Voluntary Departure is a form of discretionary relief from removal that is often viewed as an option of last resort because it does not allow an alien to remain in the United States. Those who apply for, and are granted voluntary departure must return to their home country at their own expense, within a given time period set by an immigration judge.
Benefits and Disadvantages of Voluntary Departure
The most commonly cited benefit of voluntary departure is that it allows an alien to avoid the consequences of a formal removal order. Formal removals can include fines and temporary or permanent bars to re-admission into the United States.
Voluntary departure will not make it easier for an alien to re-enter the United States if they were here unlawfully, without status before the order was entered. If this is the case, an alien may still be barred from re-entry for a number of years, regardless of whether they voluntarily departed.
Posting Bonds and Leaving Within a Given Time Period
When an alien is granted voluntary departure, they must leave the United States within a period of time specified by an immigration judge. In most cases, an alien is required to post a voluntary departure bond of at least $500 to ensure they leave during the allotted time period. If voluntary departure is granted before the completion of removal proceedings, an alien must depart within 120 days. If voluntary departure is granted at the end of removal proceedings, an alien must depart within 60 days.
Automatic Termination of a Voluntary Departure Order
A voluntary departure order may terminate automatically if certain events occur:
1. A Petition of Review is Filed
If a petition to review an immigration judge’s decision or other type of a judicial challenge is filed, the alternate order of removal (that is issued based on the outcome of the petition) will take effect. If the alien departs within 30 days of filing the petition for review and gives the Department of Homeland Security (DHS) proof of departure and evidence that they remain outside of the United States, the departure will not be considered a removal.
2. Filing a Motion to Re-open or Reconsider
If an alien files a motion to reopen or have their case reconsidered during his or her voluntary departure period, the filing automatically terminates the voluntary departure order and the alternate removal order takes effect. An alien who files this type of motion after their voluntary departure period has expired will be considered to have overstayed because their departure order will still be in effect.
3. Failure to Post Bond
If an alien fails to post the required voluntary departure bond within five days of an immigration judge’s order, an alternate order of removal goes into effect. If an alien does not post bond, but departs within 25 days of the failure to post bond and provides DHS with proof of departure and evidence that they are residing outside of the United States, the departure will not be considered a removal.
Consequences of Failing to Depart
Under the immigration laws, aliens who do not voluntarily depart will be issued a civil fine that can range in cost from $1000 to $5000 AND will be deemed ineligible to receive the following forms of relief for 10 years: cancellation of removal, adjustment of status, registry, voluntary departure, or a change of nonimmigrant status. Aliens should only apply for an order of voluntary departure if they intend to and are able to timely depart and satisfy any other conditions imposed.
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