-R-, Respondent
Decided August 31, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) After an Immigration Judge has set a firm deadline for filing an application for relief,
the respondent’s opportunity to file the application may be deemed waived, prior to a
scheduled hearing, if the deadline passes without submission of the application and no good
cause for noncompliance has been shown.
(2) The respondent failed to meet his burden of establishing that he was deprived of a full
and fair hearing where he has not shown that conducting the hearing by video conference
interfered with his communication with the Immigration Judge or otherwise prejudiced him
as a result of technical problems with the video equipment.
FOR RESPONDENT: David J. Rozas, Baton Rouge, Louisiana
FOR THE DEPARTMENT OF HOMELAND SECURITY: Dawn M. Carter, Assistant
Chief Counsel
BEFORE: Board Panel: MULLANE, KELLY, and GORMAN, Appellate Immigration
Judges.
GORMAN, Appellate Immigration Judge:
In a decision dated December 13, 2019, an Immigration Judge found the
respondent removable and ordered him removed after determining that he
failed to timely submit an application for asylum, withholding of removal,
and protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture”). 1 The
respondent has appealed from that decision. The appeal will be dismissed.
1
Removal proceedings before the Immigration Judge in this matter were completed in
Richwood, Louisiana, where the respondent was located and the hearing was docketed.
The Immigration Judge conducted the hearing remotely from the administrative control
Immigration Court in Batavia, New York, via video conference pursuant to section
240(b)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(2)(A)(iii)
(2018). An administrative control court creates and maintains records of proceedings for
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala, who entered the
United States on March 13, 2019. The Department of Homeland Security
(“DHS”) detained the respondent and charged him with removability under
sections 212(a)(6)(A)(i) and (7)(A)(i)(I) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1182(a)(6)(A)(i) and (7)(A)(i)(I) (2018), as an alien who is
present in the United States without being admitted or paroled and as one
who had no valid entry document at the time he applied for admission.
At a video conference hearing held on November 6, 2019, the respondent,
who remained detained, appeared without counsel and admitted the factual
allegations and charges of removal against him. 2 Through an interpreter, he
indicated that he understood “more Spanish than Mam,” and his proceedings
continued with interpretation in the Spanish language. The respondent
indicated his desire to apply for asylum, withholding of removal, and relief
under the Convention Against Torture and was given an Application for
Asylum and for Withholding of Removal (Form I-589) to complete. 3 The
Immigration Courts within an assigned geographical area. See 8 C.F.R. § 1003.11 (2020).
The circuit law applied to proceedings conducted via video conference is the law governing
the docketed hearing location, as opposed to the location of the administrative control court.
The docketed hearing location in Richwood, Louisiana, is within the geographic area of
the United States Court of Appeals for the Fifth Circuit. Therefore, like the Immigration
Judge, we apply the law of that circuit. See, e.g., Luziga v. Att’y Gen. of U.S., 937 F.3d
244, 250 (3d Cir. 2019) (applying Third Circuit law where the Immigration Judge appeared
by video conference from Arlington, Virginia, (outside the circuit) to preside over
proceedings in York, Pennsylvania (within the circuit)); Medina-Rosales v. Holder, 778
F.3d 1140, 1143 (10th Cir. 2015) (stating that “the law of the circuit where the video
conference hearing is held is the applicable law” and holding that the docketed hearing
location does not change merely because an Immigration Judge appears by video
conference from a different location). But see Chavez-Vasquez v. Mukasey, 548 F.3d 1115,
1118 n.1 (7th Cir. 2008) (“Venue is determined by the location of the immigration court
rather than the by location from which witnesses appear via teleconference.”); Ramos
v. Ashcroft, 371 F.3d 948, 949 (7th Cir. 2004) (denying the Government’s request to
transfer the proceedings to a different circuit because “the alien may petition for review in
the circuit where the immigration court is located”).
2
The Immigration Judge gave the respondent the procedural advisals required by the
regulations, explained the removal charges against him, took pleadings, and found the
respondent removable as charged. See 8 C.F.R. § 1240.10(a)(1)–(6), (c) (2020). The
respondent has not challenged the Immigration Judge’s finding of removability on appeal,
so that issue is not before us. See, e.g., Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec.
496, 496 n.1, 498 n.3 (BIA 2018) (noting that an issue addressed in an Immigration Judge’s
decision is waived when a party does not challenge it on appeal).
3
The Immigration Judge gave the following explanation to the respondent: “You must
fill out that application in the English language, you must answer all the questions truthfully,
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Immigration Judge explicitly instructed the respondent to submit the
completed application to the Immigration Court no later than December 6,
2019, and advised him that his opportunity to file the application would be
deemed waived if he failed to comply with the deadline. 4 She also notified
the respondent that his next hearing would be scheduled for January 14,
2020.
