Criminal Defense of Immigrants


§ 24.27 XVI. Voluntary Departure

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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).



Ninth Circuit

Gutierrez v. Mukasey, 521 F.3d 1114 (9th Cir. Apr. 2, 2008) (leaving the United States under voluntary departure broke continuous residence for purposes of non-LPR cancellation of removal).


A "voluntary return" may sometimes refer to a procedure different from "voluntary departure." When referring to something other than voluntary departure, the term generally means allowing a noncitizen to return to (usually) Mexico or Canada without proceedings and without a determination of removability.

The paperwork for VR is different than ICE uses/used for VD. Pre-2003, when there was a VD, the forms would indicate the statutory cite, the amount of time granted, proof of compliance with VD (or lack thereof), and if the VD order came from EOIR, there would/should be evidence of the advisals for overstays of VD. Until you review the A file, you cannot know, for sure, whether something was a VR, VD, or some sort of removal.

It's important to distinguish whether a client had a VR or VD, because if VD, then there needs to be proof of timely compliance with the order. Under that unusual practice of "VD under safeguards." ICE has sometimes paid for VR, as well as VD, so you can't necessarily tell the difference between VR and VD depending on who buys the plane ticket. Thanks to Debbie Smith