By Robert L. Reeves and Nancy E. Miller
Aliens in removal proceedings are faced with the very real possibility of being deported from the United States. During the course of those proceedings, the non-citizen may request relief in the form of adjustment of status, cancellation of removal, asylum, waivers from removal or various combinations of the same. Sometimes, the alien is not eligible for any of those forms of relief. Sometimes, the alien is statutorily eligible for relief but the facts do not make a strong case. Either the immigration judge or the alien’s attorney may then discuss the possibility of taking voluntary departure in order to avoid a deportation order. The question the alien then faces is whether he or she should take voluntary departure. Many issues must be considered in order to make an informed decision in this matter.
The maximum amount of time that an immigration judge can give an alien to voluntarily depart the United States is 120 days. This amount is only available at the beginning of proceedings (with very few exceptions). In addition, the granting of that amount of time requires that the alien waive all rights to appeal. If the alien accepts this form of voluntary departure, he or she should plan on no longer living in the United States in no more than 119 days from the date of the order.
If the alien elects to pursue other relief in a hearing on the merits and that relief is denied, the maximum amount of voluntary departure time the immigration judge can give is 60 days. The alien may pursue an appeal of the denial of the other relief and is entitled to remain in the United States during the pendency of that appeal. While the matter is on appeal before the Board of Immigration Appeals (BIA), the 60 day clock is stopped. However, it begins to run the day the BIA dismisses the appeal. At that point, if the alien elects to file a petition for review with the U.S. Court of Appeals, he must also file a motion to stay removal. However, the act of filing the petition for review vacates the voluntary departure grant and the alien then has a deportation order just as if he had never accepted voluntary departure in the first place.
If the alien fails to depart the United States during the period of voluntary departure, the order automatically becomes an order of removal (deportation). The judge does not need to issue any additional order. This is important for several reasons. An alien with a removal order is ineligible to apply for adjustment of status, change of status, suspension of deportation or cancellation of removal for five years for deportation cases or ten years under removal cases. Additionally, an alien who was granted voluntary departure and failed to leave during the requisite time is barred from relief for a period of ten years. These periods run concurrently (together).
If the alien acquires a new basis for a green card after the judge makes a decision on the case, the alien must file a motion to reopen the removal proceedings in order to apply for that relief. Filing such a motion vacates the voluntary departure grant. Therefore, if the motion is denied, the alien no longer has the ability to leave under voluntary departure.
If the alien leaves on his own after the period of voluntary departure has run, he is considered to have self-deported. He does not escape the negative consequences of failing to leave on time. He still incurs the ten year bar that a removal order carries. He may be able to obtain a waiver of that bar and return to the United States in less than ten years if he can show sufficient hardship. It is a difficult standard to meet.
Whether he leaves on time or after the expiration of the voluntary departure time period, he faces serious problems that will affect his ability to return to the United States. If he has been in unlawful status in the United States for a period of one year or more, once he leaves the United States, he incurs a ten year bar from returning. In order to apply for a waiver of that bar, he must show that his U.S. citizen or lawful permanent resident parent or spouse would suffer extreme hardship if he were not permitted to return. Children are not qualifying relatives for purposes of this waiver. (If he has been in unlawful status for more than six months but less than one year and leaves under court-ordered voluntary departure, he does not incur the three year bar.)
Since the alien who has one year or more of unlawful presence but leaves on time under voluntary departure incurs the same ten year bar as the alien who is forcibly removed by the government, the alien may well wonder what the advantage is of accepting voluntary departure. It is a good question – one that should be discussed in depth with an attorney who is experienced and knowledgeable in immigration law.