Despite the Immigration Judge’s explicit instructions, the respondent did
not file an application for relief from removal by the December 6, 2019,
deadline. After an additional week had passed, the Immigration Judge issued
a written order on December 13, 2019, finding that the respondent had
waived his opportunity to file the application and ordering him removed.
On appeal, the respondent argues that the Immigration Judge erred in
finding that he had waived his right to apply for relief and in ordering his
removal prior to the hearing scheduled for January 14, 2020. The respondent
claims that the Immigration Judge violated his right to due process by
requiring him to file the application a month before the next hearing, not
allowing him to file an application at that hearing, and not letting him explain
the reasons for missing the deadline. The respondent further contends that
because he was not given an opportunity to appear at the next scheduled
hearing, the record is incomplete and not subject to meaningful review.
Additionally, the respondent argues that he was denied a full and fair
hearing because his removal proceedings were conducted via a video
conference at which he was unrepresented, detained, and had a Spanish
translator. According to the respondent, he “might easily have been
confused” about the nature and purpose of the second hearing as a result of
these conditions. We review these questions of law de novo. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2020).
and if there’s any papers or documents that you’d like to attach to that asylum application,
regarding your fear of return to Guatemala, if those papers or documents are in the Spanish
language, they must be translated to the English language and there must be a certificate of
translation which establishes that the person who performed the translation was qualified
to do so. Do you understand?” The respondent indicated that he understood.
4
The Immigration Judge specifically advised the respondent as follows: “I’m going to
reset your case to another date to give you time to prepare that application and submit it to
the Court. My next date is going to be January 14th, 2020 at 10:00 a.m. I’m going to
require that you submit the asylum application to the Court on or before December 6th,
2019. If the Court does not and has not received your application on or before that date,
I am going to find that you have abandoned your request for relief. So, it’s very, very
important that you submit the asylum application to the Court as well as a copy to the
Government no later than December 6th, 2019. Do you understand?” The respondent
replied, “Yes.” The Immigration Judge then suggested that he get a lawyer for his removal
proceedings to help him fill out the application. When asked again if he understood, the
respondent said, “Yes.”
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II. ANALYSIS
An alien who faces removal is entitled to a full and fair removal hearing
under both the Act and the Due Process Clause of the Fifth Amendment.
See Santos-Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020) (“The
Fifth Amendment’s Due Process Clause protects individuals in removal
proceedings.” (citation omitted)); Vetcher v. Barr, 953 F.3d 361, 370 (5th
Cir. 2020) (stating that “removal proceedings must be conducted according
to standards of fundamental fairness”), petition for cert. filed (U.S. June 26,
2020) (No. 19-1437); Matter of M-A-M-, 25 I&N Dec. 474, 479 (BIA 2011)
(“Included in the rights that the Due Process Clause requires in removal
proceedings is the right to a full and fair hearing.”); see also section
240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b)(4)(B) (2020) (providing that
“the alien shall have a reasonable opportunity to examine the evidence
against the alien, to present evidence on the alien’s own behalf, and to
cross-examine witnesses presented by the Government”).
To establish that his due process rights were violated, the respondent must
prove that there was a deficiency or violation and that he was prejudiced by
it. See Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir. 2018) (“To prevail
on a claim regarding an alleged denial of due process rights, an alien must
make an initial showing of substantial prejudice.”); Matter of D-, 20 I&N
Dec. 827, 831 (BIA 1994) (per curiam) (noting that an alien has been denied
a fair hearing “only if he has been prejudiced by some deficiency so as to
deprive him of due process”); Matter of Santos, 19 I&N Dec. 105, 107 (BIA
1984) (stating that “an alien must demonstrate that he has been prejudiced by
a violation of a procedural rule or regulation before his deportation
proceeding will be invalidated”). The respondent has not shown that his
rights were violated or that he suffered prejudice in his removal proceedings.
A. Waiver of an Application for Relief From Removal
The Immigration Judge did not err in requiring the respondent to file an
application a month prior to his next scheduled hearing, rather than allowing
him to submit it at that hearing. “Immigration Judges have broad discretion
to conduct and control immigration proceedings and to admit and consider
relevant and probative evidence.” Matter of Interiano-Rosa, 25 I&N Dec.
264, 265 (BIA 2010); see also section 240(b)(1) of the Act; 8 C.F.R.
§§ 1003.36, 1240.1(c), 1240.7(a) (2020). Immigration Judges also “have
authority to set filing deadlines for applications and related documents.”
