If you are a non-citizen who has been detained by ICE, you will most likely end up in removal proceedings.
This is a term for the legal process which ends in either a green card or a deportation order.
However, some aliens choose to voluntarily leave the country during these proceedings rather than fighting out their case in immigration court.
The largest benefit of this method is that, unlike individuals who are deported, individuals who choose voluntary departure may be able to re-enter the United States at a later date without experiencing many of the negative consequences of deportation.
In this article, we’ll talk about what it means to leave voluntarily. However, you should always consult with an immigration lawyer before making any decisions in your case.
Voluntary departure is simply one of many strategies which may apply to your particular situation. Only an experienced attorney can guide you to the best choice in your particular situation.
What is Voluntary Departure?
"Voluntary departure" is a discretionary form of relief which serves to simplify the deportation process.
Essentially, at any point in the process, from when you're picked up by ICE to the end of your removal proceedings, you can ask the person in charge of your case to simply let you leave the country voluntarily.
This individual (usually an Immigration Judge) can then exercise their discretion to either approve or deny your request.
If they approve your voluntary departure request, they'll give you a specific date you must leave the country by and then release you.
Generally, this will be either 60 or 120 days after the date they approved your voluntary departure.
If they deny your request (usually because you don't meet the eligibility requirements), you will simply proceed through removal proceedings as normal.
How is voluntary departure different from deportation?
During removal proceedings, you must prove to an Immigration Judge that you have a right to remain in the United States.
For example, you could submit an asylum petition due to fear of returning to your home country.
If you have no legal basis for staying in the country, the judge will likely issue you a deportation order.
If you know that you have a weak legal basis for staying in the country, you may want to consider voluntary departure as an alternative to deportation.
This is because voluntary departure generally doesn't carry the same immigration penalties that deportation does.
Normally, when someone is deported, they are banned from reentering the United States for ten years.
By choosing to depart voluntarily, you may be able to avoid this penalty.
However, it is important to recognize that voluntary departure does not guarantee you can return to the United States.
A border control agent can still declare you inadmissible for any number of reasons. For example, if you illegally lived in the United States more than a year, you will still be inadmissible.
This is true even if you opt for voluntary departure.
Am I Eligible for Voluntary Departure?
To be eligible for voluntary departure, you must not be deportable as an "aggravated felon."
This means that the Department of Homeland Security must not find that you have been charged you with certain crimes.
For example, you may be ineligible for voluntary departure if a court finds you guilty of:
- Murder
- Illicit trafficking of a controlled substance
- Any violent crime which resulted in a sentence of longer than one year (such as assault and battery)
- Any crime involving theft which resulted in a sentence of longer than one year (such as grand larceny)
- Alien smuggling
- Bribery, counterfeiting, or forgery
- Attempt or conspiracy to commit any aggravated felony
- Terrorist activities
- Any other crimes against public safety
You should also note that even if a criminal court found you "not guilty" of any of the crimes mentioned above, you may, under specific circumstances, still be considered "guilty" under the Immigration and Nationality Act.
For this reason, you should always disclose your full criminal history to your attorney.
Will I have to post a voluntary departure bond?
If the judge grants your request for voluntary departure, you may have to post a voluntary departure bond of at least $500.
Should you fail to post this bond within five days, an alternate order for your removal will go into effect.
However, if you depart within 25 days of this new order going into effect, the court will still consider your departure to be "voluntary."
Despite this fact, it is almost always a better idea to post your bond and depart during the original timeframe.
Where do I post my voluntary departure bond?
You can pay your bond at any of the ERO Bond Acceptance Facilities noted on the ICE website.
As specifically noted in Federal Regulations:
"Before granting voluntary departure, the Immigration Judge shall advise the alien of the specific amount of the bond to be set and the duty to post the bond with the ICE Field Office Director within 5 business days of the Immigration Judge's order granting voluntary departure."
Immigration Regulations, 8 C.F.R. § 1240.26
In this way, you must post your bond with your local ICE Field Office Director within five business days of the date you were granted voluntary departure.
They will return this bond to you when you depart the country.
What happens if I fail to depart?
If you are still in the United States after the date on your voluntary departure order, you may face a number of rather harsh penalties.
First, you will likely face immediate arrest and deportation. In addition, you may also face a civil penalty of between $1,000 and $5,000.
Finally, as is the case for normal deportation, you will not be able to return to the United States for another 10 years.
Should I Apply for Voluntary Departure?
Ultimately, this is a question you should discuss with your immigration lawyer.
In general, voluntary departure is a strategy for mitigating the damage you'll receive from an impending deportation order.
Similarly, you should avoid voluntary departure if you have a valid reason to stay in the United States.
Only an experienced immigration attorney can help you determine the best course of action in your case. For this reason, you should never consider voluntary departure without speaking with an attorney first.
