Why Request Voluntary Departure Instead of Removal?

If you are in removal proceedings and have no hope of being allowed to remain in the U.S., but might want to return in the future, voluntary departure is a useful option.

By , Attorney Suffolk University Law School
Updated 3/04/2023

If you are in removal proceedings in immigration court and do not have a way to legalize your status in the United States, it can be a good idea to seek voluntary departure instead of waiting for an order of removal—or worse yet, skipping out on your court dates. In the latter case, the immigration judge will doubtless hand down an order of removal "in absentia," which can have serious long-term consequences.

A grant of voluntary departure means you still have to leave the United States, but nevertheless offers important benefits, as discussed below.

What Voluntary Departure Means

A grant of voluntary departure permits a non-citizen to depart the United States by a certain date without an order of removal on record. To learn more about qualifying, see Voluntary Departure: Who Is Eligible? and 8 U.S.C. § 1229c.

Departing voluntarily can protect a non-citizen from the harsh consequences of an order of removal. However, even compliance with a voluntary departure order does not necessarily protect you from being found inadmissible and denied a visa if you seek to return to the United States in the future.

Consequences of an Order of Removal From the Immigration Judge

If, at the end of your immigration court proceedings, the immigration judge you are ordered removed (deported), you will be required to physically depart the United States on a certain date, transported by the U.S. government. (Or, if you appeal your case, you will be able to remain in the United States until your appeal is decided.) The removal order will contain the exact date of departure, which is normally 30 days from the date of the issuance of the removal order.

You face several consequences if you are ordered removed or in fact are removed from the United States. First, a non-citizen who has been ordered removed is not admissible to the United States for 5, 10, or 20 years, or even permanently, depending upon the reason for the deportation. (See How Long After Deportation Must I Wait Before Returning to the U.S.?)

If you re-enter the U.S. after deportation without permission (or even attempt to) and are caught, you could be sent back to your native country without seeing an immigration judge, and you could face federal criminal charges for illegal re-entry.

If you have been deported but have a new basis upon which to seek a visa or green card, you may apply for special permission to seek readmission to the United States (using USCIS Form I-212). Approval of an application for readmission, however, is not guaranteed. In fact, it is very difficult to obtain, especially since the underlying reason for the deportation will be considered. (Also see After Removal: Possibilities for Reentry to the U.S.)

Another practical concern with deportation is the time frame. A mere 30 days is not much time to settle your financial and personal affairs in the United States, particularly if you have been here for a long time and have personal property, real estate, or substantial community ties.

Benefits of Voluntary Departure Instead of Deportation

Voluntary departure has a number of benefits over an order of removal. Most importantly, departing the United States with voluntary departure, as opposed to being removed by an immigration judge, means that you are not automatically inadmissible from the United States for a set number of years.

Also, a grant of voluntary departure carries with it a deadline of either 60 days or 120 days for you to depart on your own. That allows you more time in which to close bank accounts, terminate leases, sell real estate and personal property, visit friends and family, and make future living arrangements. Moreover, voluntary departure does not carry with it the stigma of deportation, and it allows the U.S. government to avoid paying the costs associated with your removal.

Drawbacks of Voluntary Departure

You should consider some drawbacks of voluntary departure. First, if you don't follow through, the consequences of failing to depart the United States are severe, as described in Voluntary Departure: What Happens If You Don't Leave the United States?

Second, even if you voluntarily depart as promised, you might still face immigration issues if you seek to return to the United States. For instance, if you were unlawfully present in the United States for a continuous period of more than 180 days but fewer than 365 days, you face a three-year time bar on returning to the United States.

If you were present in the United States unlawfully for more than one year, you will face a ten-year bar on returning—even if you are otherwise eligible for a visa or green card. In this case, however, you might be eligible for an immigration waiver (legal forgiveness) for the unlawful presence. For information on this penalty and the possible waivers, please see: Consequences of Unlawful Presence in the U.S.—Three- and Ten Year Time Bars.

For More Information on Voluntary Departure

If you are interested in requesting voluntary departure in deportation proceedings, you will want to make sure you are eligible, and submit your application at the most optimal time. See Voluntary Departure: Who Is Eligible? for more information or consult an experienced immigration attorney.

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