Voluntary Departure: Why "Volunteer" to Be Deported?

If you are facing removal proceedings (deportation) and have no legal means of remaining in the United States, you might qualify to request the Department of Homeland Security (DHS) or an Immigration Judge to allow you to leave voluntarily, and at your own expense. The reason would be to avoid the stain of a removal order on your record. This common form of relief from removal is called "voluntary departure." (See 8 U.S.C. § 1229c.)

Here we will discuss voluntary departure itself, the requirements to qualify for it, and when requesting it removal is a good idea. Equally important, we will discuss when it is not a good idea!

What Is Voluntary Departure?

Voluntary Departure, also commonly called "voluntary return" or "voluntary deportation," allows a person to leave the U.S. at his or her own personal expense and avoid many of the immigration consequences associated with being deported. You can request voluntary departure either:

• from the DHS before appearing in immigration court (the Executive Office for Immigration Review, or EOIR)
• from the immigration judge at your first appearance in court, or
• at the conclusion of immigration court proceedings.

Qualifying for Voluntary Departure

The DHS has the authority to permit someone to voluntarily depart prior to court proceedings, and an immigration judge has the power to grant an order of voluntary departure at the first hearing or at the conclusion of the court proceedings.

The minimum requirements for getting permission to depart from DHS or an immigration judge at the first hearing (the "master calendar") are that you must have no aggravated felony or terrorism convictions. The DHS or the immigration judge must also believe that you actually intend to depart the United States, and aren't just using this opportunity as a well to slip free of the DHS.

In terms of procedural requirements, you must:

• withdraw any other applications for relief, such as for cancellation of removal
• admit that the DHS allegations regarding your removability are true, and
• waive your right to appeal the judge's decision on your case.

In addition, you must:

• have been present in the U.S. for at least one year
• produce the required travel documents
• show the financial means to depart
• have been a person of good moral character for the previous five years, and
• post a bond in an amount set by the immigration judge.

Qualifying for voluntary departure becomes more difficult after you have been found removable at the conclusion of the proceedings. If you request it then, the immigration judge will consider all of the facts of your case and the overall impression you made during the hearing, as well as whether you seem deserving of the opportunity to voluntarily depart.

Benefits of Voluntary Departure

Voluntary departure gives you the freedom to arrange your departure yourself, without being escorted out of the U.S. by government officials.

What's more, any time a foreign national is deported from the U.S., a bar to reentry is imposed. This prevents the deported person from returning to the U.S. for a number of years. While some reasons for removal (such as an aggravated felony or visa fraud) will carry a lifetime bar to reentering, the typical bars to reentry are:

• five years when the removal was carried out immediately upon the person attempting to enter the U.S. (expedited removal), or
• ten years when the order of removal was issued by an immigration judge.

If, before a bar to reentry expires, the person reenters or attempts to reenter the U.S. without advance permission, serious consequences will result, such as a fine, imprisonment, or both.

A grant of voluntary departure eliminates the bar to reentry and therefore, the other potential consequences that can arise with an order of removal.

So, voluntary departure seems pretty simple and like the lesser of two punishments if you're looking at an order of removal, right? But don't make your decision without speaking to a lawyer. In some situations, the benefits tend to diminish and make voluntary departure less than the "privilege" it initially appears to be. This is particularly true in cases where adjustment of status to permanent resident (a green card) could possibly be attained.

Potential Downsides of Voluntary Departure

On the negative side, you will still have to leave the U.S. by a certain deadline, and will have to pay for your trip yourself. You might also have to pay a bond in advance of leaving, to help ensure that you actually leave; but this will be returned to you once you've departed.

Another issue is that if, prior to accepting voluntary departure, you accrued what is termed "unlawful presence," you could be subject to the same bar to reentry that is imposed after deportation.

Three- and Ten-Year Bars to Admission: Unlawful Presence in the U.S.

Under immigration laws, when a foreign national who's been unlawfully present in the U.S. for more than 180 days but less than one year departs, inadmissibility (a bar on reentering) for a period of three years is triggered. If the person is unlawfully present for 365 days (one year) or more, upon departing, he or she becomes inadmissible for ten years.

If you have accumulated more than 180 days but less than one year of unlawful presence in the U.S., and are granted voluntary departure, you will be forgiven the unlawful presence and you will not be subject to the three-year bar. However, if you have been unlawfully present for one year or more, you do NOT avoid the ten-year bar.

What this means is that if you could have qualified for a green card, but you did not request that relief and chose voluntary departure instead, you became subject to the ten-year bar and getting your green card just became a lot more difficult.

Note: If you filed a non-frivolous asylum application, did not engage in unauthorized employment while in the U.S., and chose voluntary departure over pursuing your claim to asylum, you will not be subject to any bars to readmission.

What If I Accepted Voluntary Departure But Have Changed My Mind?

If you requested and were granted voluntary departure but later decide it was a bad idea and you do not want to leave the United States, contact an attorney to discuss your options. Failing to depart triggers serious consequences, such as a fine and ineligibility for certain forms of relief from removal, including voluntary departure, for ten years.

Failing to depart also automatically results in your voluntary departure grant becoming a formal order of removal if certain immediate steps are not taken.

If you want to read more about making this decision, see Voluntary Departure vs. Deportation.