Foreign nationals in removal proceedings are confronted with the very real possibility of deportation from the United States. During the course of removal proceedings, the foreign national may request relief in the form of adjustment of status, waiver of inadmissibility, cancellation of removal, asylum, or some combination of the same. If the foreign national is unable to prove he is eligible for relief, the immigration judge (“IJ”) or the foreign national’s attorney may suggest voluntary departure. However, the foreign national should carefully consider if voluntary departure is the right answer for him.
What is voluntary departure?
Before the commencement or completion of removal proceedings, a foreign national may elect to voluntary depart at his own expense. If he elects voluntary departure at the beginning of removal proceeding, the IJ can give the foreign national a maximum of 120 days to depart. Here, the foreign national must demonstrate that he intends to leave the U.S., he has not been convicted of an aggravated felony, and is not otherwise a security risk. If the foreign national accepts voluntary departure at this stage, the he waives all rights to appeal.
On the other hand, if the foreign national chooses to ask for relief and the relief is ultimately denied, he may still ask for voluntary departure. In this case, the foreign national will have a maximum of 60 days to depart. Additionally, the foreign national must demonstrate good moral character for the preceding 5 years, have a valid travel document, and pay a bond no less than $500. If the foreign national chooses to appeal the IJ’s decision, the 60-day clock will not run during the pendency of the appeal with the Board of Immigration Appeals (“BIA”). If the foreign national is not successful on appeal and elects to file a petition for review with the federal court, the grant of voluntary departure automatically converts to a removal order. Therefore, the foreign national will also need to file a motion to stay removal.
What if I accept voluntary departure but do not leave within the departure period?
Congress has enacted harsh penalties for foreign nationals, who take voluntary departure but fail to leave. Namely, the foreign national may be subject to steep fines and ineligible for any immigration benefit for 10 years. For example, after the period of departure passes, the foreign national marries a US citizen, who petitions on his behalf for an immigrant visa. The foreign national has, an approved petition, no criminal history, and no fraud issues. Nevertheless, he is ineligible to a green card for 10 years, because he failed to depart. This 10-year period begins the date the foreign national was required to depart. Furthermore, the foreign national may not file a motion to reopen with the BIA to adjust status, if he fails to depart. It should be noted, however, that if the foreign national remains in the US during the 10 years, he may then be eligible to file a motion to reopen to adjust status based upon his marriage to a US citizen.
A foreign national that voluntarily leaves after the departure period is said to have self-deported. Here, the foreign national will have a final order of removal for failing to leave within the departure period. As a consequence, the foreign national will not be admissible for 10 years, unless he first obtains a waiver.
Once I have departed, when can I return to the US?
This is where I find that many foreign nationals do not understand fully the consequences of accepting voluntary departure. True, voluntary departure will avoid a removal order, if the foreign national departs within the timeframe permitted. However, a removal order is not the only ground of inadmissibility to which many foreign nationals in removal proceedings are subject.
Many foreign nationals, who are in proceedings, have also accumulated a significant amount of unlawful presence. Any foreign national that has accumulated over 1 year of unlawful presence will be subject to the 10-year unlawful presence bar once they leave the country. Thus, a foreign national that accepts voluntary departure and departs the US as agreed, triggers the 10-year unlawful presence bar upon departure. In these cases, the foreign national will need a waiver of the unlawful presence to be admissible. To obtain a waiver, the foreign national would need to demonstrate that his qualifying relative would suffer extreme hardship if he were unable to return.
Since a foreign national that has accumulated over a year of unlawful presence but leaves under voluntary departure is subject to the same 10-year bar as a foreign national that has been forcibly removed, you may very well question the benefit of accepting voluntary departure is. These are questions that should be discussed in-depth with a knowledgeable immigration lawyer.