Voluntary Departure

Depending on your particular circumstances, it may benefit you to seek voluntary departure rather than submit an application for other forms of relief. Non-citizens that have an immediate visa number available to them through a family based petition may decide to forego removal proceedings, instead proceeding through consular processing. If you choose to seek voluntary departure, you may do so before facing removal proceedings, during removal proceedings, or after the conclusion of removal proceedings. The eligibility requirements differ depending on the stage at which you request a voluntary departure.

Voluntary Departure Before Removal Proceedings

Immigrations and Customs and Enforcement (ICE) permits an otherwise removable non-citizen to depart the United States at his or her own expense. Section 240B(a)(1) of the Immigration and Nationality Act states that a non-citizen may seek voluntary departure rather than facing removal proceedings if the non-citizen has not been convicted of an aggravated felony. Voluntary departure is strictly limited in time to 120 days.

Voluntary Departure During Removal Proceedings

Otherwise, an Immigration Judge may permit an otherwise removable non-citizen to depart the United States at his or her own expense. In such a case, a non-citizen awaits a hearing before an Immigration Judge. The first hearing is called a Master Calendar hearing. It is scheduled in advance and notice is sent by mail to the non-citizen. Once the non-citizen appears before an Immigration Judge on the scheduled hearing date, the non-citizen may request voluntary departure. There are additional requirements at this stage. The non-citizen must specifically request voluntary departure, admit removability, withdraw all other applications for relief, waive appeal of all issues, and show that he or she has not been convicted of an aggravated felony, INA § 101(a)(43), or any security related grounds, INA § 237(a)(4).

Significantly, a person should not ask for voluntary departure if he or she intends to fight the case. In other words, if a person is eligible for other forms of relief, and wishes to pursue those forms of relief (e.g. submitting EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents), then a non-citizen should not ask for voluntary departure at this juncture in the removal proceedings. An immigration judge may grant voluntary departure within 30 days after the non-citizen's Master Calendar Hearing or if agreed upon with the Department of Homeland Security.

Voluntary Departure After the Conclusion of Removal Proceedings

Alternatively, an Immigration Judge may permit an otherwise removable non-citizen to depart the United States at his or her own expense after the conclusion of removal proceedings. In such a case, the non-citizen will request voluntary departure after an Immigration Judge has ruled on the non-citizen's other forms of relief. For example, if a non-citizen submits Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents, but the Immigration Judge denies such relief because the non-citizen failed to show that his or her qualifying relatives would suffer "exceptional and unusually extreme hardship," the Immigration Judge concludes the removal proceedings.

In turn, the Immigration Judge may consider voluntary departure as an alternative to removal at the request of the non-citizen. The requirements are stricter at this stage of removal proceedings. The non-citizen must show that (1) he or she was physically present in the United States for at least one year prior to being served with Form I-862, Notice to Appear, (2) has been a person of good moral character for five years immediately preceding the request, (3) has not been convicted of an aggravated felony, INA § 101(a)(43), or any security related grounds, INA § 237(a)(4), and (4) show by clear and convincing evidence that he or she has the means to depart voluntarily and intends to do so. 8 C.F.R. § 1240.26(c).