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.
