Voluntary Departure

In the event that it appears that the alien does not have any relief available that would permit him to remain in the United States, Baurkot & Baurkot still works to avoid an order of removal by applying for voluntary departure either prior to or at the conclusion of proceedings.  An alien should not apply for voluntary departure unless he intends to depart since aside from the order of voluntary departure becoming an order of removal, he is subject to sanctions including the unavailability of relief for ten years and civil penalties of not less than $1,000.00 and not more than $5,000.00.

Voluntary departure is discretionary and “an immigration judge has broader authority to grant voluntary departure in discretion under section 240B(a) than under section 240B(b)”.

Voluntary Departure Prior to Completion of Proceedings

To be eligible for voluntary departure the maximum period of 120 days, the alien must not have been convicted of an aggravated felony and not be deportable under the security and related provisions of 237(a)(4).

The alien must request voluntary departure prior to or at the master calendar at which the case is initially set for a merits hearing.

Since neither the INA nor the regulations define “master calendar hearing” for the purposes of section 240B, the Board of Immigration Appeals (hereinafter “BIA” or “Board”) interpreted it to be a “preliminary state of the proceedings at which, even though little or no testimony is taken, the Immigration Judge has great flexibility to identify issues, make preliminary determinations of possible eligibility for relied, resolve uncontested matters and schedule further hearings.”

8 CFR 1240.26(b) also requires that the alien make no additional request for relief (or is such requests have been made, such requests are withdrawn prior to any grant of voluntary departure), concedes removability and waives appeal of all issues.

Arriving aliens are not eligible for prehearing voluntary departure under section 240B(a)(4).  However, the DHS may request the Immigration Judge to terminate and grant 120 days voluntary departure.  INA section 235(a)(4) also permits an alien to request withdrawal of his application for admission.

Any time prior to the completion of proceedings the parties may stipulate to 120 days voluntary departure.

The immigration judge may impose certain conditions as he may deem reasonable to ensure the timely departure of the alien including the posting of a bond and the presentation of the alien’s travel document to DHS.

Since there are monetary penalties as well as bars to relief for not departing in conformance with the order of the Immigration Judge, an alien and his counsel is well-advised to consider whether or not it is wise to apply for voluntary departure, if the alien is uncertain whether he will want to depart in a timely fashion or at all and whether or not he may be eligible for some other type of relief at a later date.

Voluntary Departure at the Conclusion of Removal Proceedings

At the conclusion of removal proceedings the Immigration Judge may grant voluntary departure for a period not to exceed sixty days.

The alien must be physically present in the United States for at least one year preceding the date of service of the Notice to Appear.  An arriving alien can apply for voluntary departure at the conclusion of proceedings if otherwise eligible.  He must be a person of good moral character and have been such for a period of five years immediately preceding the application of voluntary departure.  As with voluntary departure applications prior to the conclusion of removal proceedings, the alien cannot have been convicted of an aggravated felony nor be deportable on security related grounds.

Finally, the alien must establish clear and convincing evidence that he has the means to depart the United States and the intention to do so.  He must post bond within five days.  It must be “in an amount necessary to ensure that the alien will depart, but in no case less than $500.00.”  The Immigration Judge must advise the alien of the conditions related to the posting of the voluntary departure bond, including the amount, the effect of filing an appeal with the requirement of submitting proof of posting of the bond to the BIA, and the effect of filing a motion to reopen or reconsider.

Call us if you are facing removal proceedings. Call (484) 544-0022 for a free, confidential consultation.