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Voluntary departure is the departure of an alien from the United States without an order of removal.  The departure may or may not have been preceded by a hearing before an immigration judge.  An alien allowed to voluntarily depart concedes removability but does not have a bar to seeking admission at a port-of-entry at any time.  Failure to depart within the time granted results in a fine and a ten-year bar to several forms of relief from deportation.

An immigration judge may grant voluntary departure during removal or deportation proceedings.  The voluntary departure period does not run while an administrative appeal to the Board of Immigration Appeals (BIA or Board) is pending.  If the BIA dismisses the appeal, the Board generally grants a 30-day voluntary departure period from the date its decision was issued.

In order to qualify for voluntary departure, a non-citizen must first admit that s/he is removable.  Once admitting removability, the non-citizen may depart voluntarily at his/her own expense during or after the conclusion of the removal proceedings.  Depending on one's circumstances, voluntary departure avoids the negative social stigma of removal and allows for a possible return to the United States.  There are some statutory requirements for granting of voluntary removal.

Voluntary departure has long been viewed as a desirable alternative to deportation and its consequences.  However, IIRIRA’s changes to the voluntary departure statute, as well as other provisions of the INA, compel consideration of whether accepting voluntary departure is, in fact, beneficial.

The most important question to ask when your client is considering voluntary departure is: Is my client going to be able to leave before the expiration of the voluntary departure period?  Individuals who do not depart within the specified time period are barred from applying for adjustment of status, cancellation of removal, voluntary departure, change of status, and registry for a period of ten years and may be subject to monetary fine up to $5,000.

INA § 240B(d).  Commonly, these penalties are implicated when a person becomes eligible for adjustment of status after the conclusion of removal proceedings.  The immigration court or the BIA will not reopen cases where the departure period has expired.

Thus, individuals who overstay the voluntary departure period may end up in a worse situation than those who were ordered removed.

As this advisory illustrates, individuals who plan to file a petition for review and who will remain in the United States while the petition is pending may overstay the voluntary departure period.  This is particularly true now that the Ninth Circuit has abandoned its holding in Contreras-Aragon.  Even individuals who do not plan to seek judicial review and who intend to depart timely may be unable to do so if, for example, they are detained or cannot secure a plane ticket.  Furthermore, one benefit that used to flow from voluntarily departing – avoiding the inadmissibility bars for previously being deported – may be canceled out.

For example, if a person accrued more than one year of unlawful presence prior to taking voluntary departure, he or she still may face a ten year bar to admission.

Also, if a person comes back illegally after taking voluntary departure, at least in the Ninth Circuit he would be subject to reinstatement of removal under INA § 241(a)(5).

These cautions, of course, do not mean that voluntary departure is not advantageous for some people.  There will be various situations where taking voluntary departure will allow a person to depart the United States unescorted and will facilitate easier admission to the country at a later time.  However, for many people in deportation or removal proceedings, voluntary departure may make their situation worse if they fail to depart within the specified period.  Complicating matters, many immigration judges – perhaps acting under the presumption that voluntary departure is generally beneficial – sometimes grant voluntary departure even where the person technically is ineligible or in cases where the respondent does not even request this form of relief.  Respondents will need to assess whether voluntary departure is truly the best option or whether they should refuse an offer of voluntary departure in circumstances where they are not completely certain that they will depart within the specified period.