Voluntary Departure

Voluntary departure is an order permitting you to depart the United States on your own and avoid a removal order. It can be viewed as one form of relief in removal proceedings when all others fail. While you must pay your own transportation expenses and leave the United States within a specified time period, you may evade the serious consequences associated with a removal order. Although you may meet all the required criteria to be eligible for voluntary departure, the immigration official or judge presiding over your case always has discretion in deciding whether to grant voluntary departure.

Although you are departing from the United States on terms more favorable than with a removal order, there may still be significant immigration consequences. This article provides an overview of voluntary departure and the potential future consequences.

Benefits of Voluntary Departure

Voluntary departure may be a good option if you lack other forms of relief from removal or if you are facing a prolonged period of detention while in removal proceedings. Agreeing to voluntary departure also provides other benefits, such as guaranteeing a specific period of time to conclude your affairs in the United States before departure and to avoid the consequences of a removal order. With a removal order, you are permitted to return to your home country on your own timing (within the order’s specified time period) and without the looming shadow of a removal order.

Timeframe for Voluntary Departure

If you are granted voluntary departure, you must abide by various conditions. These conditions include a deadline within which you must depart the country. The deadline generally ranges from 60 to 120 days. If you violate the voluntary departure order by staying in the United States past the deadline, you may be subject to an alternative order of removal.

The time period for departure begins running from the date on the order. If you appeal the decision to the Board of Immigration Appeals (“BIA”), the time period automatically stays (or pauses) until the BIA issues an opinion or dismisses the appeal.

In extreme circumstances, you may request for the Department of Homeland Security (“DHS”) to extend a final order of voluntary departure. However, the extension is typically short-lived, lasting for an additional period of 60 or 120 days.

Order of Voluntary Departure by DHS or an Immigration Judge

Voluntary departure may be granted in two settings: before a DHS agency or during removal proceedings before an immigration judge.

DHS

Voluntary departure may be available as an alternative to removal proceedings. You may request a voluntary departure order prior to removal proceedings if you lack a viable form of relief from removal and wish to avoid the lengthy duration of removal proceedings. If voluntary departure is granted, you will have up to 120 days to leave the United States. DHS may impose conditions on the voluntary departure order, including bond and detention, to ensure you abide by the order.

Immigration Judge

Once removal proceedings have been initiated, voluntary departure may be granted by an immigration judge either before the conclusion or at the conclusion of the removal proceedings.

If the immigration judge orders voluntary departure before the end of removal proceedings, several requirements must be met:

• You must request voluntary departure before the master calendar hearing.
• You must concede removability.
• You may not request additional forms of relief.
• You must not have any aggravated felony convictions.
• You must not be deportable based on national security grounds.
• You must demonstrate that you merit a favorable exercise of the judge’s discretion.

If granted, you will have up to 120 days to leave the United States. The immigration judge may impose conditions on the voluntary departure order, including bond, to ensure you abide by the order.

If the immigration judge orders voluntary departure at the conclusion of removal proceedings, there are additional requirements that must be met:

• You must have been physically present in the United States for at least 1 year prior to service of the Notice to Appear.
• You must have had good moral character for at least the 5-year period immediately prior to the request for voluntary departure.
• You must not have any aggravated felony convictions.
• You must not be deportable based on national security grounds.
• You must demonstrate that you merit a favorable exercise of the judge’s discretion.

If granted, you will have up to 60 days to leave the United States and bond is mandatory. If you fail to post bond within 5 days of the order, an alternative order of removal is instated. Despite an order of removal being instated, your obligation to depart continues. If you voluntarily depart within 25 days of the failure to post bond and you are able to present evidence of your departure, then your departure will not be considered a removal.

Voluntary Departure Consequences

While you will not face the full extent of a removal order’s consequences, a grant of voluntary departure may have an impact on your ability to obtain future immigration benefits. This is particularly true if you fail to depart the United States by the specified deadline.

If you abide by the conditions of the voluntary departure, the primary negative consequence applies only if you accrued unlawful presence prior to the voluntary departure order. If so, you may be considered inadmissible and thus barred from returning to the United States for a period of time.

If you fail to depart within the voluntary departure order’s specified timeframe, you may face consequences that may be more extreme than those resulting from a removal order. These consequences include:

• Civil penalties, including a monetary fine up to $5,000
• 10-year bar from adjustment of status, cancellation of removal, and other related immigration relief
• Accrual of unlawful presence, potentially inflicting a 3 or 10-year inadmissibility bar
• Instatement of a removal order against you

If you self-depart the United States after your specified deadline has passed, your departure may be considered a self-removal and bears all the same consequences as those from a removal order.