Voluntary Departure Constitutes Prior Deportation for § 2L2.2(b)(1) Enhancement

United States v. Murillo-Acosta, No. 13-50637 (5th Cir. May 16, 2014) (Reavley, Jones, Graves) (per curiam)

Prior to his criminal case, Murillo-Acosta received a voluntary departure from an immigration judge in 2013.  A voluntary departure provides a deadline by which the immigrant must leave the United States.  If the person does not depart by that time, the voluntary departure, a warrant of removal issues.  Murillo-Acosta complied with the voluntary departure deadline.  Later in 2013, Murillo-Acosta pled guilty to using a fraudulent visa as proof of permission to enter the United States.  At sentencing, the court applied—over Murillo-Acosta’s objection—a 2-level enhancement pursuant to U.S.S.G. § 2L2.2(b)(1) for being an “unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense[.]” 

Murillo-Acosta argues that the voluntary departure issued against him does not make him an “alien who has been deported” since he did not receive a final deportation order.  The panel rejects this argument in light of § 2L2.2(b)(1)’s specification that the deportation could be voluntary or involuntary.

Keep in mind that this decision is limited to § 2L2.2(b)(1)  which mentions both voluntarily and involuntary deportations.  This does not apply to, for example, the § 1326 element of a prior deportation or removal.  Voluntary departures are a form of immigration relief that an immigration judge can grant in lieu of deportation or removal.  8 U.S.C. § 1229c(a)(1).  A person who complies with the voluntary departure has not received a final order of deportation.  The panel’s brief decision—which mentions the district court’s reliance on decisions from other circuits addressing persons subject to deportation orders not those granted voluntary departures—can mistakenly give the impression that a voluntary departure is a deportation order, but the panel’s holding is solely based on the language of § 2L2.2(b)(1).