Voluntary Departure: Types And Benefits
Author: New York Immigration Attorney Alena Shautsova
Voluntary departure is a form of relief from removal. Once the Immigration court proceedings began, one cannot simply leave the US without risking having an order of removal in absentia. At times, voluntary departure is the only option. Sometimes, you choose it strategically: not to have an order of deportation against you and apply for an immigrant visa with a waiver from your home country. At times, it is possible to avoid the need for an unlawful presence waiver, if voluntary departure is chosen at the right time. Some persons will not qualify for it: for example, those who have an aggravated felony conviction; you are an arriving alien; you entered the US on a visa waiver program; you had VD previously.
One can distinguish two kinds of VD: pre-conclusion and post-conclusion. The pre-conclusion VD may allow you up to 120 days to depart; the post-conclusion: only 60:
The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that-
(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 1229(a) of this title;
(B) the alien is and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure;
(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and
(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so.
(2) Period
Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days.
The key here, however, is to depart. If one fails to depart as scheduled, he/she will face a 10-year bar to apply for adjustment of status, change of status, cancellation of removal, and registry. In addition, the law provides for civil penalties for those who fail to depart up to $5000.
Further, a person who applies for pre-conclusion VD gives up his/her appeal rights. See Matier of Ocampo, 22 I&N Dec. at l 304- I 305 (stating that, in cases involving pre-conclusion voluntary departure, the record must clearly establish that right to appeal was actually and not merely constructively waived by the alien); see also section 240(c)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(5) (stating that, if an Immigration Judge orders an alien removed, the Immigration Judge "shall inform the alien of the right to appeal that decision").
If a respondent files a motion to reopen or reconsider during his or her voluntary departure period, the filing automatically terminates the voluntary departure order and the alternate removal order takes effect. Immigration judges and the BIA may not toll, stay, or reinstate voluntary departure, except as allowed under 8 C.F.R. § 1240.26(h). The regulation permits an immigration judge or the BIA to reinstate voluntary departure in cases where respondents successfully reopen their cases “prior to the expiration of the original period of voluntary departure.” If a person overstays the VD order, it turns into an order of removal as well. Violence Against Women Act self-petitioners who overstay a period of the voluntary departure remains eligible for cancellation of removal and adjustment of status if the extreme cruelty or battery was at least one central reason for the overstay.
Dealing with VD issues may be complicated, especially if one failed to obey and leave the US after the grant of VD. If you need help with such questions, please call for an appointment 917-885-2261.