Voluntary departure is a form of discretionary relief that allows certain noncitizens to depart the United States at their own expense, instead of departing the United States under an order of removal.  Voluntary departure is particularly important as an alternative to removal for persons who do not qualify for any other form of relief and wish to avoid the harsh consequences of removal on future admissibility into the United States.  Applicants eligible to apply for alternative forms of discretionary relief (e.g., asylum or cancellation of removal) may also benefit from permission to leave voluntarily if the primary relief is denied.

 

The main benefit of voluntary departure is that a noncitizen who is ordered removed may not re-enter the United States legally for a period of 5 years (20 years for a second order of removal, or permanently after conviction of an aggravated felony) without a waiver from the Attorney General.[448]  A noncitizen who leaves within a granted voluntary departure period is not subject to this bar to re-entry. Voluntary departure also avoids the very harsh criminal penalties imposed if the person later re-enters the U.S. illegally after deportation.[449]  However, even if a noncitizen promptly departs under a grant of voluntary departure, the ground of inadmissibility or deportation under which the noncitizen was initially charged is not forgiven, and will likely create a barrier to lawful re-entry at a later date.

 

Under 1996 IIRAIRA amendments, the Act provides for a grant of voluntary departure at two distinct times.  First, the Attorney General may grant voluntary departure prior to the conclusion of removal proceedings.[450]  Second, the immigration judge may grant voluntary departure instead of removal at the conclusion of removal proceedings (i.e., after arguments on the merits have been heard and removability established).[451]  It is easier for a noncitizen to qualify for pre-conclusion voluntary departure.  This encourages respondents to give up possible avenues of relief and spare the government the expense of completing the formal removal proceedings, and penalizes the applicant who did pursue relief.[452]  A request for voluntary departure may, however, in some instances, hurt rather than help a noncitizen in removal proceedings.  Counsel should ensure that voluntary departure is the best option for a client.

 

            Noncitizens who are not in removal proceedings, but are still in deportation or exclusion proceedings begun before April 1, 1997, must meet the requirements under the former voluntary departure statute.[453]

[448]  INA § 212(a)(9)(A)(ii), 8 U.S.C. § 1182(a)(9)(A)(ii).  The waiver, which may waive deportability for conviction of aggravated felony, is found at INA § 212(a)(9)(A)(iii), 8 U.S.C. § 1182(a)(9)(A)(iii).

[449] See INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[450] INA § 240B(a)(1), 8 U.S.C. § 1229c(a)(1).

[451] INA § 240B(b)(2), 8 U.S.C. § 1229c(b)(2).

[452]  For more information see Nadine K. Wettsetin, The 1996 Immigration Act: New Removal Proceedings, Cancellation of Removal, and Voluntary Departure, 73 Interpreter Releases 1688 (Dec. 9, 1996).

[453] INA § 244(e), 8 U.S.C. § 1254a(e).

BIA

VOLUNTARY DEPARTURE - IJ ADVISAL
Matter of Gamero, 25 I. & N. Dec. 164 (BIA 2010) (noncitizen may ask BIA to remand case for new voluntary departure period where IJ failed to provide all advisals required under 8 C.F.R. 1240.26(c)(3), following grant of voluntary departure).

VOLUNTARY DEPARTURE - IJ CAN ORDER DETENTION AS CONDITION OF VOLUNTARY DEPARTURE
Matter of MAS, 24 I. & N. Dec. 762 (BIA Mar. 19, 2009) (Immigration Judge may order an alien detained until departure as a condition of a grant of voluntary departure).

First Circuit

RELIEF - VOLUNTARY DEPARTURE - BAR TO RELIEF
Naeem v. Gonzales, 469 F.3d 33 (1st Cir. Nov. 20, 2006) (motion to reopen before BIA properly denied where noncitizen was ineligible for relief sought due to failure to comply with terms of a grant of voluntary departure). http://laws.lp.findlaw.com/1st/052789.html

Second Circuit

RELIEF - VOLUNTARY DEPARTURE - PERIOD NOT TOLLED BY FILING TIMELY PETITION FOR REVIEW AND REQUEST FOR A STAY
Iouri v. Gonzales, 464 F.3d 172 (2d Cir. Sept. 13, 2006) (voluntary departure period is not stayed, tolled, or otherwise extended by timely filed petition for review or motion for a stay of deportation in underlying asylum case). http://caselaw.lp.findlaw.com/data2/circs/2nd/024992pv2.pdf

Third Circuit

JUDICIAL REVIEW " JURISDICTION BAR " CLASS ACTION CHALLENGING IMMIGRATION DETENTION WITHOUT BOND
Alli v. Decker, ___ F.3d ___, 2011 WL 2450967 (3d Cir. Jun. 21, 2011) (district court has subject matter jurisdiction to consider due process class action suit of persons detained under INA 236(c) without bond, despite 8 U.S.C. 1252(f)(1)).

