The Immigration and Nationality Act allows an immigration judge to grant voluntary departure to foreign citizens who are facing deportation from the U.S. When granted voluntary departure, a foreign citizen is permitted to depart the U.S. at their own expense within a certain period of time rather than being subjected to order of removal. Please continue reading for additional information the types of voluntary departure, its benefits and drawbacks, etc.
Pre-Conclusion Voluntary Departure
A person may request pre-conclusion voluntary departure from an immigration judge prior to the conclusion of their removal proceedings. They would then be granted permission to voluntarily depart the U.S. within 120 days of the immigration judge’s order.
If a person accepts pre-conclusion voluntary departure, they are foregoing the opportunity of having the immigration judge approve a different application, which may very well grant them permanent resident status (green card). It may be advisable to request pre-conclusion voluntary departure, but all foreign citizens should be aware of the sacrifice they are making.
Post-Conclusion Voluntary Departure
A person may request post-conclusion voluntary departure from an immigration judge at the conclusion of their removal proceedings if their primary applications for relief are denied. An immigration judge may grant post-conclusion voluntary departure in the following instance:
• The foreign citizen was present in the U.S. for at least one year before they were served with a Notice to Appear.
• The foreign citizen has been a person of good moral character for at least 5 years before requesting voluntary departure.
• The foreign citizen is not deportable due to certain criminal offenses.
• The foreign citizen has established by clear and convincing evidence that they have the means to depart the United States and intends to do so.
When granted post-conclusion voluntary departure, a person is granted a maximum of 60 days to depart the U.S. In addition, a person granted post-conclusion voluntary departure must post a bond in an amount necessary to ensure that they will depart the U.S. The bond will be refunded to them upon satisfactory proof that they have timely departed the U.S.
Is Voluntary Departure A Good Idea?
There are many times when accepting voluntary departure is a smart thing to do. After all, a person that accepts voluntary departure and thereafter timely departs the U.S. is avoiding the harsh consequences of deportation. But, are you really going to timely depart the U.S.? Because if you do not, then you will be subjected to the following penalties:
• Civil penalty between $1,000 and $5,000.
• 10-Year Bar to being granted adjustment of status, cancellation of removal, and other forms of relief.
• The voluntary departure order automatically converts into a removal order if you fail to timely depart.
Based on the above, it may not be a good idea request voluntary departure unless you are actually planning on complying with the terms of your voluntary departure and timely leaving the U.S. This is especially applicable to people who may ultimately want to request adjustment of status. Though you may not necessarily be eligible for adjustment of status right now, what happens if you become otherwise eligible before 10 years have elapsed? If you had accepted an order of removal, you would be eligible to reopen your case and apply for adjustment of status. However, by accepting voluntary departure but not actually leaving the U.S., you are barred from adjustment of status for 10 years. Thus, in our example, you would have to continue waiting until 10 years have elapsed before you would be eligible to reopen your case and be granted your green card through adjustment of status.
Are You Subject to an Unlawful Presence Bar?
As stated above, accepting voluntary departure may be a very good option for some people. This is dependent on many factors of your case, including whether you have a way of lawfully returning to the U.S. after you have voluntarily departed.
Many people unfortunately do not have a way of returning because, as soon as they depart the U.S., they incur an unlawful presence bar that will prevent them from returning to the U.S. for 3 or 10 years. This bar would not be waived simply because you left the U.S. pursuant to a grant of voluntary departure. It is therefore important to speak with your immigration attorney about whether accepting voluntary departure is the right decision for you when you are going to need a waiver to return to the U.S. regardless.
Reeves Miller Zhang & Diza – Full-Service Immigration Law Firm
The decision whether to accept voluntary departure is not always as simple as one would think. There are benefits, but there are also potential drawbacks as well. If you are in removal proceedings and considering accepting voluntary departure, consult the skilled legal team at Reeves Miller Zhang & Diza to learn whether this is advisable.