Good Moral Character for Post-Conclusion Voluntary Departure Is Assessed Through Adjudication (Post-Application Conduct May Be Considered)

I. Introduction

In Diego Arateco-Munoz v. Pamela Bondi (6th Cir. Mar. 12, 2026), the Sixth Circuit reviewed a final order of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of post-conclusion voluntary departure. The petitioner, a Colombian citizen who entered the United States in 2008 and later became removable, sought the discretionary benefit of leaving voluntarily rather than under a removal order.

The dispute arose after the BIA remanded for consideration of voluntary departure (rejecting the IJ’s earlier belief that an “arriving alien” was categorically ineligible), and the IJ then denied relief based largely on two driving while intoxicated convictions that occurred after the petitioner first requested voluntary departure in 2021 but before the remand adjudication.

The core issues were:

• Whether 8 U.S.C. § 1229c(b)(1)(B) bars consideration of post-application, pre-adjudication conduct when determining “good moral character” for voluntary departure.
• Whether the IJ exceeded the scope of the BIA’s remand by treating eligibility as reopened.
• Whether considering the later convictions (particularly after a prolonged BIA timeline) was legally erroneous because it was “fundamentally unfair.”

II. Summary of the Opinion

The Sixth Circuit denied the petition for review. It held that:

1. The good-moral-character requirement in 8 U.S.C. § 1229c(b)(1)(B) allows (indeed, requires) consideration of whether the noncitizen “is” a person of good moral character at the time of adjudication; therefore, post-application conduct before the decision may be considered.
2. The IJ acted within the remand’s scope because the BIA expressly authorized reconsideration of both eligibility and discretion for voluntary departure.
3. Even assuming the INA embeds a “fundamental fairness” requirement apart from constitutional due process, there was no legal unfairness: delay alone is insufficient, and the petitioner showed no cognizable prejudice beyond his own intervening criminal conduct.

III. Analysis

A. Precedents Cited

1. Voluntary departure framework and discretion

The court relied on Pastor-Hernandez v. Bondi, 155 F.4th 839 (6th Cir. 2025), to summarize voluntary departure’s function (avoiding certain penalties; saving removal costs) and to emphasize the Attorney General’s (and thus the agency’s) continuing residual discretion even when statutory prerequisites are met. This framing mattered because the petitioner’s “fundamental unfairness” theory attempted to convert earlier favorable character/discretion observations into something akin to entitlement on remand—an approach the court rejected.

2. Jurisdictional limits over discretionary relief

The panel grounded jurisdiction in the “questions of law” exception, citing Sarkisov v. Bondi, 160 F.4th 696 (6th Cir. 2025), which in turn quotes Patel v. Garland, 596 U.S. 328 (2022), for the principle that review of BIA decisions is “sharply circumscribed.” It also cited Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021), and the statutory provisions 8 U.S.C. § 1252(a)(2)(B) and § 1252(a)(2)(D), to separate unreviewable discretionary/factual matters from reviewable constitutional and legal questions.

The court then invoked older Sixth Circuit authorities—Sagastume v. Holder, 490 F. App’x 712 (6th Cir. 2012); Perez-Roblero v. Holder, 431 F. App’x 461 (6th Cir. 2011); and Aburto-Rocha v. Mukasey, 535 F.3d 500 (6th Cir. 2008)— to confirm that statutory interpretation and remand-scope disputes qualify as reviewable “questions of law.”

3. Standard of review and the post-Chevron landscape

For the statutory question, the court cited Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), to apply de novo review “without deference to the BIA.” This is significant beyond the immediate holding: the court signaled that interpretive outcomes must be justified by conventional tools of statutory interpretation, not agency deference. It also cited Moctezuma-Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024), for the “begin with the text” approach.

The opinion underscored the importance of verb tense in statutory interpretation, relying on Carr v. United States, 560 U.S. 438 (2010), and referencing Gundy v. United States, 588 U.S. 128 (2019) (plurality opinion). To characterize the statutory tenses, the court cited Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020). It also cited Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264 (2023), for the whole-text canon (do not interpret isolated words).

