Criminal Defense of Immigrants

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.[342]  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.[343]  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. 

                For more on voluntary departure, see § § 15.29-15.33, supra.

[342]  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).

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