Since you face deportation from the United States as a foreign national, chances are that voluntary departure is your only window of opportunity, which gives you a legal way of leaving the country while still not bearing the full brunt of your immigration history. Below is a detailed analysis of Voluntary Departure, where we will outline whom it is legal to ask for it and what are the chances for the request to be approved.
Understanding the Timing of Voluntary Departure
Your eligibility for voluntary departure hinges on when you make the request, which can occur at different stages of the removal process:
Before Removal Proceedings
Voluntary departure can be requested before the commencement of removal proceedings, typically before your hearing in immigration court. This is often the earliest opportunity to seek this option.
During Removal Proceedings
You can also request voluntary departure while removal proceedings are ongoing. This may happen during your immigration court hearings, providing another chance to pursue this option.
After Removal Proceedings
The final opportunity for voluntary departure arises after removal proceedings. This is usually considered when other defenses or forms of relief are not viable options.
Benefits of Voluntary Departure
The advantage of Voluntary departure is that although the departing is compelled to leave the United States legally one doesn’t face a restriction on re-entering the United States legally in the future. While it may still be necessary to obtain a new visa or green card while you are currently inadmissible, this will be possible when you have not been deported and there is no order for deportation against you.
When to Consider Voluntary Departure
Whether voluntary departure makes sense for you depends on your circumstances:
Interest in Returning:
If leaving the possibility of returning to the United States matters to you, voluntary departure is a more favorable option.
Financial Considerations:
If you can’t afford the return ticket to your home country and prefer the U.S. government to arrange your transportation, you might lean toward awaiting an order of deportation.
Requesting Pre-Hearing Voluntary Departure From the DHS
Before you even appear before an immigration judge, you have the option to request a voluntary departure from the Department of Homeland Security (DHS). This is often pursued after being arrested by U.S. immigration officers and potentially placed in an immigration detention facility.
Eligibility requirements for voluntary departure from the DHS are relatively flexible. The goal is to facilitate your departure, with the expectation that you will leave at your own expense within up to 120 days. The DHS may require you to post a bond, stay in detention until departure, or adhere to certain safeguards.
However, pre-hearing voluntary departure is not available to non-citizens stopped at the U.S. border, aggravated felons, or individuals involved in terrorist activities.
Strategic Considerations
The decision to request voluntary departure from DHS should align with your immigration situation:
No Eligibility for Relief:
If you do not qualify for any relief and wish to return to your home country promptly, voluntary departure may be the most straightforward choice.
Potential Relief:
If you have a defense to deportation or believe you may qualify for immigration relief like asylum, cancellation of removal, or adjustment of status, waiting to present your case before an immigration judge may be more beneficial.
Seeking Voluntary Departure at the Start of a Removal Hearing
At the initial master calendar hearing in immigration court, you can request voluntary departure. However, this decision carries significant consequences:
To qualify for voluntary departure at this stage, you must:
Timely Request:
Make the request before or at the first master calendar hearing.
No Other Relief: Request no other form of relief except voluntary departure.
Admission of Removability: Admit that you are removable from the United States.
Waiver of Appeal: Waive the right to appeal all issues.
Eligibility Criteria:
Prove that you have not been convicted of an aggravated felony and are not deportable for national security or public safety reasons.
The immigration judge exercises discretion in granting voluntary departure, taking into account factors such as your criminal and immigration history, as well as your ties to family and the community in the United States.
Voluntary Departure During Removal Proceedings From DHS
While rare, the DHS attorney may agree to voluntary departure at any point during your removal hearings. This requires coordination between you or your attorney and the DHS attorney in the courtroom.
However, the DHS will not agree to voluntary departure if you are deportable as an aggravated felon for national security or public safety reasons or if you have serious criminal offenses on record.
Voluntary Departure at the End of a Removal Hearing
In certain situations, you may opt for voluntary departure after your removal proceedings, often when other defenses or relief options are not promising.
To qualify at this stage, you must meet specific requirements:
- Length of U.S. Stay: Have been physically present in the United States for at least one year before receiving the Notice to Appear (NTA) from the DHS.
- Financial Means: Possess the financial means to post a bond within five days of the judge’s order.
- Good Moral Character: Demonstrate good moral character for at least five years before seeking voluntary departure.
- Exclusions: Not be an aggravated felon, terrorist, or previously granted voluntary departure after being found inadmissible.
- Travel Documents: Produce a valid passport or travel document for inspection and authentication by the U.S. government.
- Financial Commitment: Establish that you have the financial means to leave the United States at your own expense within the required time.
If the immigration judge approves your request, you will receive an order specifying your departure date. You must also post a voluntary departure bond, set by the judge, within five days of the order.
The Advantage of Voluntary Departure
The various stages at which you can request voluntary departure come with varying eligibility requirements. The longer you wait, the more stringent the criteria become. For individuals with no legal means to stay in the United States, voluntary departure provides an option to leave at their own expense within a defined time frame, with fewer adverse consequences compared to deportation.
Legal Guidance
If you find yourself in immigration court proceedings, especially if you lack legal representation, consulting with an immigration attorney is advisable. They can assess your potential for temporary or permanent rights to stay in the United States, guiding your decision-making process. Whether you continue with immigration court hearings or opt for voluntary departure, legal counsel can be invaluable.
In conclusion, voluntary departure is a crucial option for foreign nationals facing deportation from the United States. Understanding the timing and eligibility criteria is essential for making informed decisions about your immigration future. If you are in doubt about your situation, seek legal guidance to explore your options fully.
