Voluntary departure is a form of relief for an alien who's subject to removal. While voluntary departure carries the advantage of avoiding detention and allowing an alien, if eligible, to apply for admission at some future time, a violation of a voluntary departure order will result in stiff penalties. If an alien has a valid defense against removal, it may be better to seek the assistance of an immigration attorney than to request voluntary departure.
A noncitizen can request voluntary departure either prior to the conclusion of removal proceedings and or at the conclusion of removal proceedings. However, eligibility for voluntary departure is more restrictive if it's requested at the conclusion of the proceedings.
The Department of Homeland Security (DHS) has sole discretionary authority to permit voluntary departure, while DHS or an immigration judge has authority to grant an order of voluntary departure.
Prior to the Conclusion of Removal Proceedings
To obtain permission from DHS to depart voluntarily, the alien must not be deportable on the grounds of aggravated felony convictions or terrorist activities. An order for voluntary departure from DHS or an immigration judge will be granted only if the noncitizen:
- Makes the request prior to or at the master calendar hearing of the removal proceeding
- Makes no additional requests for relief or withdraws any pending requests for relief
- Concedes removability
- Waives an appeal of all issues, and
- Has not been convicted of an aggravated felony and is not removable on security or terrorist activity grounds
The alien may be given permission or ordered to leave the country within 120 days and may be required to post a voluntary departure bond that'll be returned when the alien departs within the specified time.
At the Conclusion of Removal Proceedings
The eligibility requirements for a grant of voluntary departure are more difficult at the conclusion of removal proceedings. The alien must:
- Have been in the Unites States for one year prior to the date of the notice to appear at the removal proceeding
- Have been a person of good moral character for five years preceding the application for voluntary departure
- Not have been convicted of an aggravated felony or removable on security or terrorist activity grounds
- Establish by clear and convincing evidence that the alien has the means to depart the United States and intends to do so
- Post a voluntary departure bond in an amount necessary to ensure departure, and
- Not have been previously permitted to depart voluntarily after having been found inadmissible for being present without being admitted or paroled
The grant of voluntary departure at the conclusion of a removal proceeding is valid for no more than 60 days.
If the alien fails to leave within the specified time:
- The voluntary departure order may be automatically vacated and replaced with an order of removal
- The voluntary departure bond will be forfeited
- The alien may be required to pay a civil fine, and
- The alien will be ineligible for 10 years for further grants of voluntary departure, adjustment of status, change of status, and cancellation of removal
While the denial of voluntary departure can't be reviewed by the courts, it can be reviewed in an administrative appeal and should involve the services of an immigration attorney.
Questions for Your Attorney
- Am I eligible for voluntary departure to avoid detention even though I was convicted of a crime?
- How much time do I have to apply for voluntary departure?
- I failed to leave within the specified time to depart. What should I do now?