Criminal Defense of Immigrants


§ 15.31 b. During Removal Proceedings

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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[307] is that the noncitizen must not be deportable as an aggravated felon[308] or for terrorist activities.[309]


A noncitizen granted voluntary departure under this section may be given up to 120 days in which to depart the United States.[310]  S/he may be required to post a bond and meet other conditions imposed by the Immigration Judge.[311]


                Under the regulations, the noncitizen must request voluntary departure at or prior to the initial master calendar hearing (or obtain the stipulation of the DHS).  S/he must also concede deportability, make no additional request for relief, and waive appeal of all issues.[312]  Requesting voluntary departure at this stage will make it impossible for the noncitizen to raise any legal arguments against, removal, or seek any form of relief.


This form of voluntary departure is not available to “arriving aliens.”  An “arriving alien” attempting to enter the United States legally, however, may apply to withdraw the application for admission.[313]

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

[308] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[309] INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B).

[310] INA § 240B(a)(2)(A), 8 U.S.C. § 1229c(a)(2)(A).

[311] INA § 240B(a)(3), 8 U.S.C. § 1229c(a)(3); 8 C.F.R. § 240.26(a)(3)(i).

[312] See 8 C.F.R. § 240.26.

[313] INA§ 235(a)(4), 8 U.S.C. § 1225(a)(4).



Fifth Circuit

Sierra Vidal v. Gonzales, 491 F.3d 250 (5th Cir. Jun. 27, 2007) ("[I]t [was] an open question whether, once the attorney general has granted voluntary departure, we then have jurisdiction to toll the period of voluntary departure so to preserve the status quo during our review of the petitioner's case. We hold that we have jurisdiction to issue such stays, a conclusion supported by decisions of the First, Second, Third, Sixth, Seventh, Eighth, and Ninth Circuits. Only the Fourth Circuit has reached the opposite result.").