Better Understanding Voluntary Departure

June 19, 2017 12:19 pm
by David Jakeman

Immigration authorities may allow immigrants to voluntary depart the United States instead of being officially removed.  Voluntary departure comes in two types.  The first type is laid out in INA § 240B(a) which allows for voluntary departure in lieu of removal proceedings or prior to the completion of removal proceedings.  The second type is laid out in INA §240B(b) which allows for voluntary departure at the conclusion of removal proceedings.  Even though voluntary departure does not allow the immigrant to remain in the United States, it can still be a desirable alternative to removal.  For example, voluntary departure allows the immigrant to have complete control over the destination and means of returning to his country of origin.  Most importantly, voluntary departure enables the departing immigrant to avoid the statutory bans on readmission assessed against those who are actually removed.

Eligibility for voluntary departure in lieu of/prior to the conclusion of removal proceedings

There are five principal eligibility requirements for this type of voluntary departure.

  • The immigrant must cover all of his own departure expenses
  • The immigrant cannot be removable under either aggravated felony grounds or security/terrorism grounds
  • The immigrant does not request any other form of removal relief
  • The immigrant concedes removability
  • The immigrant waives appeal

Immigration authorities may attach additional conditions such as the posting of a bond, continued detention pending departure, and departure under safeguards.  If voluntary departure under this type is granted, the immigrant will have up to 120 days to depart.  If the immigrant fails to depart, he will be subject to sanctions including ineligibility for most forms of removal-relief, possible civil penalties, and a ten year ban on readmission.  Voluntary departure is up to the discretion of the immigration judge.

Eligibility for voluntary departure at the conclusion of removal proceedings
Eligibility under this type of voluntary departure is more stringent.  There are six principal requirements.

  • Like the first type, the immigrant must cover all of his own departure expenses
  • The immigrant must have been physically present in the United States for a period of at least one year immediately preceding the date of service of the notice to appear
  • The immigrant is, and has been, a person of good moral character for at least 5 years immediately preceding the alien’s application for voluntary departure
  • The immigrant is not removable under either aggravated felony or security/terrorism grounds
  • The immigrant has demonstrated by clear and convincing evidence that he has the means to depart the country and intends to do so
  • The immigrant must post a voluntary departure bond, in an amount necessary to ensure that the immigrant will depart, but not less than $500

If voluntary departure under this type is granted, the immigrant will have up to 60 days to depart.  Failure to depart within the specified time will result in the same penalties as for the first type including the ten year ban on readmission.  This type of voluntary departure is also up to the discretion of the immigration judge.