Voluntary Departure

Voluntary departure is a limited form of relief. Some call it the relief of last resort. It does not provide any permanent status in the U.S. Neither does it allow the individual to remain in the U.S. for an extended period of time.


Benefits of Voluntary Departure

Voluntary departure provides a short period of time (up to 120 days) for a removable individual to get his/her affairs in order before departing the U.S. Although departure is at the individual’s own expense, s/he avoids deportation at the convenience of the government. Accordingly, the major benefits of voluntary departure are:

  • The freedom to leave the U.S. under your own power on a day of your choosing (provided that day falls within the allowable time period);
  • The beneficiary of voluntary departure keeps his/her record clean of a removal order.


Requirements – Pre-Hearing Voluntary Departure

Individuals can apply for voluntary departure at the outset of removal proceedings. It is much easier to meet the requirements for pre-hearing voluntary departure than at the conclusion of proceedings. Individuals who apply for voluntary departure at the outset of proceedings are also eligible for a voluntary departure period of 120 days, as opposed to the maximum of 60 days that can be granted at the conclusion of proceedings.

To be eligible for pre-hearing voluntary departure, individuals must merely show that they are not deportable on terrorist grounds or as someone convicted of an aggravated felony. Immigration Judges have discretion when considering requests for pre-hearing voluntary departure and, therefore, may request additional evidence of good moral character or other information in support of such a request.


Requirements – Voluntary Departure at the Conclusion of Removal Proceedings

To be eligible for voluntary departure at the conclusion of removal proceedings, individuals must meet the following requirements:

  1. Physical presence in the U.S. for a period of at least one year immediately preceding the date that the respondent was placed in removal proceedings;
  2. The respondent is, and has been, a person of good moral character for at least 5 years immediately preceding his/her application for voluntary departure;
  3. The respondent is not deportable as an aggravated felon or terrorist; and
  4. The respondent has established by clear and convincing evidence that the alien has the means to depart the U.S. and intends to do so.

Individuals are NOT eligible for voluntary departure if they have been previously permitted to voluntarily depart after having been found inadmissible as an “alien present in the U.S. without admission or parole.”


Classes of Deportable Aliens

There are several grounds of deportation, which somewhat mirror the grounds of inadmissibility. There are, however, significant differences.

There are six (6) classes of deportable aliens listed in the INA, each with its own subset of grounds of deportation:

  • Inadmissible at the time of entry or of adjustment of status or violates status;
  • Criminal offenses;
  • Failure to register and falsification of documents;
  • Security and related grounds;
  • Public charge; and
  • Unlawful voters.

Within these classes can be found the most common grounds of deportation, including:

  • Present in violation of law: Any individual who is present in the U.S. whose non-immigrant visa has been revoked is deportable.
  • Non-immigrant status violators: Any individual who was admitted to the U.S. as a nonimmigrant and who has failed to maintain the non-immigrant status in which s/he was admitted or to which it was changed, or to comply with the conditions of any such status, is deportable.
  • Crimes of moral turpitude & aggravated felonies: There are key difference between the criminal grounds of inadmissibility and deportability. In order to be rendered deportable, an individual must be convicted of a crime involving moral turpitude (“CIMT”) within five (5) years after the date of admission AND must be convicted of a crime for which a sentence of one year or longer may be imposed. Additionally, an individual who has at any time after admission been convicted of two (2) or more CIMTs is deportable.

While any foreign national who is convicted of an aggravated felony is deportable, an aggravated felony conviction is NOT a ground of inadmissibility.

  • Controlled substances. Any individual who at any time after admission has been convicted of a violation of a law relating to a controlled substance is deportable (except for a single offense involving possession for one’s own use of 30 grams or less of marijuana).