Voluntary Departure

If you are facing possible removal from the United States, immigration officials may offer voluntary departure so you can leave the country on your own. Voluntary departure and mandatory removal both result in leaving the United States. However, the departure method may impact whether you can return legally in the future.

Accepting voluntary departure can mean you avoid removal, arrest, and confinement. However, penalties for failure to leave within the departure window can include fines, arrest, and removal.

Before accepting voluntary departure, make sure you understand your legal rights and options. U.S. immigration laws can change at any time. Talk to an experienced immigration lawyer for legal advice about voluntary departure and removal.

Definition of Voluntary Departure Instead of Removal

Instead of facing forced removal and a final order of removal on your immigration record, you may request to leave the country on your own. If granted, you can get a window of time in which to leave and return to your home country. Voluntary departure means leaving the country on your own and at your own expense.

If you do not leave the country within the voluntary departure period, you will face an automatic order of removal and may also incur fines. Removal by the Department of Homeland Security (DHS) means they will remove you on their schedule and transport you where they want. In some cases, DHS can deport immigrants to a location that is not their home country.

Benefits and Disadvantages of Voluntary Departure Time

The most significant benefit of a voluntary departure is that no formal removal goes on your record. However, previous unlawful presence may still affect your ability to re-enter the country legally or apply for a green card.

However, to avoid a final order of removal, you must meet certain requirements. An immigration judge must find:

• You have been physically present in the U.S. for a period of at least one year preceding the notice to appear
• You are of good moral character for at least five years prior to departure
• You are not removable for an aggravated felony, for espionage, or for security threats
• You have established that you have the means and intent to leave the U.S. within the departure period

The primary drawback is that those who seek voluntary departure must agree to waive their right to appeal or seek further relief. People who wait until the end of a removal proceeding to request voluntary departure may need to post bond and meet other strict criteria. The time frame in which you apply can affect your status.

Bonds and Leaving the Country on Time

When you submit an application for voluntary departure, you must show that you can leave the country at your own expense and pay for your travel. In some cases, it may be necessary to post a voluntary departure bond. The U.S. government returns the bond on proof that the alien has departed the U.S. within the required amount of time.

If approved, a judge can grant up to 120 days to leave the country if the request is made before the merits hearing. For requests made at the conclusion of proceedings, you have up to 60 days to leave. Failure to do so could result in reclassification of the departure as order of removal. Loss of your order of voluntary departure makes reentry much more difficult in the future.

Automatic Termination of Voluntary Departure Order

If you request voluntary departure, you can lose the benefit of the program if you try to reopen your immigration case before leaving the U.S. There are three instances in which an order of voluntary departure may be automatically terminated:

• Filing a petition to review an immigration court judicial decision. 
• You file a motion to reopen or reconsider your case. This does not pause or extend the time that you have to leave the country after the grant of voluntary departure.
• You fail to post bond if required. Failure to post the voluntary departure bond will automatically vacate the order.

Consequences for Failure To Depart

There are several consequences for failing to leave the country under the terms of the voluntary departure. Most importantly, the voluntary departure becomes a formal removal order. An encounter with ICE will put you into custody and removal proceedings.

Those who violate their voluntary departure terms could face fines of $1,000 to $5,000.

Unlawful Presence: Options for Families and Employees

Those who don’t think they will have an order of removal overturned may wish to voluntarily leave the country. While it may not be ideal for an individual to leave a job, family members, and others behind, it may be the best way to come back legally in the future.

An attorney can often work with the government to establish that you meet the criteria for voluntary departure instead of removal. An experienced immigration lawyer can also explain your alternative legal options to stay in the country. For legal advice on voluntary departure, talk to an experienced immigration attorney.