Voluntary Departure: Who Is Eligible?

If you are a foreign national facing deportation (removal) from the United States, either prior to or while in immigration court proceedings, you might have an opportunity to defend yourself and argue that you should not be deported. If that won't work, however, you can ask the immigration judge for the chance to leave the country on your own, without receiving an order of deportation on your immigration record. This type of request is known as "voluntary departure." This article will discuss who can request voluntary departure, and whether your request is likely to be granted.

The key thing to understand about your eligibility for voluntary departure is that it depends in part on when you make the request, either:

• before the start of removal proceedings (a hearing in immigration court)
• during removal proceedings, or
• at the conclusion of removal proceedings.

Also see the Department of Justice (DOJ)'s writeup about voluntary departure.

Why Would I Agree to Voluntarily Leave the U.S.?

The main benefit of voluntary departure is that, even though you must leave the United States, you will not automatically be barred from legally returning at a later date. Of course, you would need to qualify and apply for a new visa or green card in order to return. But if that were to happen, you won't have a time-bar on your immigration record from the previous deportation order.

If leaving open the possibility of return to the United States doesn't matter to you, or perhaps if you can't afford the return ticket to your country of origin and would prefer the U.S. government arrange your transportation, you could simply forget about voluntary departure. You'd then await an order of deportation and subsequent "bag and baggage" letter. (See If the Immigration Judge Orders Me Deported, What's Next?.)

Requesting Pre-Hearing Voluntary Departure From the DHS

Before you even see an immigration judge, you may ask the Department of Homeland Security (DHS) to grant you voluntary departure. Most non-citizens make this type of request after having been arrested by U.S. immigration officers and perhaps put into an immigration detention facility. DHS is not required to ask you whether you want voluntary departure. So, if this option makes sense for you, it is best to request voluntary departure from an immigration officer right away.

The law doesn't set out many eligibility requirements for voluntary departure that comes straight from DHS. It appears that the goal is to make it easy for the U.S. government to work out a plan for your departure. You would be expected to depart the United States at your own expense, and be given up to 120 days to depart. The DHS may require you to post a bond, to stay in detention until departure, and to depart under certain safeguards.

Pre-hearing voluntary departure is not available to a non-citizen who is stopped at the U.S. border. Also, aggravated felons and noncitizens involved in terrorist activities are ineligible for pre-hearing (or any) voluntary departure.

When you ask for voluntary departure from DHS, you give up your right to apply for immigration relief in court. Accepting these terms makes sense for non-citizens who do not qualify for any relief, who want to return to their home country right away, and who want to avoid time-consuming and costly court proceedings.

However, if you have a defense to deportation, or believe that you might qualify for immigration relief, such as asylum, cancellation of removal, or adjustment of status, you might be better off waiting until you can see an immigration judge to present your full case. At that time, you will (assuming you meet the eligibility requirements described below) have additional chances to ask for voluntary departure.

Requesting Voluntary Departure at the Start of a Removal Hearing

You may seek voluntary departure at the beginning of immigration court removal proceedings; that is, at your master calendar hearing. Just like if you request voluntary departure from DHS before going to court, seeking voluntary departure at this stage means that you forever give up the right to apply for any other form of immigration relief.

In order to qualify for voluntary departure at the start of a removal hearing, you must:

• make the request before or at the first, master calendar hearing
• request no other form of relief except voluntary departure
• admit that you are removable from the United States
• waive the right to appeal all issues, and
• prove that you have not been convicted of an aggravated felony and are not deportable for national security or public safety reasons.

The decision of whether to grant voluntary departure is in the discretion of the immigration judge. The judge may consider factors such as your criminal history, immigration history, and family and community ties in the United States.

In practice, immigration judges are particularly interested in whether the non-citizen requesting voluntary departure has any criminal offenses. The judge may therefore review and analyze criminal dockets, police reports, and other evidence to determine whether or not to grant voluntary departure. If you have any criminal offenses on your record, consult with an immigration attorney to discuss whether such offenses may adversely impact your voluntary departure request.

Requesting Voluntary Departure During Removal Proceedings From DHS

Although it's rare, the attorney for the DHS may, at any time during your removal hearings, agree that you should receive voluntary departure. You or your attorney may ask this of the DHS attorney in the courtroom. If the DHS attorney agrees, the DHS will likely prepare a motion to terminate your removal proceedings. The motion would end your removal proceedings and the DHS would grant you voluntary departure.

DHS will not agree to voluntary departure if you are deportable as an aggravated felon or for national security or public safety reasons, or have any serious criminal offenses on record.

Requesting Voluntary Departure at the End of a Removal Hearing

You may decide to seek voluntary departure at the conclusion of your removal proceedings, most likely because your other defenses or requests for relief are not going well. Establishing eligibility for voluntary departure at this stage has strict requirements. You must:

• have been physically present in the United States for at least one year prior to the service of the Notice to Appear (the document from the DHS charging you with removability from the U.S.; also called an NTA)
• have the financial means to post a bond within five days of the judge's order
• have been a person of good moral character for at least five years before seeking voluntary departure
• not be an aggravated felon or terrorist
• not have been granted voluntary departure previously after having been found inadmissible
• produce a valid passport or travel document for inspection and authentication by the U.S. government, and
• establish that you have the financial means to leave the United States at your own expense and that you intend to do so within the required time.

If the immigration judge grants your request, you will receive an order specifying when you are required to depart the United States. You will also need to post a voluntary departure bond, in an amount set by the judge, within five days of the order. (A bond means that if you leave as scheduled, you get the money back; but if you fail to do so, you forfeit the money.)

As detailed above, there are different stages when you can ask for voluntary departure. The eligibility requirements become more difficult the longer you wait to request it. If you have no way of legally staying in the United States, voluntary departure allows you to depart at your own expense within a set time period, with far fewer negative consequences than if you were ordered deported.

Getting Legal Help

If you don't already have an attorney, your entry into immigration court proceedings is an excellent time to consult with one. The attorney can help you analyze whether you might qualify for some temporary or permanent right to remain in the United States. With that in mind, you'll then decide whether to go forward with further immigration court hearings or to simply request voluntary departure in order to leave the United States.