By Robert L. Reeves and Nancy E. Miller

Aliens in removal proceedings are faced with the very real possibility of being deported from the United States.  During the course of those proceedings, the non-citizen may request relief in the form of adjustment of status, cancellation of removal, asylum, waivers from removal or various combinations of the same.  Sometimes, the alien is not eligible for any of those forms of relief.

Sometimes, the alien is statutorily eligible for relief but the facts do not make a strong case.  Either the immigration judge or the alien’s attorney will discuss the possibility of taking voluntary departure in order to avoid a deportation order.  The question the alien faces is whether s/he should take voluntary departure. Many issues must be considered in order to make an informed decision in this matter.

The maximum amount of time that an immigration judge can give an alien to voluntarily depart the United States is 120 days.  This amount is only available at the beginning of proceedings (with a few exceptions).  In addition, the granting of that amount of time requires that the alien waive all rights to appeal.  If the alien accepts this form of voluntary departure, he or she should plan on leaving the United States in less than 119 days from the date of the order.

If the alien elects to pursue other relief in the hearing on the merits and that relief is denied, the maximum amount of voluntary departure time the immigration judge can give is 60 days.  The alien may pursue an appeal of the denial of the other relief and is entitled to remain in the United States during the pendency of that appeal.  While the matter is on appeal before the Board of Immigration Appeals (Board), the 60 day clock is stopped.  However, it begins to run the day the Board dismisses the appeal.

At that point, the alien may want to continue appealing the case by filing a petition for review with the U.S. Court of Appeals.  Filing the petition for review does not prevent removal.  In order to be able to remain in the United States while the Circuit Court of Appeals petition is pending, the alien must file a motion to stay removal which may or may not be granted.

The filing of the petition for review with the Court of Appeals nullifies the grant of voluntary departure.  So does the filing of a motion to reopen (which is sometimes appropriate if the alien becomes eligible for a new form of relief).  The nullification results in the alien having an order of removal.

If the alien fails to depart the United States during the period of voluntary departure, the order automatically becomes an order of removal.  No one has to go back into court to get a new order.  The judge does not need to issue any additional order.  This is important for several reasons.  An alien with a removal order is ineligible to apply for adjustment of status, change of status or cancellation of removal for ten years from the entry of the final order of removal (i.e. the unappealed decision from the judge or the decision from the Board).

Additionally, an alien who was granted voluntary departure and failed to leave during the requisite time is barred from relief for a period of ten years for having failed to depart during the voluntary departure period.  These periods run concurrently (together). If the alien leaves on his own after the period of voluntary departure has run, he is considered to have self-deported.

He does not escape the negative consequences of failing to leave on time.  He still incurs the ten year bar that a removal order carries. He may be able to obtain a waiver of that bar and return to the United States in less than ten years if he can show sufficient hardship. It is a difficult standard to meet.

Whether he leaves on time or after the expiration of the voluntary departure time period, he faces serious problems that will affect his ability to return to the United States. If he has been in unlawful status in the United States for a period of one year or more, once he leaves the United States, he incurs a ten year bar from returning. In order to apply for an immigrant visa waiver for overstaying, he must show that his U.S. citizen or lawful permanent resident parent or spouse would suffer extreme hardship if he were not permitted to return.

Children are not qualifying relatives for purposes of this waiver.  (If he has been in unlawful status for more than six months but less than one year and leaves under court-ordered voluntary departure, he does not incur the three year bar. If he incurs the ten year bar and returns illegally, he incurs a lifetime bar and he must be outside the US for a period of 10 years before he can even apply for a waiver.)

Since the alien who has one year or more of unlawful presence and leaves on time under voluntary departure incurs the same ten year bar as the alien who is forceably removed by the government, the alien may well wonder what the advantage is of accepting voluntary departure.  As a practical matter, it is almost impossible to obtain a new nonimmigrant visa after accepting voluntary departure and, therefore, for most people, voluntary departure is a lifetime bar.

No one should accept voluntary departure without a clear understanding of how they will be able to return to the U.S. in the future.  Before anyone accepts voluntary departure, he should thoroughly discuss the matter with an experienced immigration lawyer.

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