Voluntary departure occurs when an alien is allowed to leave the U.S. without a formal order of removal. This act does not always require removal proceedings to have been commenced prior to departure. However, in some instances, a hearing was held in front of an immigration judge.
Generally, a voluntary departure means the alien will likely avoid a certain bar that prohibits the alien from seeking future entry into the U.S. When accepting voluntary departure, the alien must leave within the time allotted. If the immigrant does not leave within the ordered time frame, the voluntary departure will automatically convert to a final order of removal. The immigrant will also be subject to a potential fine as well as possible bars to other forms of relief in the future.
Immigration and Nationality Act (INA)
The INA explains that both immigration judges and the Department of Homeland Security (DHS) have the authority to permit an alien to voluntarily leave the U.S. rather than being forcefully removed. According to the INA, the alien must leave the U.S. within 120 days if voluntary departure was decided upon prior to the conclusion of the immigration proceedings. However, if the immigration proceedings were completed before the determination of voluntary departure, the alien has 60 days to depart.
Before an alien can be granted voluntary departure, there are a range of security tests that are generally conducted in order to ensure the determination of voluntary departure is appropriate.
Typically, background checks are conducted by DHS in order for the immigration judge to properly decide the issue of voluntary departure. This includes a check of the alien's good moral character. While DHS routinely performs these types of security background checks, the immigration judge is not required to wait for the report back from DHS before making a decision regarding voluntary departure.
However, DHS may request additional time to finalize its investigations prior to the judge's final determination. This is something that is considered on a case-by-case basis.
Before the Conclusion of the Hearing
As noted above, if voluntary departure is requested prior to the close of the hearing, there are different factors that will be considered. In this case, the alien must show that he:
- Waives or withdraws all other requests for relief;
- Concedes removability;
- Waives any appeal of all other issues;
- Has not been convicted for an aggravated felony and is not a security risk;
- Can provide clear and convincing evidence that he intends to depart; and
- Has the financial ability to depart.
After the Conclusion of the Hearing
If the voluntary departure is requested after the hearing, a different set of factors are considered by the court. Here, the alien must show that he:
- Has had physical presence for one year prior to the date the Notice to Appear was issued;
- Can provide clear and convincing evidence that he intends to depart;
- Can provide clear and convincing evidence that he has the financial capability to depart;
- Has acted with good moral character for 5 years prior to the application; and
- Has a valid passport or other sufficient travel documentation that will allow for lawful entry into the other country.
Do You need an Attorney?
If you are dealing with issues related to voluntary departure or other immigration issues, contact an experienced immigration attorney who will help you navigate through this difficult process.