RELIEF - VOLUNTARY DEPARTURE - STAY OF PERIOD
Obale v. Atty Gen. of the US, __ F.3d __ (3d Cir. Jun. 22, 2006) (court of appeals has jurisdiction to stay a grant of voluntary departure granted by BIA). http://caselaw.lp.findlaw.com/data2/circs/3rd/051109p.pdf

Fifth Circuit

OVERVIEW " VOLUNTARY DEPARTURE RELIEF
Ramos-Torres v. Holder, 637 F.3d 544 (5th Cir. Apr. 4, 2011) (administrative voluntary departure, under threat of deportation, is equivalent to voluntary departure under order of deportation, and stops the time for purposes of cancellation of removal).

Seventh Circuit

RELIEF - VOLUNTARY DEPARTURE - PRE-CONCLUSION REQUEST NOT ASSESSED UNDER THAT STANDARD UNLESS RESPONDENT WAIVES REMOVAL DEFENSES OR RELIEF
Hashish v. Gonzales, 442 F.3d 572 (7th Cir. Mar. 24, 2006) (timely request for pre-conclusion voluntary departure not alone sufficient to avoid stricter requirements of post-conclusion voluntary departure; other requirements of 8 U.S.C. 1240.26(b)(1)(i), including waiver of removal offenses or relief, must also be met).

Ninth Circuit

REMOVAL PROCEEDINGS " RELIEF " ELIGIBILITY " BURDEN OF PROOF
Young v. Holder, 697 F.3d 976 (9th Cir. Sept. 17, 2012) (en banc)(By placing the burden on the alien to show that prior convictions do not constitute aggravated felonies, the REAL ID Act established that an inconclusive record of conviction does not demonstrate eligibility for cancellation of removal, notwithstanding our holdings to the contrary in Sandoval"Lua, 499 F.3d at 1130, and Rosas"Castaneda, 655 F.3d at 886.).

JUDICIAL REVIEW " HABEAS " BIA DENIAL OF STAY OF REMOVAL
Shaboyan v. Holder, ___ F.3d ___ (9th Cir. Jun. 29, 2011) (BIA denial of stay of removal can only be challenged by federal habeas corpus under 28 U.S.C. 2241 in the United States District Court).

VOLUNTARY DEPARTURE - PRE-1988 AGGRAVATED FELONY
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (although the "aggravated felony" definition applies regardless of the date of conviction, an aggravated felony conviction occurring prior to November 18, 1988 does not trigger deportability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc). (1) During Removal Proceedings. The standard to qualify for voluntary departure prior to the completion of removal proceedings is less stringent than that for qualifying at the conclusion of proceedings. The only pre-order statutory requirement is that the noncitizen must not be deportable as an aggravated felon or for terrorist activities. Because this aggravated felony disqualification depends on being deportable, rather than on the existence of an aggravated felony conviction, it cannot be applied retroactively to an aggravated felony conviction predating November 18, 1988. (2) At Conclusion of Removal Proceedings. After removability has been established on the merits, a noncitizen may request voluntary departure in lieu of a final order of removal. To obtain voluntary departure at the conclusion of removal proceedings, the applicant must demonstrate at least five years Good Moral Character immediately preceding the request for voluntary departure. An aggravated felony conviction occurring after November 29, 1990 is a permanent bar to finding Good Moral Character, which is required for obtaining certain immigration benefits, such as naturalization. There is also a bar for one who is deportable under aggravated felony grounds. Because this latter aggravated felony disqualification depends on being deportable, rather than on the existence of an aggravated felony conviction, it cannot be applied retroactively to an aggravated felony conviction predating November 18, 1988.

NON-LPR CANCELLATION OF REMOVAL - CONTINUOUS PRESENCE
Gutierrez v. Mukasey, 521 F.3d 1114 (9th Cir. Apr. 2, 2008) (leaving the United States under voluntary departure broke continuous residence for purposes of non-LPR cancellation of removal).

Tenth Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " REVIEW OF CONTINUANCE DENIAL
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (court of appeals has jurisdiction to review Immigration Judges denial of continuance for abuse of discretion); overruling Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004); following Kucana v. Holder, 130 S.Ct. 827, 831, 175 L.Ed.2d 694 (2010) (decisions made discretionary by regulation do not come within the statutory jurisdiction bar of 8 U.S.C. 1252(a)(2)(B)(ii) and are reviewable); Vahora v. Holder, 626 F.3d 907, 915 (7th Cir.2010); see also Kwak v. Holder, 607 F.3d 1140, 1143 (6th Cir.2010) (stating that the denial of a motion for a continuance is subject to judicial review because the IJ's discretion derives from a regulation, not a statute); Thimran v. Holder, 599 F.3d 841, 844"45 (8th Cir.2010) (holding that Kucana compelled the conclusion that appellate courts have jurisdiction to review denials of motions for a continuance); Juarez v. Holder, 599 F.3d 560, 562 (7th Cir.2010) (finding that Kucana foreclosed the government's argument that 1252(a)(2)(B)(i) precludes review of motions for a continuance by a federal appellate court).

