Voluntary departure permits an individual, who is otherwise removable, to depart from the country at her own expense within a designated amount of time in order to avoid deportation proceedings or a final order of removal.
The individual could request voluntary departure pursuant to section 240B(a) and an immigration judge may grant it when:
- request is made prior or at Master Calendar hearing, the individual must show that he/she:
- respondent waives or withdraws all other requests for relief
- Concedes removability;
- Waives appeal of all issues;
- Has not been convicted of an aggravated felony and is not a security risk; and
- Shows clear and convincing evidence that he/she intends and has the financial ability to depart.
- Waives appeal of all issues; and
- Has not been convicted of an aggravated felony or terrorist activities.
An individual may also apply for voluntary departure after the conclusion of proceedings, provided that the individual meets the following requirements:
- Shows physical presence for one year prior to the date the Notice to Appear is issued;
- Shows clear and convincing evidence that he or she intends and has the financial ability to depart;
- Pays a bond (of at least $500) if the Judge requires so;
- Shows good moral character for five years prior to the application; and
- Presents to the DHS a valid passport or other travel document sufficient to show lawful entry into her country, unless such document is already in the possession of the DHS or is not needed in order to return to her country.
It is important to understand that individuals who are granted voluntary departure must depart within the time specified by the immigration Judge. Although the Immigration Judge has discretion to set a shorter deadline, individuals granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60 days.
Individuals in custody choosing voluntary departure could be removed within a week of such request provided they have current passport and prepaid tickets to the country of their citizenship.
Voluntary departure automatically becomes a removal order if an individual fails to depart within the given time period.
In order to avoid a penalization for choosing to appeal a decision rather than depart, the BIA usually will extend an earlier grant of voluntary departure for 30 days.
There are Penalties for failure to depart:
Civil: Aliens granted voluntary departure who failed to depart are subject to fine of $1,000 unless the judge orders otherwise.
10 year-bar to immigration relief: when an individual did not leave the U.S. within the time period indicated on the court order he/she is ineligible for the following forms of relief for the next 10 years:
- cancellation of removal and adjustment of status of permanent residents,
- adjustment of status,
- change of nonimmigrant classification, and record of admission for permanent residents .
For example, if an individual would marry an U.S. citizen and would be eligible to adjust her status through her marriage but because she failed to follow the court order and did not depart she cannot adjust her status for 10 years.
These restrictions do not apply to the individuals if extreme cruelty or battery was the main reason for the alien to overstay the grant of voluntary departure.
IS AN INDIVIDUAL WITH GRANT OF VOLUNTARY DEPARTURE ELIGIBLE FOR PROVISIONAL WAIVER?
First of all, an individual who was granted voluntary departure is ineligible for a provisional waiver while the voluntary departure period is still in effect. Further, if the individual does not depart as required under the voluntary departure order, the alternate order of removal takes effect. However, 8 CFR §212.7(e)(4)(iv) makes an exception to the final order bar where the applicant first successfully obtains an approved I-212.
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