Voluntary departure is a form of relief for an alien who is subject to removal.
While voluntary departure carries the advantage of avoiding detention and allowing an alien, if eligible, to apply for admission at some future time, a violation of a voluntary departure order will result in stiff penalties.
Before requesting voluntary departure an alien in deportation proceedings should consult with an experienced immigration attorney.
An alien may request voluntary departure either prior to the conclusion of removal proceedings or at the conclusion of removal proceedings.
It is more difficult to get voluntary departure if the request is made at the end of removal proceedings.
The Department of Homeland Security (DHS) has sole discretionary authority to permit voluntary departure, while DHS or an immigration judge has authority to grant an order of voluntary departure.
Prior to the Conclusion of Removal Proceedings
To obtain permission from DHS to depart voluntarily, the alien must not be deportable on the grounds of that he or she was convicted of an aggravated felony or was involved in terrorist activities.
An order for voluntary departure will be granted only if the applicant:
- Requests Voluntary Departure prior to or at the master calendar hearing of the removal proceeding;
- Does not Request any other asylum relief and withdraws all pending requests for relief;
- Admits the charges and concedes removability;
- Waives appeal; and
- Has not been convicted of an aggravated felony and is not removable on security or terrorist activity grounds.
Usually the alien will be ordered to leave the country within 120 days and, in some cases, will be required to post a voluntary departure bond that will be returned after the alien complies with the voluntary departure order.
At the Conclusion of Removal Proceedings
The eligibility requirements for voluntary departure are more difficult to meet after an immigration trial has taken place.
The alien must:
- Have resided for one year prior to the date of the Notice to Appear;
- Have been a person of good moral character for 5 years preceding the application for voluntary departure;
- Not have been convicted of an aggravated felony or removable on security or terrorist activity grounds;
- Have established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so;
- Post a voluntary departure bond in an amount the immigration judge deems necessary to ensure departure; and
- Not have been previously permitted to depart voluntarily after having been found inadmissible for being present without being admitted or paroled.
The grant of voluntary departure at the conclusion of a removal proceeding is usually valid for no more than 60 days.
If the alien fails to leave within the specified time:
- The voluntary departure order may be automatically vacated and replaced with an order of removal
- The voluntary departure bond will be forfeited
- The alien may be required to pay a civil fine, and
- The alien will be ineligible for 10 years for further grants of voluntary departure, adjustment of status, change of status, and cancellation of removal
While the denial of voluntary departure cannot be reviewed by the courts, it can be reviewed in an administrative appeal and should always involve the services of an immigration attorney.