How to Obtain a Voluntary Departure from the United States

by Brandon Gillin, Immigration Lawyer at Genesis Law Firm

There is a little-known yet highly advisable form of relief available for noncitizens who are found to be “removable” from the United States. This form of relief is called “Voluntary Departure.” The advantage of Voluntary Departure is that in many cases, there is not a bar to return to the United States if the noncitizen is otherwise eligible to return to the United States as an immigrant or nonimmigrant. That is, a noncitizen can come back to the United States without having a formal removal on his or her record. Of course, there is the obvious disadvantage to Voluntary Departure, and that is that the noncitizen must actually depart from the United States once the Voluntary Departure is granted by the Immigration Judge (“IJ”). Severe consequences result if a noncitizen who is granted Voluntary Departure fails to leave the United States: the noncitizen becomes ineligible for future Voluntary Departure, also becomes ineligible for other forms of relief from removal, and may incur thousands of dollars in penalties.

There are various stages at which a noncitizen may request Voluntary Departure. First, the noncitizen may request Voluntary Departure before removal proceedings have been initiated. At this stage, the noncitizen’s request will be made to the District Director of the Department of Homeland Security (“DHS”). Immigration & Customs Enforcement (“ICE”), an agency within DHS, may accept such a request at any of its field offices. Second, the noncitizen may request Voluntary Departure after removal proceedings have been initiated, but prior to the removal proceedings’ conclusion. At this stage, the noncitizen must appear at the Master Calendar Hearing (“MCH”) and expressly request Voluntary Departure from the IJ. The IJ may grant Voluntary Departure within 30 days after the MCH or beyond that time if stipulated to by DHS. Third, the noncitizen may request Voluntary Departure at the conclusion of the removal proceedings. This third stage is more complicated than the first two; because at this stage, the noncitizen must show that he is ready, willing, and able to leave the U.S. at his own expense, that he is an has been a good person of moral character for the previous five years, has been physically present in the U.S. for a period of at least one year immediately preceding the service of the Notice to Appear, is not removable under certain sections of the Immigration & Nationality Act (“INA”) because of having committed certain aggravated or security-related crimes, was not previously granted Voluntary Departure, and that he merits the favorable exercise of discretion. In addition, the noncitizen must show by clear and convincing evidence that he has the financial ability to depart the U.S. and that he intends to depart. In stages one and two, proving good moral character is not required.

Once you have been granted Voluntary Departure and you depart the U.S., there may be time limits on when you are eligible to legally return to the U.S. If you have lived illegally in the U.S. for more than 180 days but less than one year and you are granted Voluntary Departure by DHS (Stage 1, above) or leave on your own, you will be barred from returning to the U.S. for three years. If, with the same facts as above, you request Voluntary Departure from the IJ, you will not be subject to the three-year bar. If, on the other hand, you have lived illegally in the U.S. for over a year (continuously) and you are granted Voluntary Departure by DHS or the IJ, or you leave on your own, you will be barred from returning to the U.S. for ten years. In either the three-year or ten-year bar, there may be “hardship waivers” you may request to overcome the bar from returning.

This introduction into the process of Voluntary Departure is meant to be a primer only and does not constitute legal advice. For a complete assessment of your case, you should seek the advice of an experienced immigration lawyer.