What is Voluntary Departure?

What is Voluntary Departure

By Alexander H. Lubarsky, LL.M, Esq.

Many readers of this article have heard the terms voluntary departure and voluntary deportation used, but few really know the true meaning of these very significant legal acts.

Voluntary Departure

Voluntary departure is often available to one who is already in trouble with the Immigration & Naturalization Service. One may be in the midst of deportation/removal proceedings or one may have simply been detected to be present illegally in this country by the government who has for whatever reason not instituted deportation proceedings against that person. In that case, the person usually receives a letter from the local District Director (the local “jefe”) of the Immigration & Naturalization Service politely asking that person to depart the US. This is often the case when one without any known or serious criminal history applies for status such as for a green card, but for a relatively benign reason (that person does not qualify for such status and the application is rejected).

If one finds himself or herself in this situation, one has a few options. The non citizen may try to win his deportation case or may want to hire an attorney to appeal an adverse court or District Director decision which calls for the removal of the non citizen.

However, if one cannot afford to put up such a fight or if one simply lacks the legal qualifications to win a deportation case or appeal or to reverse an adverse Immigration & Naturalization Service decision, it is often preferable that such a person voluntary leaves the US WITHOUT BEING ORDERED DEPORTED. This compromise is known as voluntary departure.

Although it results in the ultimate departure of the US, it is always preferable to being ordered DEPORTED, an order of DEPORTATION / REMOVAL means that one CANNOT return to the US without special permission from the Immigration & Naturalization Service which is hard to obtain. The period that one must remain outside of the US can last from 5 years to life depending on that non citizen’s immigration and criminal histories. Those with serious crimes involving narcotics, firearms, sex crimes, crimes of violence or multiple DUI’s are usually subject to LIFETIME deportation and DO NOT QUALIFY TO EVER LEAVE VOLUNTARILY WITHOUT SUFFERING AN ORDER OF DEPORTATION. Further, if those people return illegally after being deported and are detected, they face up to TWENTY YEARS IN PRISON for “illegal reentry.” However, people who have no serious crimes as described above AND WHO HAVE BEEN PRESENT IN THE US FOR MORE THAN ONE YEAR often have the options to avoid the serious consequences of deportation by accepting voluntary departure. Under voluntary departure, those persons are permitted to leave the United States, no deportation order is placed in their permanent Immigration & Naturalization Service record and such persons CAN reenter the United States (lawfully, of course!) Although to many people, voluntary departure is not considered a successful disposition of their matter. After, all they still must leave the US. However, voluntary departure should not be considered in a negative light. It is actually a privilege that one must win. Many people do not qualify for such a privilege and find themselves subject to a permanent or long term bar from reentry. However, as I have stated before, the person who leaves under voluntary departure can return to the US legally and is treated as if he was never deported, a much better alternative to deportation. To qualify for the privilege of being granted voluntary departure by an Immigration Judge or by the Immigration & Naturalization Service, one must meet the following criteria:

  1. One must have been present in the United States for MORE than one year prior to receiving a grant of voluntary departure;
  2. One must have NEVER been convicted of an aggravated felony (which is the most serious of crimes, including crimes involving narcotics, firearms, sex crimes, crimes of violence or multiple DUI’s among others. If you have any criminal convictions, you should consult with your immigration attorney immediately to determine what consequences, if any, such convictions may have upon your immigration status;
  3. One must have NEVER been previously ordered deported from the US or any other country;
  4. If in deportation court, one must be able to post a $500.00 bond with the Immigration & Naturalization Service within five days of receiving a grant of voluntary departure from the Immigration Judge. This is returned to once it is proved that the person did in fact leave the US. ;
  5. One must promise to leave within the time given by the Immigration Judge or the Immigration & Naturalization Service to execute one’s voluntary departure from the US;
  6. One must prove that he or she has sufficient funds to finance the trip required for voluntary departure; AND
  7. One must prove that he or she has the proper paperwork necessary to leave the US, i.e., a visa and/or valid passport for entry into the country if that country requires such for entry.

How much time can one receive before he or she must depart the US can vary from up to a year (for those under OLD deportation proceedings under the OLD laws AND whom can show unusual reasons for requiring so much time) to as little as 60 days (for those in the new style deportation proceedings, also called Removal proceedings). A person who is in removal proceedings and agrees to forego any defenses other than voluntary departure, can get a maximum period of 120 days before he or she must depart. If one asks for voluntary departure at this early stage, one can win it EVEN WITH crimes (as long as they are not AGGRAVATED felonies) and EVEN if the person cannot prove that he or she is a person of Good Moral Character. BUT, if one waits until the end of his or her trial, then voluntary departure is only available to those who are deemed by the Immigration Judge to be “good people” or else the request for voluntary departure would be denied.

Failure To Depart

If the Immigration & Naturalization Service never receives proof from a US consulate abroad that one failed to depart after winning voluntary departure, the Immigration & Naturalization Service assumes that the person did NOT depart and a deportation order is ordered against that person. In many instances, the Immigration & Naturalization Service will send out agents to try to find that person to enforce the new deportation order! Scary stuff. If one does depart, but the Immigration & Naturalization Service never receives proof and enters the deportation order, an immigration attorney can help one prove the departure and get the deportation order rescinded.

Voluntary Deportation

Do NOT confuse voluntary departure with the harsh effects of voluntary DEPORTATION. Many people are urged by the Immigration & Naturalization Service to sign their own DEPORTATION order and thereby affirmatively relinquish their rights to return legally to the US for many years or perhaps for life. As a rule, NEVER SIGN ANYTHING concerning your departure or removal from the US without your attorney’s advise!