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.  See § 24.27, infra.  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 which creates a bar to 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 to avoid a ground of inadmissibility: 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.[300]  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.[301]  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.[302]  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).[303]  It is easier for a noncitizen to qualify for pre-conclusion voluntary departure, but merely requesting this form of voluntary departure is not enough; the noncitizen must also be statutorily eligible to receive it.[304] 

 

Voluntary departure 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.[305]  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.[306]

[300]  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).

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

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

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

[304] 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).

[305]  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).

[306] 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).

RELIEF - VOLUNTARY DEPARTURE - FAILURE TO POST BOND AFTER JANUARY 20, 2009
Matter of Velasco, 25 I. & N. Dec. 143 (BIA Nov. 20, 2009) (under new regulations effective January 20, 2009, a noncitizen who failed to post a required voluntary departure bond within time required subjects noncitizen to consequences for failure to depart). 8 C.F.R. 1240.25(c)(3)-(4) (2009).

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).

Second Circuit

RELIEF - VOLUNTARY DEPARTURE
United States v. Garcia, 2008 WL 3890167 (E.D.N.Y., Aug. 19, 2008) (successful collateral attack of deportation order where IJ failed to inform noncitizen of possibility of voluntary departure).

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).

Eighth Circuit

VOLUNTARY DEPARTURE
Garcia-Mateo v. Keisler, 503 F.3d 698 (8th Cir. Oct. 4, 2007) (noncitizens do not have due process interest in discretionary relief in the form of pre- or post-conclusion voluntary departure).

Ninth Circuit

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.

Tenth Circuit

RELIEF " NON-LPR CANCELLATION OF REMOVAL " CONTINUOUS PHYSICAL PRESENCE REQUIREMENT
Barrera-Quintero v. Holder, 699 F.3d 1239 (10th Cir. Nov. 15, 2012) (voluntary departure under threat of deportation breaks physical presence for purposes of non-LPR cancellation of removal).

Other

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

VOLUNTARY DEPARTURE - FAILURE TO DEPART
The Fugitive Case Management System (FCMS) is an ICE database that processes, tracks, and stores information about aliens who fail to leave after receiving a final order of removal, deportation or exclusion, or who failed to report to ICE after receiving a notice. FCMS supports the ICE National Fugitive Operations Program, which is intended to locate, arrest, and remove fugitive aliens from the United States. AILA Doc. No. 09081365.