Voluntary Departure is an option for some individuals who are in removal (deportation) proceedings who have no lawful avenue to remain in the United States. Voluntary Departure has fewer negative consequences than being Ordered removed from the U.S. by an Immigration Judge following removal proceedings.
Individuals who have been unlawfully present in the United States between 180 days and one year will be unable to return to the United States for three years if they voluntary leave the U.S. prior to receiving a Notice to Appear and prior to any Immigration Court hearings. Individuals who have been present in the United States between 180 days and one year who are granted voluntary departure by an Immigration Judge are not subject to the three-year “bar” to returning to the United States. Individuals who have been unlawfully present in the United States for over a year and voluntarily leave the U.S. will be unable to return to the United States for ten years, regardless of whether they are granted Voluntary Departure before the Notice to Appear is issued or during removal proceedings and whether DHS or the Immigration Judge grants the Voluntary Departure.
In contrast, all individuals who are removed by DHS after living unlawfully in the United States for any period of time are unable to return to the United States for at least 10 years. For individuals who were previously removed in the past and have returned, they will be unable to return for 20 years. Individuals who are arrested as they arrive in the United States are subject to different penalties, including 5 years if it is their first removal, 10 years if they were unlawfully present in the United States for over a year at any point since April 1, 1997, and 20 years if they have been removed in the past.
An individual in removal proceedings who is eligible for and wishes to leave the country through Voluntary Departure will need to request Voluntary Departure, either from DHS prior to going to Immigration Court or from the Immigration Judge and/or DHS during removal proceedings in Immigration Court.
It may be more difficult to be granted Voluntary Departure at the end of immigration proceedings, following an individual hearing, than it is to receive it earlier in the process. If an individual requests Voluntary Departure during or after his individual hearing, only the Immigration Judge can grant it, and the individual must prove that he had “good moral character” over the past five years, that he was present in the United States for at least a year before receiving a Notice to Appear, that he was not convicted of an aggravated felony, that he is not deportable for terrorist activities, that he never previously received Voluntary Departure, and that he has the means to depart the United States and intends to depart. He may also be required to post a bond to DHS and to provide DHS with a valid passport.
An individual convicted of an aggravated felony is ineligible for Voluntary Departure, regardless of the stage that individual is at in his removal proceedings. Aggravated felonies include, but are not limited to, such crimes as rape, murder, certain drug crimes, most firearms offenses, and many crimes for which a sentence of one year or more was imposed (regardless of the amount of time the individual actually served in jail or prison). Not all aggravated felonies are actually felonies under state law, so it is important for any individual in removal proceedings to consult with an immigration attorney if he has been convicted of any crimes.
Returning to the United States within the applicable three or ten-year “time bar” period can result in harsh consequences, including imprisonment, unless the individual is granted a waiver of the time bar prior to returning. Hardship waivers may be available to spouses or children of United States citizens or lawful permanent residents if they can show that keeping them out of the United States would cause an “extreme hardship” to their qualifying United States citizen or lawful permanent resident relative.
An individual who has been granted Voluntary Departure will be required to use his own funds to leave the United States. He may be required to leave the United States as soon as travel can be arranged, and he may need to depart directly from his detention facility, or he may be given bond, be released from detention, and be given a deadline of up to sixty (60) days to leave the United States voluntarily.
If you or someone you know is in the United States unlawfully or is in removal proceedings and wants to know more about voluntary departure, contact Tanner Law Offices at 717-731-8114 to schedule a consultation.