4. Comparative statutory interpretation: NACARA cases

The petitioner relied on—while the court distinguished—Cuadra v. Gonzales, 417 F.3d 947 (8th Cir. 2005), and Aragon-Salazar v. Holder, 769 F.3d 699 (9th Cir. 2014), interpreting NACARA’s good-moral-character language (“has been” for a specified period “immediately preceding” the application date) as creating a fixed lookback that excludes post-application conduct.

The Sixth Circuit did not reject those holdings; it treated them as confirming that verb choice matters. Those cases contrasted NACARA’s “has been” formulation with a now-repealed “was and is” formulation, reasoning that “was and is” expands the inquiry beyond the pre-application period. The Sixth Circuit used that comparison to bolster its own conclusion: § 1229c(b)(1)(B) similarly expands the inquiry by requiring that the applicant “is, and has been” a person of good moral character.

The court also noted (in discussing an in-circuit reference) that Serrato-Soto v. Holder, 570 F.3d 686 (6th Cir. 2009), did not resolve the issue because the conviction there fell within five years of both the application and adjudication.

5. Nunc pro tunc and equitable limits

The court cited Ramirez-Canales v. Mukasey, 517 F.3d 904 (6th Cir. 2008), for the notion that nunc pro tunc is an equitable doctrine applied “as justice requires,” but it refused to graft nunc pro tunc onto the remand where the BIA did not invoke it.

It cited Edwards v. I.N.S., 393 F.3d 299 (2d Cir. 2004), and Ramirez-Canales v. Holder, 378 F. App’x 540 (6th Cir. 2010), for the boundary that equity cannot operate in “contravention of the expressed intent of Congress.” It also cited United States v. Crowe, 614 F. App’x 303 (6th Cir. 2015), to decline addressing an inadequately briefed question (why nunc pro tunc would not contravene Congress’s intent).

6. Delay and “fundamental unfairness” analogies

On the delay argument, the panel analogized to due process principles from criminal procedure: United States v. Brown, 959 F.2d 63 (6th Cir. 1992); United States v. Smith, 94 F.3d 204 (6th Cir. 1996); and United States v. Ballato, 486 F. App’x 573 (6th Cir. 2012). These cases were used for a narrow proposition: delay alone is not enough; prejudice is required. The court found no cognizable prejudice because the “harm” was simply the opportunity to commit new crimes.

7. Cases the court expressly did not rely upon

The government referenced non-Sixth Circuit cases interpreting 8 U.S.C. § 1229b(b)(1)(B), but the court declined to rely on them for two reasons: that statute’s different text (“has been” only), and because those cases relied on Chevron deference, which is no longer controlling after Loper Bright Enters. v. Raimondo. The court listed: Mejia-Castanon v. Att’y Gen., 931 F.3d 224 (3d Cir. 2019); Rodriguez-Avalos v. Holder, 788 F.3d 444 (5th Cir. 2015) (per curiam); and Duron-Ortiz v. Holder, 698 F.3d 523 (7th Cir. 2012).

B. Legal Reasoning

1. Textual interpretation of § 1229c(b)(1)(B): “is, and has been”

The opinion’s central interpretive move is grammatical and structural:

• “Is” (present tense) signals an inquiry that includes the applicant’s moral character at the time of adjudication.
• “Has been” (present perfect) captures a backward-looking period of character, ensuring continuity over time.
• The phrase “at least 5 years” sets a minimum duration, not a cap, undermining the argument that Congress meant to freeze the evidence at the application date.
• The court rejected isolating “immediately preceding the application” from the rest of the sentence, invoking the whole-text canon.

Putting those elements together, the Sixth Circuit held that the statute does not prohibit considering conduct after the application is filed but before the agency decides the request; rather, the statute contemplates such consideration.

