Voluntary Departure vs. Deportation

If you are a non-citizen of the United States who has been apprehended by the immigration authorities, and it’s clear that you have no right to remain here or any realistic defense to removal (deportation), the next question is, under what circumstances will you leave? This question is an important one in terms of preserving any rights you might have to legally return to the United States in the future.

Your two main options regarding departure from the United States are likely to be:

• an order of removal, followed by government-arranged deportation from the United States, or
• a discretionary grant of voluntary departure, in which you arrange your own transport to your home country and leave on your own schedule.

CAUTION: The voluntary departure procedure discussed below here is emphatically NOT the same as the "self-deportation" currently being offered by the Trump Administration. That process is not found within existing U.S. law. Despite numerous promises (including a statement online that "Participation in CBP Home Self-Deportation may help preserve the option for an illegal alien to re-enter the United States legally in the future"), no assurances exist that this will be the case. For instance, there's no reason to believe that self-deportation will negate one's future inadmissibility based on unlawful presence, which can create a bar of 3 or 10 years, depending on whether one's illegal stay was between six months and a year long or over a year long. Also see the concerns raised by Aaron Reichlin-Melnick, senior fellow at the American Immigration Council.

What Happens If You Are Ordered Removed From the U.S.

An order of removal means that you have been found to have no right to remain in the United States or have done something to make you deportable. This decision is usually made by an immigration judge (IJ), following a hearing.

The most likely basis is that you are either inadmissible (fall into a category of people who the law says should not be allowed to enter the United States) or deportable (fall into a category of people who, despite possibly having had a right to be in the United States, such as a visa or green card, have done something such that this right can be taken away; or who in the United States without permission (are undocumented or illegal)).

If you are ordered removed, Immigration and Customs Enforcement (ICE) is required to physically send you away from the United States, most likely (but not always) to your home country, within 90 days from the date the judge's removal order becomes final. (See § 241(a)(1)(A) of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1231.) If you have been found to have committed any of certain types of crimes, you will be held in immigration detention, without bond or other pre-removal condition of release, during that entire 90-day period.

The government will pay for your transport if you are removed, but it will not exactly be a luxury trip. Special planes are commissioned for this task. In some cases, passengers are handcuffed.

After removal, you will not be not allowed to return to the United States (you become "inadmissible") for a number of years. The exact term of your inadmissibility depends on the reason for which you were deported. Most people become inadmissible for 10 years, but the term can range from 5 years to a permanent, lifetime bar (as is the case for aggravated felons).

What Happens With a Grant of Voluntary Departure

Voluntary departure or "voluntary return" (VR) allows you to leave the United States within a certain time period on your own, rather than under a removal order. You have to actually ask for it, though. One can request voluntary departure either from ICE, assuming you are in contact with them (and even before you are in court proceedings) or from the immigration judge, either at the beginning or end of your immigration court removal proceedings. It is described as a discretionary form of relief, meaning that an applicant is not necessarily entitled to it; the government grants it as a favor to you, perhaps out of sympathy.

The law itself contains certain eligibility requirements, among them that people convicted of certain crimes cannot be granted voluntary departure. If you are in immigration court proceedings, it's easier to get voluntary departure at the beginning—in which case you give up all your other possible avenues for relief—than at the end. Even if you meet the basic eligibility requirements for voluntary departure, the immigration officer or judge is also allowed to consider whether you really deserve it.

The best thing about voluntary departure might be gaining the dignity of arranging for your own departure, without having to travel under the control of immigration agents. However, you also have to pay all your own travel and related expenses, often starting with a bond to guarantee that you will return home by the stated date.

Another supposed benefit of voluntary departure is that it does not lead to a period of inadmissibility based on having a previous order of deportation. But this benefit becomes all but meaningless if you have already spent one year or more unlawfully in the United States, in which case you are subject to a separate ground of inadmissibility, which bars your return to the United States for 10 years. There is a waiver available for this bar if you have close family members in the United States who would suffer hardship if you were denied entry, but it's difficult to gain approval for.

Oddly enough, if you obtain voluntary departure before you have been unlawfully present in the United States for 1 year, then you are not subject to the 3-year bar on reentry that is normally triggered by unlawful presence of more than 180 days.

Be warned, however. If you fail to depart on schedule, you will face serious immigration consequences and monetary fines.

See a Lawyer Before Choosing a Procedural Route

Before even considering the choice between voluntary departure and removal, make absolutely sure that you have exhausted all possibilities for staying in the United States legally. A lawyer can help you with this, and also help represent you in immigration court (removal) proceedings and present your claim to the judge.