There is a little-known but highly recommended form of relief available to non-citizens who are considered “removable” from the United States. This form of relief is called “Voluntary Departure.” The advantage of Voluntary Departure is that, in many cases, there is no bar to returning to the United States if the noncitizen is eligible to return to the United States as an immigrant or nonimmigrant. That is, a non-citizen can return to the United States without having a formal deportation on record. Of course, there is the obvious disadvantage, and that is that the non-citizen must leave the United States in an effective and timely manner. If a non-citizen does not leave the United States, there are serious consequences: the non-citizen is no longer eligible for future Voluntary Departure, is also no longer eligible for other forms of relief from removal, and may incur fines of thousands of dollars.
There are several stages in which a non-citizen can apply for Voluntary Departure. First, the non-citizen can apply before removal proceedings begin. At this stage, the non-citizen’s application will be made to the District Director of the Department of Homeland Security (“DHS”). Immigration and Customs Enforcement (“ICE”), an agency within DHS, may accept such a request at any of its field offices. Second, the non-citizen may apply after removal proceedings have begun, but before removal proceedings are complete. At this stage, the non-citizen must appear at the Master Calendar Hearing (“MCH”) and expressly request Voluntary Departure from the IJ. The IJ may grant Voluntary Departure within 30 days of the MCH or beyond that time if so provided by DHS. Third, the non-citizen can request Voluntary Departure at the end of the deportation process. This third stage is more complicated than the first two; because at this stage, the non-citizen must show that they are ready, willing, and able to leave the US on their own, that they have been a person of good moral character for the previous five years, that they have been physically present in the United States for a period of at least one year immediately preceding the service of the Notice to Appear, is not removable under certain sections of the Immigration and Nationality Act (“INA”) for having committed certain security-related or aggravated crimes , Voluntary Departure was not previously granted, and that merits the favorable exercise of discretion. In addition, the non-citizen must demonstrate by clear and convincing evidence that he has the financial ability to leave the US and that he intends to do so. In the first and second stages, proof of good morals is not required.
Once you have been granted voluntary departure and leave the US, there may be time limits on when you are eligible to legally return to the US if you have lived in the US illegally for more than 180 days but less than a year and you are granted Voluntary Departure (Stage 1, above) by DHS or self-absent, you will be barred from returning to the US for three years. If with the same previous facts you request Voluntary Departure from the IJ, you will not be subject to the three-year ban. If, on the other hand, you have lived in the US illegally for more than a year (continuously) and you are granted voluntary departure by DHS or IJ, or you leave on your own, you will be barred from returning to the US. USA ten years. Whether it’s the three-year or the ten-year bar, there may be “hardship waivers” you can apply for to get past the bar back.
This article is intended as an introduction only and does not constitute legal advice.