Voluntary departure is an agreement granted to a person who is not a citizen of the United States to leave the country, which may carry fewer negative consequences than deportation or removal. In some cases, opting for voluntary departure may be the best choice available.
A green card holder or other qualifying immigrant who applies is ordered to their home country. This step is done in an immigration court before removal proceedings or deportation proceedings. The grant of voluntary departure will then give the individual a specific time to leave the U.S. An immigration judge sets the time frame, and the trip will be at the noncitizen's expense.
Benefits and Disadvantages of Voluntary Departure
Voluntary departure is the most commonly cited form of relief. It allows a person of good moral character to leave the country without the consequences of deportation. For instance, deportation includes temporary or permanent bars to reentry into the U.S. and fines.
Benefits of Voluntary Departure
- A foreign national will not have an order of deportation or order of removal in their immigration record. The person can return to the United States much sooner than those with deportation orders. An individual with a deportation order may be prevented from coming to the U.S. for up to ten years. They may also be ineligible to avail of certain immigration benefits. This includes cancellation of removal and adjustment of status.
- A noncitizen who took voluntary departure has more ways to return to the U.S. lawfully.
- A noncitizen may be eligible to apply for a visa to return to the U.S.; or
- U.S. citizen family members may request the government to allow the noncitizen to enter the country legally through an application for permanent residence.
Disadvantages of Voluntary Departure
- A noncitizen has to leave the country voluntarily and at their own expense.
- Fines and other penalties can be imposed if a noncitizen fails to leave the country within the time frame provided. Failing to leave could hurt future applications to become a lawful permanent resident.
Eligibility for Voluntary Departure
For a noncitizen to be qualifying for voluntary departure before the hearing (pre-conclusion), the applicant must:
- File a request for voluntary departure on or before the final hearing on the application of the merits to stay in the U.S.
- Recognize that they are not allowed in the U.S. due to their unlawful presence or other grounds for inadmissibility.
- Waive or withdraw any application that allows them to stay in the country.
- Provide evidence of their intention and financial capacity to leave the country.
- Prove they are a person of good moral character without a significant criminal record.
For a noncitizen to be qualified for a voluntary departure court proceeding (post-conclusion), the applicant must:
- Show they were physically in the United States for at least one year before receiving a Notice to Appear from the U.S. government.
- Submit a bond of at least $500.
- Submit evidence of their financial ability and intention to leave the U.S.
- Show proof of good moral character for at least five years.
Requirements for an Order of Voluntary Departure
The Department of Homeland Security (DHS) or an Immigration Judge has three different stages upon which they may order voluntary departure. These stages are as follows:
- Before removal proceedings start
- Before completion of removal proceedings
- At the end of removal proceedings
Before Removal Proceedings Start
In exchange for removal, Immigration and Customs Enforcement (ICE) may allow voluntary departure for up to 120 days. The applicant must file a request and agree to the terms and conditions of voluntary departure. The DHS will present the respondent with travel documents or a passport, and may also set any other requirements necessary to ensure the timely departure of the noncitizen. A person subject to removal due to the commission of an aggravated felony or security concerns cannot avail of voluntary departure.
Before Completion of Removal Proceedings
An immigration judge may issue voluntary departure up to 120 days before the completion of removal proceedings. The Immigration judge may only provide this order if the respondent asked for it before or at the hearing or any time before the end of the proceedings.
At the End of the Removal Proceedings
At the end of the removal proceedings, the judge may provide an order for up to 60 days of voluntary departure. The judge may also provide any other conditions for voluntary departure as they may deem necessary.
Consequences of Failing to Depart
If a noncitizen fails to leave the country after being granted voluntary departure, they can be subjected to civil penalties. Included in the civil penalties are:
- A civil fine of $1,000 to $5,000; and
- Ineligibility to receive any further relief for ten years.
Seek Legal Help
Navigating the complexities of immigration law and voluntary departure can be challenging. To ensure you understand the consequences of voluntary departure and comprehend your eligibility, it is best to seek legal advice. An immigration attorney can provide you with personalized guidance throughout the process.
Specializing in immigration laws, cases, and dealing with the U.S. Citizenship and Immigration Services (USCIS), an immigration lawyer can be a powerful ally. They can help you find your best course of action and guide you to make an informed decision.
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