2. Scope of remand

The petitioner attempted to recharacterize the BIA’s remand as purely “remedial”—i.e., correcting the original legal error about “arriving alien” eligibility—so that new facts should not enter. The court disagreed because the BIA’s remand order expressly confined the case to: (i) eligibility for voluntary departure under § 1229c(b), and (ii) whether voluntary departure should be granted in discretion. That phrasing, the court held, necessarily allowed the IJ to evaluate current eligibility and current discretionary factors.

3. Rejection of nunc pro tunc as an implicit remedy

The court refused to infer that the BIA silently invoked nunc pro tunc principles. It also suggested that even if such a remedy were sought, it cannot override Congress’s temporal design for good moral character—particularly where the petitioner did not meaningfully brief why retroactive relief would align with statutory intent.

4. “Fundamental fairness” and delay

The court assumed (without deciding) that the INA might impose a freestanding “fundamental fairness” requirement, citing the petitioner’s reference to 8 C.F.R. § 1003.12, but held there was no violation on these facts. It reasoned that:

• It is not “fundamentally unfair” to apply the statute as written, even if an IJ previously made favorable character/discretion findings in a different relief context (cancellation of removal) on an earlier record.
• Delay does not itself establish unfairness; prejudice is required, and the only asserted “prejudice” was the petitioner’s intervening criminal conduct.
• The petitioner could have asked the BIA to keep the case on its active docket (per the BIA notice) but did not, weakening any equitable claim premised on the case’s procedural posture.

C. Impact

Although “not recommended for publication,” the decision articulates a clear rule that is likely to influence agency practice and litigant expectations within the Sixth Circuit:

• Eligibility for post-conclusion voluntary departure is dynamic through adjudication. Applicants cannot assume the filing date freezes the moral-character record; intervening arrests/convictions can defeat eligibility and discretion.
• Text-first statutory interpretation post-Loper Bright. The court emphasized verb tense, minimum-duration language (“at least”), and whole-text reading—methodological cues likely to recur in future immigration statutory disputes.
• Remand language matters. Where the BIA remands for “eligibility” and “discretion,” IJs may consider new, relevant developments unless the remand expressly limits the evidentiary window.
• Delay-based unfairness claims face a high bar. Absent independent, non-self-inflicted prejudice, delay alone will not support a legal challenge framed as “fundamental unfairness.”

IV. Complex Concepts Simplified

• Post-conclusion voluntary departure: Permission to leave the United States voluntarily after removal proceedings conclude, typically to avoid certain penalties and administrative costs, but it remains discretionary.
• Good moral character: A statutory eligibility requirement that looks at conduct and character over time. Here, the key point is that the statute asks whether the person currently “is” of good moral character and also “has been” for at least the prior five years.
• “At least” five years: A minimum threshold. It does not mean “only” five years or “exactly” five years.
• Scope of remand: What the BIA permits the IJ to decide after sending the case back. If the BIA says reconsider “eligibility” and “discretion,” the IJ may re-evaluate those issues on the record as it exists at the time of the new decision.
• Nunc pro tunc: A doctrine allowing an order to take effect as if it had been entered earlier. Courts treat it as equitable and limited; it cannot be used to contradict Congress’s expressed statutory requirements.
• Questions of law vs. discretion/fact: Courts may review legal interpretation (what a statute means) but generally cannot second-guess the agency’s discretionary weighing of equities unless a legal or constitutional error is shown.

V. Conclusion

Diego Arateco-Munoz v. Pamela Bondi establishes (for Sixth Circuit purposes) that the good-moral-character requirement for post-conclusion voluntary departure under 8 U.S.C. § 1229c(b)(1)(B) is not frozen at the date of application. Because Congress required that the applicant “is, and has been” a person of good moral character—combined with the minimum-duration phrase “at least”—IJs and the BIA may consider post-application, pre-adjudication conduct.

The decision also underscores that remands framed in terms of “eligibility” and “discretion” permit updated assessment, and that delay-based “fundamental unfairness” arguments require concrete, non-self-inflicted prejudice. In the broader legal landscape, the opinion is a notable example of post-Loper Bright immigration statutory interpretation: rigorous textual analysis, careful attention to grammar and structure, and explicit avoidance of now-obsolete Chevron-based reasoning.