Voluntary Departure May Not Be The Best Solution

Too many times I listen to sad stories from immigrants who come to my office for a free consultation: accounts of couples who are deeply in love who cannot marry because of a pending unmarried son/daughter petition, accounts of people who were given bad advice by someone whom they trusted, and accounts of people who filed asylum for their work permit but now have been deported. But in my opinion, the saddest cases involve uninformed individuals who asked the court and received voluntary departure relief, but never left.

Voluntary departure is considered a privilege. In order to receive an order of voluntary departure, the alien must show that he has been of good character for the last five years and that he is able to pay for a plane ticket with which to leave the United States. Voluntary departure was designed to give someone who is in deportation proceedings a way to get out of the country without actually getting deported. (Getting deported holds very serious ramifications which I will address in future articles.)

If you are really planning to leave the United States, voluntary departure is an appropriate option. However, if you are using the voluntary departure time and gambling that your priority date will become current, you can be taking much too great a risk.

This is a typical scenario. The alien has been placed into deportation through the asylum claim that he filed in order to get an employment authorization. Since he may have one of several possible pending petitions at the time–a labor certification, an unmarried son petition and a petition from his brother or sister, she/he asks the immigration judge for the relief of voluntary departure. She/he thinks that this will provide enough time for the petition to become current. Unfortunately, on the date of scheduled departure (usually 3 or 6 months), none of the petitions have become current. True, she/he is still in the United States unless she/he is “found” by the Immigration Service, but what they do not know, is that an order of deportation means they have lost certain very important rights.

If you have been granted voluntary departure and do not leave the country before the scheduled date of departure, you will become ineligible for certain forms of relief from “deportation” for five years from the date of scheduled departure. At the deportation hearing, the immigration judge will recite these rights and will hand over a written copy, but many people are not paying attention to what rights they can lose.

Under the amendments made to the Immigration and Nationality Act by the Illegal Immigration and Immigrant Responsibility Act of 1996 in removal proceedings, voluntary departure is only available for a maximum period of 120 days if granted prior to the completion of the proceedings, and for only 60 days after proceedings are complete. Additionally, if an alien fails to depart in the 120 or 60 days allowed, the alien may be fined up to $5000 and ineligible for an adjustment of status, cancellation of removal for 10 years!

The most important of these rights is that of adjustment of status. This means, even if you have a approved petition and the priority date becomes current, you have lost the ability to adjust your status to that of a legal permanent resident for at least five years from the date you were supposed to leave the country. None of your petitions will be of any use until 10 years have passed from your date of scheduled departure. Thus, the whole reason that you elected to go along with voluntary departure–to gamble that your priority dates would become current–has been completely lost.

Even if you leave the country within the time permitted for voluntary departure, but return without a visa or with a visa obtained by lying to a Consulate employee, you will still be ineligible for adjustment of status for five years from the date of your unlawful re-entry. If your representative is urging voluntary departure, it is time to get a second opinion fast.

Instead of gambling with your life and choosing voluntary departure as a quick and risky solution, you should first consult an attorney experienced in immigration matters to carefully evaluate your case and see if voluntary departure would be best for your individual case. It would be tragic to wait so long for your priority date and then find out that you are still not eligible to adjust to legal permanent resident status.