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Wednesday, June 19, 2024 - 11:28 am

Sometimes Voluntary Departure is the Best Option

Voluntary Departure is the departure of an alien from the United States because of an immigration offense without an order of removal from the immigrSwaray Law Office, LTDation court.  Once an alien is granted the voluntary departure, he gives up all rights to any other available relief and must depart the United States within the time the immigration court has specified.  Under a voluntary departure grant, the alien can depart the United States on his own, without the ten year bar of a removal order, and can legally re-enter the country.  There are four types of voluntary departure. They are pre-hearing voluntary departure, voluntary departure at the beginning of a removal hearing, voluntary departure from the Department of Homeland Security (DHS) during a removal proceeding and voluntary departure from the court at the end of a removal hearing.

An alien who is arrested and detained by an Immigration and Customs Enforcement (ICE) for an immigration offense may ask ICE to grant him voluntary departure even before he appears before the immigration court to answer to the charges against him.  This option makes sense where the alien’s commission of the offense is not questionable, and he also has no available relief to protect him from deportation.

But the alien can wait until the beginning of his removal proceeding to ask for voluntary departure.  This is usually at his Master Calendar hearing in immigration court.  To qualify, the alien must make the request before his first Master Calendar hearing; request no other form of relief; admit his removability; waive his right to appeal all issues; and prove that he has not been convicted of an aggravated felony; and not deportable for national security or public safety reasons.

Sometimes a DHS attorney may agree with the alien’s attorney to grant voluntary departure to the alien, if the alien does not have an aggravated felony record, at any time in the removal proceedings.  But this rarely happens.

The alien can also request voluntary departure at the end of his removal proceedings.  This happens where the alien is not likely to prevail on the removal claims against him, and he does not have a relief that will save him from deportation, and the removal proceedings is about to come to an end.  But the court’s grant of his request is pegged on the following factors:  the alien has been physically present in the United States for one year immediately before the service of the Notice to Appear (NTA) on him; has money to post a bond within five days of the judge’s order; has good moral character in the most recent five years before his voluntary departure request; not an aggravated felon or terrorist; not granted voluntary departure previously; has a valid passport or travel document for inspection and authentication by the United States Government and establishes that he has the financial means to leave the United States at his own expense and intends to leave within the required time.

Voluntary departure, in all cases, is a discretionary grant either by the DHS or the immigration court.  The conditions become tighter the longer the requester waits in the course of the immigration proceedings.  If the alien is granted voluntary departure, and he does not leave within the departure specified time, he will face severe consequences, including ineligibility for several other forms of relief.  The failure to depart turns into a warrant against the non-departing alien.  The relief does not forgive other immigration violations, such as unlawful presence.

The writer of this blog is an immigration attorney with Swaray Law Office, LTD located in Brooklyn Center in Minnesota.  Brooklyn Center is contiguous to Minneapolis, Brooklyn Park, Crystal, Robbinsdale and Maple Grove.  If you are in removal proceedings, and need the service of an attorney, please visit or contact us at or 763-549-0670

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