Aggravated Felonies

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).