Matter of Interiano-Rosa, 25 I&N Dec. at 265; see also 8 C.F.R. § 1003.31(c)
(2020) (providing authority for Immigration Judges to “set and extend
time limits for the filing of applications and related documents”). The
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Immigration Judge gave the respondent explicit instructions regarding the
filing date and clearly warned him that his application for relief would be
deemed waived if it was not timely filed.
According to 8 C.F.R. § 1003.31(c), if an application “is not filed within
the time set by the Immigration Judge, the opportunity to file that application
. . . shall be deemed waived.” See also Choge v. Lynch, 806 F.3d 438,
440 (8th Cir. 2015) (holding that 8 C.F.R. § 1003.31(c) “clearly states
the [Immigration Judge] has the authority to deem applications waived
when submitted after the set deadlines” (citation omitted)); Matter of
Interiano-Rosa, 25 I&N Dec. at 265) (“An application or document that is
not filed within the time established by the Immigration Judge may be
deemed waived.”). The United States Court of Appeals for the Fifth Circuit,
in whose jurisdiction this case arises, found in an unpublished decision that
an Immigration Judge properly determined that an alien’s application for
relief was deemed waived because it was not presented within the set
deadline. Mathita v. Lynch, 631 F. App’x 251, 252 (5th Cir. 2016) (per
curiam).
The respondent has not explained his failure to comply with the
Immigration Judge’s application deadline or identified any difficulties he
may have encountered that prevented his compliance. If the respondent
required more than the allotted month to complete his application prior to the
December 6, 2019, deadline, he could have filed a motion requesting that the
Immigration Judge extend the deadline for submitting his application.
See 8 C.F.R. §§ 1003.23(a), 1003.31(c) (2020). See generally 8 C.F.R.
§§ 1003.29, 1240.6 (2020) (stating that an Immigration Judge may grant a
motion or application for continuance where good cause is shown). Had the
respondent established good cause for extending the application deadline,
approval of that request would likely have been appropriate. Cf. Matter of
L-A-B-R-, 27 I&N Dec. 405, 413 (A.G. 2018) (stating that “the good-cause
standard . . . requires consideration and balancing of all relevant factors in
assessing a motion for continuance to accommodate a collateral matter”).
However, the respondent made no such request.
Once the application deadline had passed and the Immigration Judge
issued her decision, the respondent could have filed a motion asking her to
reconsider the pretermission of his application and submitted a completed
application with an explanation for his untimely filing. See 8 C.F.R.
§ 1003.23(b)(1)–(2). Alternatively, he could have filed a motion to reopen,
along with his completed application, and requested that it be considered by
the Immigration Judge. See 8 C.F.R. §§ 1003.23(b)(1), (3), 1208.4(b)(3)(ii)
(2020). Had the respondent filed either type of motion and provided good
cause for missing the deadline, reconsideration or reopening by the
Immigration Judge would likely have been appropriate. However, the
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respondent made no attempt to file such a motion with a completed
application at any time after the deadline had passed.
The respondent is also required to explain on appeal why he missed the
application deadline. See 8 C.F.R. § 1003.3(b) (2020). He contends that he
“never had the opportunity to present evidence or show cause for the missed
deadline.” However, he has not provided any explanation or a good cause
justification for missing the application deadline, despite being represented
by counsel on appeal. 5 Moreover, the respondent has not submitted a motion
to remand, along with a completed application, at any time during the
pendency of his appeal. See 8 C.F.R. §§ 1003.2(b)(1), (c)(4), 1208.4(b)(4)
(2020). Nor has he alleged facts on appeal that would constitute a prima
facie claim for any form of relief. Had the respondent done so and shown
good cause for missing the deadline, a remand may have been appropriate.
The respondent was clearly warned that his application for relief could be
deemed waived if he failed to meet the filing deadline set by the Immigration
Judge. He has presented no reasonable explanation to the Immigration
Judge, or to this Board, to excuse his failure to file the application within the
month allotted by the Immigration Judge. Because the respondent did not
timely file a completed application for asylum, withholding of removal, and
protection under the Convention Against Torture as instructed, we agree with
the Immigration Judge that he waived the right to apply for that relief and
protection from removal. See Matter of R-R-, 20 I&N Dec. 547, 549 (BIA
1992) (stating that “applications for benefits under the Act are properly
denied as abandoned when the alien fails to timely file them”); 8 C.F.R.
§ 1003.31(c).
B. Full and Fair Hearing
We are unpersuaded by the respondent’s argument that his video
conference hearing, at which he was unrepresented, detained, and had a
Spanish translator, denied him of his due process right to a full and fair
hearing.
