Voluntary Departure as Option for Undocumented Immigrants

May 10, 2017

By Reuben Seguritan


The aggressive implementation of the immigration laws by the Trump administration has seen a lot of immigration arrests and deportations. This has sent shockwaves throughout the United States, especially to the undocumented immigrants and their families. Undocumented immigrants who are facing deportation have options to deal with the prosecution by the US immigration authorities. One of the options is to depart the United States voluntarily. This option is known as “voluntary departure.”


Under this option there will be no official order of deportation in the immigration record of the undocumented immigrant and he will not be automatically barred from returning to the United States. However, voluntary departure means that the undocumented immigrant is giving up any immigration defenses or relief he may be entitled to. If he wishes to return to the United States, he must do so with a new visa or a green card.


The request for voluntary departure can be made before the start of removal proceedings or at the start of removal proceedings or during removal proceedings or at the conclusion of removal proceedings. Voluntary departure is available to undocumented immigrants who do not qualify for any other immigration relief and who want to return to their home country and avoid costs and court proceedings. However, any request for voluntary departure will not be granted for any removable undocumented immigrant if the grounds for removal are for national security reasons, or for public safety reasons, or if he has been convicted of an aggravated felony or any serious criminal offense or is a terrorist.


Before the start of any court proceedings the undocumented immigrant can ask the Department of Homeland Security (DHS) to be allowed to voluntarily depart the United States. He must ask for this option because the DHS is not required to inform him that this option even exists. If the DHS allows him to voluntarily depart the United States, he will depart within 120 days at his own expense. The DHS may also require him to post a bond, to stay in detention until departure and to depart under certain conditions. However, voluntary departure before immigration proceedings are filed is not available for alien nationals stopped at the US border and prevented from entering the US.


If the undocumented immigrant believes he is entitled to immigration relief such as cancellation of removal, adjustment of status or political asylum, he might be better off presenting his case and defenses in immigration court. The undocumented immigrant would have the opportunity at the start of and during removal proceedings to request for voluntary departure. However, requesting for voluntary departure at these stages is purely discretionary on the immigration judge. The judge will consider factors such as criminal convictions, immigration history and family and community ties in the United States in order to determine whether the undocumented immigrant is entitled to voluntary departure.


At the start of removal proceedings, the undocumented immigrant making the request for voluntary departure must do so before or at the first hearing, make no other immigration relief request, admit that he is removable from the United States, waive the right to appeal all issues and prove that he has not been convicted of an aggravated felony and not deportable on the grounds of national security or for public safety reasons.


During the court proceeding, the undocumented immigrant may ask for voluntary departure from the DHS attorney prosecuting the case. If the DHS attorney agrees, he will submit the motion to terminate the removal proceedings. The DHS will then grant the voluntary departure of the undocumented immigrant.


Lastly, the undocumented immigrant may request for voluntary departure at the end of the removal proceedings when he thinks that the relief prayed for will not be granted. Voluntary departure at this stage requires that the undocumented immigrant must have been physically present in the US for at least one year prior to the service of the Notice to Appear (NTA) sent by the DHS and must show that he can post a bond within 5 days of the judge’s order. He must be of good moral character for at least 5 years before seeking voluntary departure and must not have been granted voluntary departure previously after having been found inadmissible. He must produce a valid passport or travel document and must be able to leave the US at his own expense and within the required time.