One of our clients is a stateless individual, he is a citizen of no country, who arrived inside of the U.S. and requested political asylum. His request for asylum was denied and he was ordered removed. The Immigration Judge granted him voluntary departure, but since he had no passport or valid travel document to actually leave the U.S.
A little background, our client is ethnically Palestinian, born to Palestinian parents who were living in Saudi Arabis on temporary employment visas. Saudi does not grant citizenship to Palestinians who happen to be born within their country. So, when our guy left Saudi Arabia and remained out of the country for more than 6 months, he could no longer return to Saudi. Saudi Arabia does not even issue a passport to such a situated Palestinian, he was required to petition the Egyptian Consulate for temporary travel papers.
So the fact on the ground is now, our client is under a final order of removal, violated his Voluntary Departure order, and currently on supervised release, deferred entry of action by the local Immigration and Customs Enforcement Field Office.
We currently have a Petition For Review before the Ninth Circuit Court of Appeals, and we have been placed in mediation because our guy has an approved I-130 Immigrant Visa based on marriage to a USC. So the question for us is whether our client can even adjust his status if we win and obtain a remand for adjustment.
The BIA decision on point is Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), which holds that if the aline fails to depart. through no fault of their own, cannot be said to have "voluntarily violated" the period of voluntary departure.
They hold that someone who is "physically unable to depart" falls within the "voluntariness exception" to INA 240B(d)(1), however, there has been no decision on this prong. Our guy may be the test case.