The respondent has not explained how he was prejudiced as a result of
the conditions of his hearing. He indicated that he understood the Spanish
5
The respondent has not claimed that he was prevented from timely filing an application
because he was unrepresented. He was advised of his privilege to be represented in
removal proceedings and was given a list of free and low-cost attorneys and legal service
organizations. See 8 C.F.R. § 1240.10(a)(1)–(2) (2020). The respondent hired an attorney
to represent him in bond proceedings, and there is no indication that he was deprived of
the privilege of being represented by an attorney in removal proceedings or in helping him
complete an application for relief.
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language best, so he was provided a Spanish interpreter. 6 Our review of the
transcript shows no lack of understanding or confusion on the respondent’s
part. He made no claim at any time during the hearing that he could not
understand the interpreter or the Immigration Judge and, on appeal, he has
not identified any portion of the hearing where he had such difficulty. See
Matter of K-L-, 20 I&N Dec. 654, 660 (BIA 1993) (rejecting a due process
claim where the alien showed no prejudice because he claimed to speak
English, did not request an interpreter, and “failed to specify any portion of
the hearing that he did not understand”). He was responsive to the questions
asked of him and was able to fully communicate with the Immigration Judge.
Consequently, we are not persuaded that the respondent was prejudiced as a
result of the Spanish interpretation. See Matter of D-, 20 I&N Dec. at 832
(finding there was no showing of “prejudice resulting from a deficiency” in
hearings that were conducted in English without an interpreter where the
alien indicated he spoke English, did not request an interpreter for himself,
and was able to meaningfully participate in the proceedings).
We also find no support for the respondent’s contention that his due
process rights were violated merely because the Immigration Judge
conducted his hearing by video conference. The Act and its implementing
regulations specifically provide for hearings via video conference. See
section 240(b)(2)(A)(iii) of the Act (providing that a removal “proceeding
may take place . . . through video conference”); 8 C.F.R. § 1003.25(c) (2020)
(“An Immigration may conduct hearings through video conference to the
same extent as he or she may conduct hearings in person.”). This authority
has been consistently recognized by the courts of appeals. See Vilchez
v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (recognizing that video
conference hearings are explicitly authorized by statute); Aslam v. Mukasey,
537 F.3d 110, 114 (2d Cir. 2008) (per curiam) (acknowledging that the
statutory authority accorded to Immigration Judges to conduct hearings via
video conference includes taking the testimony of witnesses); Rapheal
v. Mukasey, 533 F.3d 521, 531 (7th Cir. 2008) (stating that “Congress
specifically authorized proceedings by means of a video conference” and
rejecting the alien’s challenge to the constitutionality of the implementing
regulation).
6
An alien has a fundamental right to participate meaningfully in the removal proceedings
by having them competently interpreted into a language he or she can understand. See
Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994) (“The right of a person facing deportation
to participate meaningfully in the deportation proceedings by having them competently
translated into a language he or she can understand is fundamental.”); Matter of Tomas,
19 I&N Dec. 464, 465 (BIA 1987) (“The presence of a competent interpreter is important
to the fundamental fairness of a hearing if the alien cannot speak English fluently.”).
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Immigration Judges “must conduct immigration hearings in accord with
due process standards of fundamental fairness.” Bouchikhi v. Holder, 676
F.3d 173, 180 (5th Cir. 2012) (quoting Olabanji v. INS, 973 F.2d 1232, 1234
(5th Cir. 1992)). Due process requires that respondents in immigration
proceedings must be given an “opportunity to be heard at a meaningful time
and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (citation omitted); see also Aslam, 537 F.3d at 114 (recognizing the
applicability of the due process requirements set out by Mathews). However,
to prove a due process violation, an alien must demonstrate substantial
prejudice. See Okpala, 908 F.3d at 971.
Removal proceedings conducted by video conference do not per se
violate due process. See Vilchez, 682 F.3d at 1199 (stating that “a hearing
by video conference does not necessarily deny due process”). In fact, the
courts have generally found that such proceedings afford aliens a full and fair
hearing. See, e.g., Aslam, 537 F.3d at 115 (holding that the alien’s “due
process rights were not violated at the immigration hearing when a key
witness was permitted to provide testimony via videoconference”).
The Fifth Circuit has not yet published a decision on this issue. However,
in two unpublished decisions, the court has found the use of video conference
hearings to be fundamentally fair. See Jinquan Liu v. Holder, 566 F. App’x
333, 334 (5th Cir. 2014) (per curiam) (holding that the alien did not
demonstrate that he was prejudiced by the video conference hearing, which
was “fundamentally fair and did not result in a due process violation”); Deng
Ming Li v. Holder, 478 F. App’x 884, 887 (5th Cir. 2012) (per curiam)
(finding that the alien “failed to show that he was prejudiced by the use of
the video-conferencing format, because he did not establish that he was
precluded from meaningfully presenting his case”).
