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Voluntary departure permits an individual, who is otherwise removable, to depart from the country at her own expense within a designated amount of time in order to avoid a final order of removal. 1
However, voluntary departure is not available in all cases. 2
Voluntary departure is preferable to a removal order for a number of reasons. If an individual is issued a removal order she may be barred from reentering the United States for up to ten years and may be subject to civil and criminal penalties if she enters without proper authorization. If the individual voluntarily departs within the time ordered by the court, she will not be barred from legally reentering in the future. 3
In addition, an individual with a removal order is barred from applying for ten years for cancellation of removal, adjustment of status and other immigration benefits. An individual may apply for voluntary departure either prior to the Master Calendar hearing or at the conclusion of proceedings, provided that the individual meets the necessary requirements. See
Sections #8.1 and #8.2 below. There are significant penalties for failing to depart under a voluntary departure order, however. If the attorney determines from discussions with the applicant that under no circumstances other than physical removal by the U.S. government does she plan to leave the United States, the attorney should not necessarily automatically seek voluntary departure. 8.1 Voluntary Departure – Before the Conclusion of the Hearing
If the application for voluntary departure is prior to, or at the Master Calendar hearing, the individual must show that he:
- Waives or withdraws all other requests for relief;
- Concedes removability;
- Waives appeal of all issues;
- Has not been convicted of an aggravated felony and is not a security risk; and
- Shows clear and convincing evidence that he intends and has the financial ability to depart.
If the individual is able to meet these requirements, then the Immigration Judge may grant a voluntary departure period of up to 120 days at the time of the Master Calendar hearing. 4
The Judge may not grant voluntary departure under 8 C.F.R. § 1240.26(b)(E)(ii) beyond 30 days after the Master Calendar at which the case is initially scheduled, except pursuant to a stipulation. 8.2 Voluntary Departure – After the Conclusion of the Hearing
An individual may also apply for voluntary departure after the conclusion of proceedings, provided that the individual meets the following requirements:
- Shows physical presence for one year prior to the date the Notice to Appear is issued;
- Shows clear and convincing evidence that she intends and has the financial ability to depart;
- Pays a bond (of at least $500) if the Judge so requires;
- Shows good moral character for five years prior to the application; and
- Presents to the DHS a valid passport or other travel document sufficient to show lawful entry into her country, unless such document is already in the possession of the DHS or is not needed in order to return to her country.
If the applicant establishes these requirements, the Immigration Judge may grant voluntary departure for a period of up to 60 days.