Criminal Defense of Immigrants


§ 15.32 c. At End of Removal Proceedings

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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[314] the applicant must:


(a)     have been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served;[315]

(b)     demonstrate at least five years Good Moral Character immediately preceding the request for voluntary departure;

(c)     demonstrate by clear and convincing evidence the intent and means to depart the United States;[316] and

(d)     not be deportable under aggravated felony[317] or security-related grounds.[318]


A noncitizen granted voluntary departure under this section may be given up to 60 days in which to depart the United States.[319]  S/he will be required to post a bond of at least $500.00, and may be required to meet other conditions imposed by the Immigration Judge.[320]  Failure of an Immigration Judge to notify a respondent of eligibility for voluntary departure may be a sufficient basis on which to challenge the validity of an order of removal.[321]


An advantage of post-conclusion voluntary departure is that the noncitizen is allowed to present any available arguments against removal and applications for relief to the Immigration Judge.  A noncitizen granted voluntary departure at this stage is also still allowed to bring an appeal before the Board of Immigration Appeals.

This form of voluntary departure is available to noncitizens subject to a ground of inadmissibility.  Significantly, post-conclusion voluntary departure is available to applicants for asylum and related forms of relief subject to inadmissibility, and who have been denied relief by the Immigration Judge.  Given the one-year physical presence requirement, and the one-year statute of limitations for bringing an asylum claim,[322] counsel may want to consider how best to present the applications for relief.

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

[315] Tovar-Landin v. Ashcroft, 361 F.3d 1164 (9th Cir. Mar. 18, 2004) (one-year physical presence requirement does not violate due process or equal protection; no fundamental right to discretionary privilege of voluntary departure exists; one-year requirement not wholly irrational).

[316] This requirement includes both financial means, and often proof of travel documentation sufficient to return to the country of removal.  See 8 C.F.R. § 240.26(c)(3).

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

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

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

[320] INA § 240B(a)(3), 8 U.S.C. § 1229c(a)(3); 8 C.F.R. § 1240.26(c)(3).

[321] United States v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. Oct. 6, 2004) (defendant in illegal re-entry case allowed to attack deportation order collaterally where IJ failed to advise him about his eligibility for voluntary departure).

[322] INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B).



Corro Barragan v. Holder, __ F.3d __ (9th Cir. Jun. 10, 2013) (a noncitizen must have one year of uninterrupted physical presence in the United States in order to be eligible for voluntary departure under 8 U.S.C. 1229c(b)), agreeing with Medina Tovar v. U.S. Att'y Gen., 646 F.3d 1300, 1306 (11th Cir. 2011).

Eleventh Circuit

Alvarado v. U.S. Atty. Gen., 610 F.3d 1311 (11th Cir. Jul. 8, 2010) (respondent's initial request for voluntary departure after the Immigration Judge issued an oral decision denying other relief was not untimely; at conclusion of proceedings includes a request for voluntary departure after IJ issues oral decision).