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Voluntary Departure; What you need to know.

Voluntary Departure literally means and implies what it says. It involves permitting a person who is otherwise removable the privilege of leaving or departing on his/her own. A subtle point worth mentioning is that voluntary departure permits a person to depart on his/her own to any country that s/he can legally depart to.

Many people do not realize it but the relief of voluntary departure is not available to every alien. For example the relief is generally not available to someone who has been convicted of an aggravated felony. (Remember that aggravated felony has a much narrower definition in immigration law than in criminal law). Other restrictions and conditions exist regarding voluntary departure depending on the stage at which the relief is being considered.

Advantages of Voluntary Departure;
1. For the government, voluntary departure saves time, resources and money. Time and resources that may be spent on a removal proceeding may be saved depending on the stage when the voluntary departure is granted. Also the person bears the financial cost of the departure.

2. For the alien;

  • Volunatry departure means that s/he avoids any negative stigma that may be attached to a removal
  • S/he does have some time to wind up his/her affairs and put his/her house in order before departure
  • The grant of voluntary departure also means that s/he would not be subject to the admissibility bar which a person ordered removed would otherwise be subject to (generally 10 years) (statutory waiver available but grant is discretionary)
  • Voluntary departure is also beneficial to a person who has accrued some period of unlawful presence past 180 days but less than 1 year because such a person if granted voluntary departure after the commencement of proceedings gets to avoid the 3 year bar to admissibility.

Voluntary Departure; Any Downsides?

  • When a person is granted voluntary departure, it is usually for a fixed period. Failure to depart within the time granted can have severe consequences. The most severe of those consequences is that such a person becomes ineligible for 10 years to receive any further relief such as cancellation of removal, adjustment of status, change of status, registry, or voluntary departure.
  • Additionally a person who overstays the voluntary departure period is also subject to a monetary penalty of at least $1000 and not more than $5000.
  • The situations when the above severe consequences may not apply are not many. In some situations they may not apply to a VAWA self petitioner/applicant. Also they may not apply if the voluntary departure period is terminated by the filing of a motion to reopen or motion to reconsider, or by the filing of a petition for review during the voluntary departure period. Also where the failure to depart was not voluntary as provided by the statute, then the consequences may not apply.
  • Where a person would be subject to the 10 year unlawful presence bar, voluntary departure may also be of little practical benefit.

If you are considering the relief of voluntary departure, it is a good idea to fully discuss it with your immigration attorney in light of your own particular circumstances.

In Absentia Removal Order

When a person receives proper notice of a removal hearing or proceedings against her, and fails, refuses or neglects to attend, such a person would in all likelihood be ordered removed in absentia.

Where an in absentia order of removal is entered against someone, it carries some adverse immigration consequences over and beyond a regular order of removal.

Usually, whereas one can appeal against an order of removal, there is no right of appeal against an in absentia order of removal. One may only file a motion to reopen to rescind such an order under certain circumstances.

Also where such failure to appear was subsequent to one receiving the oral notices called for under the law, such person is in addition to having the in absentia order entered against them, also barred for 10 years from eligibility for many discretionary reliefs such as cancellation, and adjustment of status.

MOTION TO REOPEN TO RESCIND AN IN ABSENTIA ORDER[1]

The law provides limited circumstances under which one may apply to have an in absentia order of removal rescinded. There are two main circumstances:

  • Where the failure to appear was because of exceptional circumstances and the motion to reopen is filed within 180 days after issuance of the in absentia order of removal. Exceptional circumstances in this situation refer to battery or extreme cruelty to the person, their child or their parent. It also includes the person’s serious illness, or the death of a spouse, child or parent. There may be other situations that Courts have held amount to exceptional circumstances and one must consult an Immigration Attorney to look at her particular set of circumstances.

Whatever one does under this reason must be done within 180 days, unless in particular situations where the Courts may apply equitable tolling. Even then, diligence must be shown. In the 11th Circuit, there may be no tolling.

  • One can apply to have such order rescinded at any time, if she can be show that she did not receive notice in accordance with law, or because she was in federal or state custody and the failure to appear was not her fault.

The filing of such motion triggers an automatic stay of removal pending  conclusion of the motion by the Immigration Court.

Lastly, in the context of asylum,witholding and/or CAT, an in absentia order of removal may be rescinded/reopened based on changed circumstances arising consequent to changed country conditions in the country to which removal has been ordered, where evidence of such is material, and was unavailable, and could not be discovered or presented at the previous proceeding.



[1] Discusses only Removal Proceedings and Not Deportation or Exclusion Proceedings.

Extension of TPS for El Salvador

Temporary Protected Status has been extended for nationals of El Salvador or those without nationality who last habitually resided in El Salvador from the current expiration date of September 9 2010 to March 9 2012. There is also an automatic extension of  Employment Authorization Documentation for El Salvadorian TPS beneficiaries. Read the details in the Federal Registerhttp://www.justice.gov/eoir/vll/fedreg/2010_2011/fr09jul10.pdf