Voluntary Departure Sounds Like Mercy. Asked For Alone, It Is Usually a Surrender

A man is arrested after a traffic stop in East Baton Rouge Parish. Within a week he is in a detention center in central Louisiana, appearing by video before an immigration judge, with no attorney. The judge asks whether he wants to fight his case or take voluntary departure. Someone in his housing unit already told him voluntary departure is the good option, the one that keeps his record clean and lets him come back.

He says yes. He is gone in seven weeks.

Three years later his wife, a United States citizen, files a petition for him. At the consulate he learns two things in one appointment. He cannot return for ten years. And he had been eligible for cancellation of removal the whole time he sat in that courtroom.

That outcome is ordinary. Voluntary departure is genuine relief with real value. It is also the relief most often accepted by people who had no idea what they were giving up.

There are two voluntary departures, and they are not the same

The statute is INA 240B, at 8 U.S.C. 1229c. It holds two very different options that most people, and many websites, blend together.

Voluntary departure under INA 240B(a) is requested at or near the beginning, before proceedings conclude. By statute it cannot be valid for a period exceeding 120 days.

Voluntary departure under INA 240B(b) is granted at the conclusion of proceedings, after the judge has heard the case. By statute it cannot be valid for a period exceeding 60 days.

That gap is often the whole fight. Four extra months to sell a truck, close a lease, pull school records, and arrange for children to travel is not small, and a person appearing alone rarely knows the longer option exists.

What the early version costs you before you get it

Under 8 C.F.R. 1240.26(b), pre conclusion voluntary departure comes with conditions that operate as a package. The request must be made before or at the master calendar hearing at which the case is first set for a merits hearing. The person must concede removability, withdraw every other application for relief, and waive appeal of all issues.

Read that again. Withdraw every other application. Waive appeal of all issues.

That is the moment the case ends. Not the day of departure. Whatever asylum claim, cancellation claim, or adjustment through a spouse or parent existed is gone, and there is no appeal, because appeal was the price of the grant.

The version at the end of the case comes with a bond

Post conclusion voluntary departure is structurally different. It is usually requested in the alternative, after other relief has been denied, so it does not require abandoning claims at the outset. But it carries its own machinery.

The statute requires a voluntary departure bond. The regulation sets it at no less than $500, posted with ICE within five business days of the immigration judge’s order.

Miss the bond deadline and the grant vacates. Here is the only good news in this article. A published Board of Immigration Appeals decision from 2006, at 24 I&N Dec. 47, held that someone who never posts the bond never received voluntary departure at all, and so is not subject to the failure to depart penalties under INA 240B(d). Cold comfort, since that person now has a removal order. But almost nobody appearing alone knows to raise it.

The passport requirement stops more cases than people expect

To get post conclusion voluntary departure you must prove by clear and convincing evidence that you have the means and the intention to leave. The regulation says evidence of means includes, in all cases, a passport or other travel document sufficient to assure lawful entry into the destination country, and DHS gets to inspect it and challenge whether it is genuine.

People with expired passports, people whose consulate is slow, and people who never had a passport lose voluntary departure on this requirement alone.

The pre conclusion rule is more forgiving. If the document is not yet available and the person made diligent efforts to get it, the judge may grant the longer period conditioned on producing it within 60 days. Fail, and the grant vacates.

The day after the deadline, you have a removal order

When a judge grants voluntary departure, the judge also enters an alternate order of removal, as 8 C.F.R. 1240.26(d) requires.

Nothing else has to happen. No second hearing, no notice, no letter. When the period expires, that alternate order takes effect on its own. The person granted mercy on Monday has a final removal order on Tuesday.

Then INA 240B(d) turns on. Someone who fails to depart in time faces a civil penalty. The statute sets the range at not less than $1,000 and not more than $5,000, but it is adjusted for inflation, and the figures published by DHS have run substantially higher, roughly $1,992 to $9,970.

The regulation creates a rebuttable presumption that the penalty is $3,000 unless the judge or the Board orders a different amount.

