By Attorneys Devin M. Connolly & Nancy E. Miller
For an alien in removal proceedings, the concept of Voluntary Departure sounds like a pretty good consolation prize. They may not get a green card, but at least they are not being ordered deported. There is some truth to that statement, but Voluntary Departure has the very real potential to be more harmful than beneficial.
An alien in removal proceedings has the opportunity to fight the charges of removability by arguing that the facts or law relied on by the government are erroneous and/or to apply for relief by showing that a combination of facts and law allows them to legally remain in the U.S. The most common forms of relief include cancellation of removal, adjustment of status, waivers and asylum. When the alien is not eligible for relief or when the case is not strong, the topic of voluntary departure is often raised.
A grant of Voluntary Departure allows a person to voluntarily depart the U.S. rather than being deported. The Immigration Judge can grant up to 120 days voluntary departure at the beginning of the case or a maximum of 60 days after the relief application has been denied.
To be eligible for post-conclusion Voluntary Departure, as this latter form is often called, the alien must establish the they were physically present in the U.S. for at least one year before being placed in removal proceedings, that they have been a person of good moral character for the preceding five years, that they are not deportable under certain criminal or security grounds, that they have the means and intention to timely depart the U.S. and that if they return to the U.S., it will only be with a proper visa in their own name. The Immigration Judge will also require them to post a bond, which will be surrendered upon proof that the alien timely departed the U.S.
The alien and their attorney must decide whether to accept Voluntary Departure. The reason most often cited for accepting Voluntary Departure is that the alien avoids being ordered deported. This statement is absolutely true, but it is also incomplete. What many people don’t realize is that accepting Voluntary Departure instead of an order of deportation does not necessarily help them. And in fact, accepting Voluntary Departure may end up hurting them more than if they had simply accepted the order of deportation.
Perhaps the most common way in which accepting Voluntary Departure harms a person results when they fail to depart the U.S. within the Voluntary Departure period. If an alien does not timely depart, the grant of Voluntary Departure is automatically converted into an order of deportation. No additional steps need to be taken by the court or the government. As a result, when or if the alien actually does leave the United States, he does so under a deportation order and self-deports. In this instance the alien has already lost that which they hoped to gain – avoiding being ordered deported. And maybe even more importantly, by violating the terms of Voluntary Departure the alien is now subject to a fine up to $5,000 and is ineligible for certain forms of relief for a period of 10 years, most notably adjustment of status. This is most significant when there is a change in the alien’s personal circumstances that would otherwise make them eligible for adjustment of status, such as marriage to a U.S. citizen. They are statutorily ineligible for 10 years because they violated the terms of their Voluntary Departure.
Alternatively, the alien can timely depart the U.S. in adherence with the terms of their Voluntary Departure. Many aliens mistakenly believe that by doing so they are eligible to apply to return to the U.S. as soon as they arrive in their native country since they avoided being ordered deported. However, what the majority of those aliens don’t realize is that they are likely still barred from returning to the U.S. If the alien was unlawfully present in the U.S. for more than one year prior to departing, they are barred from returning for 10 years from the date of their departure. This bar applies regardless of whether the alien departed pursuant to Voluntary Departure.
There are rare circumstances where voluntary departure may actually benefit the alien. In some instances, it may allow the alien to avoid the 3 year unlawful presence bar (although it never allows the alien to avoid the 10 year unlawful presence bar). Before deciding whether to accept voluntary departure in lieu of asserting defenses or seeking relief, one should always consult a knowledgeable and experienced immigration lawyer. One should always have a full understanding of what they are giving up before they make an irrevocable decision.