Extended Voluntary Departure: Limiting the Attorney General’s Discretion in Immigration Matters

Fifteen times in the past quarter-century, the Attorney General has decreed that aliens of certain nationalities could temporarily remain in the United States regardless of their visa status. Government officials have characterized these grants of blanket extended voluntary departure (EVD) as a means of protecting aliens from life-threatening conditions in their homelands. The Attorney General’s actions were apparently undertaken for humanitarian reasons and went largely unnoticed by the public.

Part I of this Note defines EVD and distinguishes it from related forms of deportation relief. Part II describes the Employees Union court’s holding. The evolution of American perceptions of immigration law is laid out in Part III and the concept of “communitarianism” is explored. Part IV investigates the source of EVD and concludes that EVD arises not from the discretionary enforcement of the immigration laws, but from the voluntary departure provisions of the Immigration and Nationality Act of 1952 (INA). Thus, Part V finds that EVD determinations should be subject to narrow judicial review for abuse of discretion under the Administrative Procedure Act (APA) and urges that a “reasons requirement” be imposed on the Attorney General. Part VI concludes by integrating EVD into the communitarian model.