If you are facing removal proceedings (deportation) and you have no legal means of remaining in the United States, you may qualify to request the Department of Homeland Security (DHS) or an Immigration Judge to allow you to leave voluntarily and avoid the stain of a removal order on your record. This is a very common form of relief from removal called “voluntary departure.”
Here we will discuss voluntary departure itself, the requirements to qualify for the relief, and when requesting this alternative to removal is a good idea. Equally important, we will discuss when it is not a good idea!
What Is Voluntary Departure?
Voluntary Departure, also commonly called "Voluntary Return" or “voluntary deportation,” allows a person to leave the U.S. at his or her own expense and avoid many of the immigration consequences associated with being deported. You can request voluntary departure either:
- from the DHS before to appearing before appearing in court
- from the immigration judge at your first appearance in court, or
- at the conclusion of the immigration court proceedings.
Qualifying for Voluntary Departure
The DHS has the authority to permit you to voluntarily depart prior to court proceedings, and an immigration judge has the power to grant an order of voluntary departure at the first hearing or at the conclusion of the court proceedings. However, qualifying becomes more difficult after you have been found removable at the conclusion of the proceedings.
The basic requirements for getting permission to depart from DHS or an immigration judge at the first hearing (the "master calendar") are that you must have no aggravated felony or terrorism convictions. The DHS or the immigration judge must also believe that you actually intend to depart the United States, and aren't just using this opportunity as a well to slip free of the DHS. Other basic requirements are that you must:
- withdraw any other applications for relief, such as for cancellation of removal
- admit that the DHS allegations regarding your removability are true, and
- waive your right to appeal the judge's decision on your case.
If you request voluntary departure at the conclusion of the proceedings, the immigration judge will consider all of the facts of your case and the overall impression you made during the hearing, as well as whether you seem deserving of the opportunity to voluntarily depart.
Additional requirements will also be imposed. You must:
- have been present in the U.S. for at least one year
- produce the required travel documents
- show the financial means to depart
- have been a person of good moral character for the previous five years, and
- post a bond in an amount set by the immigration judge.
Although the government offers voluntary departure as a “privilege,” it is important to understand the different effects this relief can potentially have on future entry into the United States. This may not be immediately apparent to someone who does not have professional experience in immigration court.
The Benefits of Voluntary Departure
Any time a foreign national is deported, a bar to reentry is imposed that prevents the person from returning to the U.S. for a number of years. While some reasons for removal (such as an aggravated felony or visa fraud) will carry a lifetime bar to reentering, the typical bars to reentry are:
- five years when the removal was carried out immediately upon the person attempting to enter the U.S. (expedited removal), or
- ten years when the order of removal was issued by an immigration judge.
If, before a bar to reentry expires, the person reenters or attempts to reenter the U.S. without advance permission, serious consequences will result, such as a fine, imprisonment, or both. A grant of voluntary departure eliminates the bar to reentry and therefore, the other potential consequences that can arise with an order of removal.
So, voluntary departure seems pretty simple and a good alternative to an order of removal, right? While that is true, in some situations, the benefits tend to diminish and make it less than the “privilege” it initially appears to be. This is particularly true in cases where adjustment of status to permanent resident (a green card) could possibly be attained.
Potential Downsides of Voluntary Departure
If, prior to accepting voluntary departure, you have accrued what is termed “unlawful presence,” you could be subject to the same bar to reentry that is imposed after deportation.
The Three- and Ten-Year Bars to Admission: Unlawful Presence in the U.S.
Under immigration laws, when a foreign national unlawfully present in the U.S. for more than 180 days, but less than one year, departs, inadmissibility (the bar on reentering) for a period of three years is triggered. If the person is unlawfully present for one year or more, upon departing, he or she becomes inadmissible for ten years.
If you have accumulated more than 180 days but less than one year of unlawful presence in the U.S., and are granted voluntary departure, you will be forgiven the unlawful presence and you will not be subject to the three-year bar. However, if you are unlawfully present for one year or more, you do NOT avoid the ten-year bar.
What this means is that if you could have qualified for a green card, but you did not request that relief and chose voluntary departure instead, you became subject to the ten-year bar and getting your green card just became a lot more difficult.
Note: If you filed a non-frivolous asylum application, did not engage in unauthorized employment while in the U.S., and chose voluntary departure over pursuing your claim to asylum, you will not be subject to any bars to readmission.
What If I Accepted Voluntary Departure But Have Changed My Mind?
If you requested and were granted voluntary departure but later decide it was a bad idea and you do not want to leave, contact an attorney to discuss your options. Failing to depart triggers serious consequences, such as a fine and ineligibility for certain forms of relief from removal, including voluntary departure, for ten years. Failing to depart also automatically results in your voluntary departure grant becoming a formal order of removal if certain immediate steps are not taken.