Voluntary Departures: What you Need to Know.

What is Voluntary Departure?

Voluntary departure, sometimes referred to as voluntary return, allows a defendant to leave the United States without a removal order. Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) may grant voluntary departure as an alternative to deportation. This can happen before removal proceedings start or during them. An Immigration Judge can also grant it at the beginning or end of these proceedings. If the defendant fails to leave within the specified time, they face significant negative consequences. These include civil penalties and ineligibility for relief.

Why May Voluntary Departures Be a Better Alternative?

Voluntary departure has several advantages. It avoids a removal order, which means leaving the United States voluntarily does not result in a 10-year prohibition on reentry, unlike deportation. Additionally, voluntary departure prevents immigrants from facing automatic reinstatement of deportation if they return unlawfully. It allows the defendant to leave on their own terms, avoiding the dangers and stigma associated with being a deportee.

Prior to the Conclusion of Removal Proceedings

Before removal proceedings conclude, an immigration judge may grant a maximum of 120 days for voluntary departure. If granted, the respondent must leave at their own expense. They are not required to demonstrate financial means for departure. However, they cannot make other requests for relief from removal and must drop all appeals. The respondent must not be deportable as an aggravated felon or under terrorist grounds. Voluntary departure will not be granted if it has been previously approved since April 1, 1997.

Voluntary departure is discretionary. While good moral character is not mandatory, the respondent must show they deserve favorable discretion. Factors considered include the nature of the deportation ground, any additional immigration law violations, the seriousness and recency of any criminal record, and other evidence of bad character. An immigration judge may still grant voluntary departure despite bad character if there are compensating qualities, such as humanitarian needs, long residence, or close family ties in the United States.

The respondent must present travel documents for voluntary departure to be granted. If they lack the required documents, voluntary departure may still be granted, but they must obtain and present the documents to ICE within 60 days. ICE may extend this period up to 120 days at their discretion. If the respondent fails to secure and present the travel documents by the deadline, the voluntary departure order is automatically rescinded, and the original removal order takes effect. Presenting travel documents is not necessary if they are in ICE custody or if the respondent does not need travel documents for admission into the country.

The respondent may need to post a bond within five days after voluntary departure is granted, at the judge's discretion. The immigration judge has broader authority to grant voluntary departure before the conclusion of proceedings than at the conclusion.

At the Conclusion of Removal Proceedings

At the conclusion of removal proceedings, the requirements for voluntary departure become stricter. To qualify, a respondent must show at least one year of continuous physical presence in the United States before the notice to appear was served. They must also demonstrate good moral character for the past five years, no prior aggravated felony conviction, and both the intent and means to depart, evidenced by a valid passport or travel document.

A grant of voluntary departure at this stage cannot exceed 60 days. The judge may impose conditions, such as continued detention, to ensure compliance. The respondent must post a voluntary departure bond of no less than $500 within five business days with ICE. Failure to post the bond can negatively affect discretionary relief on appeal. Importantly, failure to post the bond does not eliminate the obligation to depart. If the respondent waives appeal rights, the alternate removal order will take effect immediately if the bond is not posted.

If voluntary departure is granted and the respondent leaves on time, the bond may be canceled and refunded with proof of departure. If the removal order is later overturned on appeal, the bond must also be returned. However, if the respondent files a motion to reopen or reconsider during the voluntary departure period, the voluntary departure order is automatically terminated, and the alternate removal order takes effect.

Failure to Depart on Time

Failure to depart by the voluntary departure deadline carries serious consequences. If the respondent does not leave by the designated date, the voluntary departure order automatically converts into a removal order. Additionally, the respondent faces a civil penalty of no less than $1,000 and no more than $5,000. A further consequence is a 10-year ineligibility bar for various forms of relief, including voluntary departure, cancellation of removal, adjustment of status, registry, and change of nonimmigrant status.

These penalties apply regardless of whether voluntary departure was granted by ICE or an immigration judge, though limited exceptions exist for certain victims of domestic violence or related abuse. Notably, the 10-year bar does not require the respondent to remain outside the United States. However, the removal order remains in effect until it is reopened or executed. Adjustment-eligible respondents may pursue a joint motion or a sua sponte motion to reopen the order, though other penalties may still apply.

Voluntary Departure for Those Who Have Already Departed

A respondent who departs the United States during pending removal proceedings without authorization from ICE’s Office of the Principal Legal Advisor is not considered to have departed under voluntary departure. They will likely receive a removal order. To avoid this, practitioners may request voluntary departure or retroactive voluntary departure by filing a written motion with the immigration judge. This should include evidence of the respondent’s departure, such as an airline ticket, travel document, or entry stamp into another country. When requesting this relief, the practitioner should ask for a one-day departure period since the respondent has already left. ICE must submit any opposition within the timeframe designated by the judge.

After Leaving

After leaving the United States, the respondent should keep all evidence of transportation out of the country. This includes airline tickets and travel documents with any notations or stamps that show they have left the United States and entered another country. Additionally, the respondent should visit the US embassy or consulate in their home country to request confirmation of departure from the United States.

Conclusion

Understanding voluntary departure is crucial for those navigating the complex immigration landscape. It provides an opportunity to leave the United States without the long-term consequences of a removal order. By following the necessary steps and understanding the implications, individuals can make informed decisions about their immigration status.

For more information on immigration processes, consider consulting with an immigration attorney. They can provide guidance tailored to individual circumstances and help navigate the intricacies of immigration law.