However, the potential for a video conference hearing to violate the right
to a full and fair hearing has been recognized in some circumstances. See
Vilchez, 682 F.3d at 1199 (acknowledging that “in a particular case video
conferencing may violate due process or the right to a fair hearing”); Rusu
v. INS, 296 F.3d 316, 321–24 (4th Cir. 2002) (explaining that an alien’s video
conference hearing on an asylum claim may be unfair if the fact-finder has
difficulty gauging demeanor for a credibility determination, counsel is
unable to privately confer with and advise the alien, or there are
insurmountable technological problems with the sound or video quality).
For example, a new hearing was required where the alien was unable to
review a document that was used to find her not credible and “the lack of a
fair hearing ‘actually had the potential for affecting the outcome’ of the
proceedings.” Rapheal, 533 F.3d at 531–33 (citation omitted). “Whether a
particular video-conference hearing violates due process must be determined
on a case-by-case basis, depending on the degree of interference with the full
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and fair presentation of [the alien’s] case caused by the video conference,
and on the degree of prejudice suffered by the [alien].” Vilchez, 682 F.3d at
1199–1200.
An alien who claims that removal proceedings conducted via video
conference violated due process has the burden to show that he or she was
prejudiced and denied a full and fair hearing. See id. at 1200 (holding that
the alien failed to establish that the outcome of his hearing was affected
where his claim that his credibility was compromised because of his
nervousness about testifying on video was undermined by the fact that the
Immigration Judge did not make an adverse credibility finding); Rusu, 296
F.3d at 324 (“To prevail on his contention that the video conferencing
procedures violated due process, [the alien] must show that better procedures
are likely to have made a difference in the outcome of his hearing.”). For
instance, a denial of due process has not been established where there is
insufficient evidence that the video conference equipment was unreliable or
defective. See Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir.
2007); see also Eke v. Mukasey, 512 F.3d 372, 382–83 (7th Cir. 2008)
(finding no prejudice where the alien did not explain how the video
conference format prevented the Immigration Judge from considering the
evidence in support of his claim, including his physical attributes).
The respondent has not clearly explained how having his hearing via
video conference interfered with his communication with the Immigration
Judge or otherwise prejudiced him. At the hearing, the respondent was
advised of his procedural rights. The Immigration Judge noted that he had a
lawyer for his bond hearing but told him that he also had a right to be
represented in his removal proceedings. The respondent indicated that he
understood and did not have any questions of the Immigration Judge. He
similarly acknowledged that he had a right to appeal any decision of the
Immigration Judge.
The Immigration Judge then explained the removal charges, and the
respondent indicated his understanding. Having explained each allegation in
the notice to appear, the Immigration Judge took pleadings from the
respondent. The respondent was responsive to each question, was asked
whether each allegation was true or false, and did not seek clarification or
otherwise indicate any confusion. Based on the respondent’s answers, the
Immigration Judge concluded that he was removable as charged in the notice
to appear.
There are no indicia in the transcript that the respondent and the
Immigration Judge were unable to hear or see one another. Moreover, the
respondent has not claimed that the video equipment was malfunctioning or
defective, and nothing in the transcript suggests that there were any technical
problems with the equipment. Absent technical deficiencies or other
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examples of error, we find no prejudice to the respondent. Consequently, we
conclude that the respondent has not met his burden of establishing that he
was denied a full and fair hearing as a result of the use of video conferencing.
III. CONCLUSION
After an Immigration Judge has set a firm deadline for filing an
application for relief, the respondent’s opportunity to file the application may
be deemed waived, prior to a scheduled hearing, if the deadline passes
without submission of the application and no good cause for noncompliance
has been shown. The respondent has not explained his failure to comply
with the Immigration Judge’s application deadline. Nor has he provided
good cause to justify his failure, so as to undermine the pretermission of
his application. Further, the respondent has not submitted a completed
application or alleged facts on appeal that would constitute a prima facie
claim for any form of relief. We therefore conclude that the respondent
waived the right to apply for relief from removal.
Although the respondent was detained, appeared pro se, and used a
Spanish interpreter at his video conference hearing, none of these factors,
standing alone or taken together, constitute a denial of due process. The
respondent failed to meet his burden of establishing that he was deprived of
a full and fair hearing where he has not shown that conducting the hearing
by video conference interfered with his communication with the Immigration
Judge or otherwise prejudiced him as a result of technical problems with the
video equipment. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).
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