Voluntary Departure

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Voluntary departure is a category of relief from removal that allows a foreign national to escape a final order of removal. Aliens seeking voluntary departure ought to carefully consider their options.

If an immigration judge grants voluntary departure and the foreign national timely departs, he was effectively not deported. Voluntary departure helps some foreign nationals more than others. Deportation often carries a penalty of five, ten, or more years during which the foreign national may not return to the United States. But since 1997, those unlawfully present in the United States for a year or longer are subject to a ten year bar to reentering the US. Many aliens in removal proceedings are subject to this bar and voluntary departure will not lift the ten year penalty anyway.

Voluntary departure also should not be confused with being allowed to leave the United States voluntarily, which is often called Self Deportation.  In many cases, it is possible to negotiate with Department of Homeland Security (DHS) the ability to return home voluntarily.  Especially when the foreign national has children who will accompany him to the foreign country, DHS often allows the foreign national to depart using ordinary transportation.  DHS usually wants to see your plane, train or bus tickets, proof that you've terminated your lease, mortgage, or other housing arrangement as of a specific date, and proof that you have some travel document that will allow you to enter the country you seek to return to, for example a passport.

Benefits of Voluntary Departure

  • No stigma of an order of deportation or removal on your record
  • No bar to readmission under 8 USC 1182(a)(9)(A)
  • No criminal penalty for illegal reentry after voluntary departure unlike illegal reentry after deportation, which is a serious crime under 8 USC 1326

Drawbacks of Voluntary Departure

  • You have to waive your right to appeal
  • The period of time during which you can make a motion to reopen could be cut from 90 days to 60 days or even less
  • If you fail to timely depart by the date you promised to, you face serious penalties including fines, ineligibility for ten years to adjust status, apply for cancellation of removal and other forms of relief from removal. 8 USC 1229c(d)

Types of Voluntary Departure

There are three types of voluntary departure:

  1. Pre-Hearing Voluntary Departure is a discretionary form of relief that the judge may grant if the alien (1) requests voluntary departure before or at the master calendar hearing, (2) requests no other relief, (3) concedes removability, (4) waives appeal, and (5) has not been convicted of an aggravated felony.  INA 240B(a). The key for pre-hearing voluntary departure is that you must ask for it early before any meaningful testimony is taken, because it is a sort of reward for saving the court and DHS resources.  The judge has wide discretion to grant or deny pre-hearing voluntary departure even if you meet the five requirements above.  If the judge grants the application, she may allow you up to 120 days to depart the United States.
  2. Voluntary Departure by Stipulation is available at any time before the completion of the final hearing if the alien and DHS agree to it.  8 CFR 1240.26(b)(2).  The parties may agree to a period of up to 120 days.
  3. Post-Conclusion Voluntary Departure is available at the conclusion of the removal hearing if the alien: (1) was physically present in the United States for at least one year before being served with the Notice to Appear, (2) was a person of good moral character for at least five years preceding the voluntary departure application, (3) must not be deportable as an aggravated felony or terrorist (only applies to convictions on or after 11/18/1988), (4) must establish by clear and convincing evidence the ability to leave at your own expense and the intention to do so, and (5) must have the financial ability to post a bond in an amount determined by the Immigration Judge within five days of the order.

Strategies for Voluntary Departure

For aliens who are subject to the ten year bar for accuring a year or more of unlawful presence, voluntary departure does not eliminate this ten year penalty, which is separate from any removal proceedings.  But if the alien has a US citizen or permanent resident spouse or parent and can prove that the spouse or parent will suffer extreme hardship if the government does not "waive" the penalty and allow the alien to reenter the United States, the alien may be able to obtain a waiver of the ten year penalty.  So for aliens who have a "qualifying relative" and who can prove extreme hardship, voluntary departure is a more important remedy.

Another important consideration is when to make the application for voluntary departure.  As you can see above, post-conclusion voluntary departure requires the alien to prove good moral character, but pre-hearing voluntary departure and voluntary departure by stipulation do not.  Good moral character is established, among other ways, through testimony and cross examination.  Sometimes testimony in court can create more problems than it ameliorates.  If this may be the case, seeking voluntary departure pre-hearing or by stipulation can reduce the testimony needed to qualify for voluntary departure.  But on the other hand, post-conclusion voluntary departure allows you to see whether you prevailed in your case.

Finally, although it is a very bad idea to reenter the United States illegally regardless of whether the alien was ordered removed, or granted voluntary departure, an illegal entry after an order of removal carries serious criminal penalties.  Although we would never advise a client to reenter the United States illegally, the fact is that if the alien is the sort of person who may do that, voluntary departure may reduce the likelihood and severity of any later criminal charges.

Extensions of Voluntary Departure

If you are granted voluntary departure, the Department of Homeland Security can extend it if they want to.  The District Director with jurisdiction over the alien's place of residence has exclusive authority to extend an order of voluntary departure issued by an immigration judge.  Matter of Ozcan, 15 I.&N. Dec. 301 (BIA 1975).  If you have personal, family or other issues that make it difficult for you to depart within the period allowed in your order of voluntary departure, you should try asking the Department of Homeland Security if they can grant you a few extra weeks or months to allow you to get your things in order.  But make sure to ask nicely because the District Director has sole and absolute discretion over whether to grant your request.

What Do You Do Once Granted Voluntary Departure?

If the immigration judge grants you voluntary departure, there are a few things you will need to do.  Some voluntary departure orders require the alien to post a bond.  It is crucial to post the bond within the time limit allowed by the judge.  You must post the bond by visiting your local Immigration and Customs Enforcement Office, which is usually located in the same building as the local USCIS District Office.

You must additionally obtain a Form G-146 from Immigration and Customs Enforcement before you leave the United States.  To get this form, you must visit Immigration and Customs Enforcement in person with a valid, unexpired passport, the judge's order granting voluntary departure, the bond paperwork, and an airline ticket to your destination country bearing your name.  Obviously, you are going to have problems if the date of travel is after the expiration of the period you were given to depart the United States.  You can likewise expect problems if you have a roundtrip ticket.  Regardless of whether a roundtrip ticket is cheaper or there are other reasons for buying one, it is generally best not to present Immigration and Customs Enforcement with a roundtrip airline ticket.

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