Voluntary departure permits a non-citizen to avoid an order of removal by departing the U. S. at his or her own expense, within a set period of time. The amount of time is typically up to 120 days if you request it at the initial, master calendar hearing, and 60 days when ordered by an immigration judge after an individual, merits hearing. To review the requirements for Voluntary Departure, see Voluntary Departure: Who is Eligible?
Someone who is deported from the U.S. is essentially escorted out of the country. But that’s not the case if you agree to voluntary departure: The immigration authorities will not be waiting for you to show up on a certain day, nor monitoring your departure. Some applicants have regarded this as a free pass to stay on in the United States. There are, however, severe consequences for failing to depart the United States under a grant of voluntary departure, as discussed in this article.
A non-citizen who fails to depart the United States within the time period specified in the voluntary departure order becomes subject to civil penalties. You might have to pay a civil monetary penalty of between $1,000 and $5,000. (See I.N.A. § 240B(d).)
Another consequence if you fail to depart the U.S. on time has to do with your chances of obtaining future U.S. immigration status. You will face an automatic ten-year bar from being granted cancellation of removal, adjustment of status, change of status, registry, and further voluntary departure. (See I.N.A. § 240B(d).)
(This law has been changed over the years. Non-citizens who were granted voluntary departure in 1995 or earlier received an automatic bar of five years rather than ten.)
The automatic ten-year bar is perhaps the most severe consequence to failing to depart under a voluntary departure order.
For instance, let’s say a non-citizen who was granted voluntary departure in 2014, but failed to depart, married a United States citizen in good faith in 2019. Under normal circumstances, that person would become eligible for a family-based green card. But with that past failure to depart on record, the non-citizen would have to wait another five years to apply for residence based on that marriage. Moreover, even after the ten-year period has elapsed, the non-citizen would face additional obstacles because an automatic order of removal was likely also entered, discussed below.
If a non-citizen fails to voluntarily depart, the voluntary departure order automatically becomes an order of removal. This occurs without the immigration judge needing to issue a new order, and without the non-citizen appearing in court. At this point, you are subject to removal from the United States, one consequence of which is that upon any encounter with immigration authorities, you can be removed from the U.S. without first seeing a judge.
If the non-citizen later departs the United States after overstaying the voluntary departure, the departure will be considered a self-removal, meaning that the non-citizen will be considered to have been deported. Then, you would be subject to the adverse consequences of deportation even though you left on your own. For example, if you tried to enter the U.S. illegally, you could become subject to a permanent bar on admission, as described in The Permanent Bar to Immigration for Certain Repeat Violators.
Before 1996, there was an “exceptional circumstances” exception for failing to depart the United States within the allotted time period. Exceptional circumstances included the serious illness of the non-citizen, the death of an immediate relative of the non-citizen, and other compelling circumstances beyond the control of the alien. However, in 1996, Congress eliminated the exceptional circumstances exception for voluntary departure.
Courts have, however, recently recognized what is known as the “voluntariness” exception. Specifically, if a non-citizen, through no fault of his or her own, is unaware of the voluntary departure order or is physically unable to depart, the court will not consider that person to have failed to depart. The rationale is that the harsh penalties should be reserved for those non-citizens who voluntarily fail to depart; and not applied in cases where, for instance, the lawyer failed to mention the existence of a voluntary departure order until after the deadline for the departure has passed.
This exception is narrow, and would not include situations in which the non-citizen lacked money to depart, or faced exceptional hardship to him- or herself or to close family members.
If you’re considering requesting voluntary departure from the immigration judge, realize ahead of time that it’s not a way to delay departing the United States. Unless you depart on time, you will not gain any of the advantages of avoiding an order or deportation on your record. In fact, you will be hit with not only a removal order, but possible monetary and other penalties, including an automatic ten-year bar to several types of immigration relief. You will need to depart by the required date, post a voluntary departure bond (if required to do so), and comply with any other applicable conditions.