Immigration 101: Voluntary Departure

A grant of voluntary departure isn’t technically a form of relief from removal, but it can provide some important benefits if you are facing the prospect of removal from the US and no other forms of relief are available to you. You won’t be able to stay in the US, but you will be given a specified amount of time (usually between 2-4 months) to make your own arrangements to leave the country. Voluntary departure allows you to leave the US without having an “order of removal” on your record.

An order of removal means that you won’t be able to come back to the US for a long time. In most circumstances, departing under an order of removal means that you are inadmissable for ten years after you leave. If this is the second time you have been removed, you will be inadmissible for twenty years, and you’ll be permanently inadmissible if you have been convicted of an aggrevated felony. However, if you are granted voluntary departure, you can reapply for admission to the US at any time as long as you leave within the allotted time period.

There are two types of voluntary departure that you can request once you have been placed in removal proceedings. First, you can agree to voluntarily depart the US before your removal proceedings are concluded. This is called pre-conclusion voluntary departure. To be eligible, you must:

  1. Make a request for voluntary departure before your case is scheduled for a merits hearing (also called an individual or evidentiary hearing).
  2. Admit that you are removable as charged in your Notice to Appear.
  3. Withdraw any pending applications you have for relief from removal
  4. Show that you have not been convicted of an aggravated felony, and that you aren’t deportable under any security-related grounds (for instance, activities relating to terrorism, espionage, persecution of others, etc.)

The immigration judge may also set additional conditions, such as requiring you to post a bond or show that you have a valid travel document (such as an unexpired passport) that will allow you to return to your home country. If you can meet these requirements, and the immigration judge decides that you deserve voluntary departure as a matter of discretion, the judge will grant you a specific period of time in which to leave the country.

If you accept voluntary departure and then fail to leave the country within the time allotted, the consequences can be severe. You can be fined up to $5,000, and you may be ineligible for various forms of immigration relief for the next ten years.

You can request voluntary departure at the very end of your proceedings before the immigration judge. This is called post-conclusion voluntary departure, and the rules are slightly different. The benefit of post-conclusion voluntary departure is that it comes after the immigration judge has made a decision in your case. If you believe you are eligible for some form of relief from removal, you’ll have an opportunity to present your case in immigration court. If you lose in court, you can then apply for post-conclusion voluntary departure. You may be eligible for post-conclusion voluntary departure if:

  1. You have been physically present in the US for at least one year prior to being served with a Notice to Appear and placed in removal proceedings.
  2. You can show that you have been a person of good moral character for the last five years.
  3. You are not deportable because of a conviction for an aggravated felony, or any of the security-related grounds.
  4. You can show that you have the means to depart the US, and that you fully intend to do so.

Just like with pre-conclusion voluntary departure, the immigration judge may set additional conditions. The maximum period of time the immigration judge can grant for post-conclusion voluntary departure is 60 days.

If you accept voluntary departure and then fail to leave, you can face serious consequences, including large fines and a 10-year period of ineligibility for certain forms of immigration relief.

For many, voluntary departure is a last resort. If you are in removal proceedings and are considering requesting a grant of voluntary departure, it’s important to consult with an experienced immigration attorney to determine if there are any forms of relief from removal that you haven’t already considered. Even if you’re out of options, you should still speak with an attorney so that you can maximize your chances of obtaining this discretionary grant.

This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.

The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.

Tags: attorney, detention, ice, deportation, removal, immigration 101, uscis, immigration, voluntary departure

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