Can Reopening Erase the Voluntary Departure Bar? Ontiveros-Diaz Explained

Generally, no. In Matter of Ontiveros-Diaz, 30 I&N Dec. 222, decided 11/05/2026, the Board of Immigration Appeals (BIA) held that seeking reopening after the voluntary departure deadline does not erase a ten-year eligibility bar already triggered by voluntarily failing to depart. That remains true when the motion offers new evidence for an earlier cancellation application. The Board also independently rejected the motion because the additional evidence was unlikely to change the outcome. Filing before the departure deadline and qualifying for a statutory exception require separate analysis.

The reopening deadline did not extend voluntary departure

Ontiveros-Diaz sought cancellation of removal for a nonpermanent resident. On 04/04/2025, the BIA dismissed his appeal and denied remand, while reinstating a 60-day voluntary departure period ending 06/03/2025. He filed his motion to reopen on 06/17/2025. Pages 222–223 distinguish the generally applicable 90-day reopening deadline from the earlier departure deadline: having time left to request reopening did not postpone his obligation to depart.

The respondent argued that he was pursuing the same relief, rather than a new application. At pages 224–226, the BIA rejected that distinction. The words “any further relief” in 8 U.S.C. § 1229c(d)(1)(B) encompass continued pursuit of the previously denied cancellation application. The violation had already occurred; reopening would not undo it. The ten-year restriction concerns the forms of relief listed in the statute, rather than every possible immigration application.

Filing within the departure period has different consequences. Under 8 C.F.R. § 1240.26(c)(3)(iii) and (e)(1)–(2), properly filing a post-order motion to reopen or reconsider during that period automatically terminates voluntary departure, makes the alternate removal order effective immediately, and avoids the associated failure-to-depart penalties. It does not extend the departure period. A motion filed after the period expires does not erase penalties already triggered, even if reopening is later granted, subject to the statutory exception.

Why the children's additional evidence did not change the result

At page 226, the BIA reviewed a new Individualized Education Plan (IEP) for the eldest child, an autism diagnosis and specialized accommodation plan for the second child, the youngest child's post-traumatic stress disorder (PTSD) following a dog attack, and additional records concerning the second child's previously documented cardiac defect.

The question was whether this evidence would likely change the earlier hardship determination. The existing record already addressed special education, PTSD, autism screening, a neurodevelopmental disorder, and cardiac treatment. The Immigration Judge had considered the children's educational, medical, emotional, and financial needs and found that their required resources would remain available because they would stay in the United States with their mother. At pages 226–227, the BIA found the supplemental evidence similar in nature to what had already been considered and unlikely to change the outcome.

That was an independent ground for denying reopening, even assuming the voluntary departure violation did not bar relief. The decision does not establish that autism, PTSD, or special education needs can never support cancellation. It evaluates whether this record showed the legally required “exceptional and extremely unusual hardship” to the respondent's U.S. citizen children.

The decision's limits and current status

The statutory conditions matter. Footnote 1 at page 223 says Ontiveros-Diaz neither alleged nor produced evidence that his failure to depart was involuntary. The cited rule addresses circumstances such as being unaware of the order through no fault of one's own or being physically unable to depart. Section 1229c(d)(2) also protects specified VAWA-related cancellation or adjustment applications where the listed petition requirements are met and battery or extreme cruelty was at least one central reason for overstaying voluntary departure. General family hardship does not automatically establish that exception.

The final order denied reopening; it did not reopen the case for another cancellation hearing. As of 11/14/2026, EOIR continues to list this precedent in its official Volume 30 index. This review found no subsequent official material withdrawing or staying it; that is not an exhaustive review of all court litigation. A particular case requires separate attention to the departure order and warnings, filing dates, whether nondeparture was voluntary, possible exceptions, how the new evidence addresses the original reasons for denial, and current law in the applicable jurisdiction.

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