JUDICIAL REVIEW " STANDARD OF REVIEW OF DENIAL OF CONTINUANCE " ABUSE OF DISCRETION
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (court of appeals will reverse Immigration Judge denial of continuance only if the decision (a) was made without a rational explanation, (b) inexplicably departed from established policies, or (c) rested on an impermissible basis); see Bauge v. INS, 7 F.3d 1540, 1543 (10th Cir. 1993); Nunez"Pena v. INS, 956 F.2d 223, 226 (10th Cir.1992) (court of appeals will reverse for abuse of discretion only if the decision was made without a rational [ ] explanation, inexplicably departed from established policies, or rested on an impermissible basis); Kwak v. Holder, 607 F.3d 1140, 1143, 1143-1144 (6th Cir. 2010).

JUDICIAL REVIEW " PETITION FOR REVIEW " DENIAL OF CONTINUANCE
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned.); see also Paredes v. Att'y Gen., 528 F.3d 196, 198"99 (3d Cir. 2008); United States v. Adame"Orozco, 607 F.3d 647, 655 (10th Cir. 2010); United States v. Saenz"Gomez, 472 F.3d 791, 794 (10th Cir. 2007).

Other

RELIEF - REFUGEE STATUS - TERMINATION - REVIEW - NO REVIEW AVAILABLE
If the District Director terminates a refugee's Refugee Status under INA 207.9, and the ex-refugee is put into INA 240 removal proceedings, he apparently cannot contest that termination before the IJ, or in any other forum, because INA 207.9 states: "there is no appeal under this chapter from the termination of refugee status by the district director."

VOLUNTARY DEPARTURE - NEW REGULATIONS EFFECTIVE JAN. 20, 2009
On December 18, 2008, the EOIR published a new regulation on voluntary departure, specifically addressing a number of issues that have been subject to litigation, including whether voluntary departure tolls upon filing a motion to reopen or appeal. 73 Fed. Reg. 76927 (Dec. 18, 2008). The regulation may be viewed here: www.aila.org/content/fileviewer.aspx?docid=27460&linkid=187734

Among other changes, the new rule states that:

1. Filing a motion to reopen, motion to reconsider or appeal will terminate the voluntary departure, and the alternative order of removal will go into effect. A court of appeals cannot stay the VD period. However, if the noncitizen is able to prove s/he departed within 30 days of filing an appeal, the departure will not be considered a removal.

2. Bond must be paid within 5 business days of the order. DHS may detain the noncitizen until bond is posted. If bond is not posed within five days, the VD is terminated. However, even though terminated, the noncitizen will still face all the penalties for failure to depart.

3. While the VD terminates, it may be reinstated upon denial of a motion to reopen, reconsider, or loss of an appeal. However, an appellate court cannot reinstate VD unless the noncitizen has proven, within 30 days of filing the appeal, that bond was posted.

This new rule essentially overrules a number of prior cases, including Dada v. Mukasey, 128 S. Ct. 2307 (2008), Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996); Matter of Diaz-Ruancho, 24 I. & N. Dec. 47 (BIA 2006), and various circuit court decisions that had held that the appellate court had the power to stay a period of voluntary departure pending appeal.

A Q&A created by AILF, explaining the most important points, may be found here: http://www.ailf.org/lac/pa/VoluntaryDeparture_QandA_12_22_2008.pdf

RELIEF - VOLUNTARY DEPARTURE V. VOLUNTARY REMOVAL
A "voluntary return" may sometimes refer to a procedure different from "voluntary departure." When referring to something other than voluntary departure, the term generally means allowing a noncitizen to return to (usually) Mexico or Canada without proceedings and without a determination of removability.

The paperwork for VR is different than ICE uses/used for VD. Pre-2003, when there was a VD, the forms would indicate the statutory cite, the amount of time granted, proof of compliance with VD (or lack thereof), and if the VD order came from EOIR, there would/should be evidence of the advisals for overstays of VD. Until you review the A file, you cannot know, for sure, whether something was a VR, VD, or some sort of removal.

It's important to distinguish whether a client had a VR or VD, because if VD, then there needs to be proof of timely compliance with the order. Under that unusual practice of "VD under safeguards." ICE has sometimes paid for VR, as well as VD, so you can't necessarily tell the difference between VR and VD depending on who buys the plane ticket. Thanks to Debbie Smith