The money is not the worst part. INA 240B(d)(1)(B) makes the person ineligible for ten years for further relief under 8 U.S.C. 1229c, 1229b, 1255, 1258, and 1259. In plain terms: voluntary departure again, cancellation of removal, adjustment of status, change of nonimmigrant status, and registry.

Filing a motion to reopen can detonate the grant

This is where good intentions destroy cases. Someone granted voluntary departure finally finds a lawyer, or new evidence, and files a motion to reopen inside the departure period. It feels responsible.

Under 8 C.F.R. 1240.26, filing a post decision motion to reopen or reconsider during the voluntary departure period automatically terminates the grant, and the alternate order of removal takes effect immediately. The INA 240B(d) penalties do not apply there, which is the concession the rule makes.

The Supreme Court addressed the underlying conflict in Dada v. Mukasey, 554 U.S. 1 (2008), holding that a person must be allowed to withdraw a voluntary departure request before the departure period expires. Keeping voluntary departure and pursuing a motion is a real fork in the road, and the choice has to be made before the clock runs out, not after.

A petition for review also terminates the grant automatically. One narrow path survives: someone granted post conclusion voluntary departure who leaves no later than 30 days after filing the petition, gives DHS evidence of departure, and stays outside the country is not treated as having departed under an order of removal.

The trap almost nobody explains: the ten year bar still attaches

Here is the part that sends people to our office years too late.

Voluntary departure avoids one bar. With no executed removal order, the person is not inadmissible under INA 212(a)(9)(A) for having been removed. That is the real benefit, and it is worth something.

It does not avoid the unlawful presence bars under INA 212(a)(9)(B). Those are triggered by how long you were unlawfully present and by the fact of departure, not by the label on the paperwork.

More than 180 days but less than one year of unlawful presence, followed by voluntary departure before proceedings commenced, triggers a three year bar under INA 212(a)(9)(B)(i)(I).

One year or more triggers a ten year bar under INA 212(a)(9)(B)(i)(II), and that provision does not care how you left. Voluntary departure, removal, walking across on your own, the bar is identical.

Now apply that to the man in detention. By the time a judge offers voluntary departure, proceedings have commenced and he has almost always been unlawfully present well over a year. The three year bar is off the table. The ten year bar is waiting. The judge will set a departure period. The judge will not counsel him about INA 212(a)(9)(B). That is not the judge’s job.

A waiver exists for the spouse or child of a citizen or lawful permanent resident on a showing of extreme hardship, but it is discretionary and never automatic.

What you actually traded away

The bar itself is not the point. The comparison nobody ran is the point.

Ten years of continuous physical presence, good moral character, and exceptional and extremely unusual hardship to a citizen or lawful permanent resident spouse, parent, or child can support cancellation of removal for certain nonpermanent residents, on Form EOIR-42B. Lawful permanent residents have their own cancellation provision. Asylum, withholding of removal, and Convention Against Torture protection stay open to people with real fear claims. Someone who entered lawfully and married a United States citizen may be able to adjust status on Form I-485 inside proceedings. Someone with an approved family petition may have a route through consular processing.

Every one turns on facts: date of entry, manner of entry, criminal history, the qualifying relative’s medical records, country conditions. Voluntary departure requires none of that analysis, which is precisely why it gets accepted so often.

And note the asymmetry. Fight and lose, and you can usually still ask for voluntary departure at the conclusion under INA 240B(b). Take it at the beginning and you have already withdrawn everything and waived appeal. That door swings one way.

 

Talk to Rozas Law Firm before you answer that question

If you or a family member has been offered voluntary departure, do not answer at the podium. Ask for time to consult counsel. Judges routinely grant continuances for that.

Rozas Law Firm handles removal defense, bond hearings, family based immigration, and criminal defense from Baton Rouge, and we appear in the Louisiana immigration courts regularly. We will tell you honestly when voluntary departure is your best available outcome, because sometimes it is. What we will not let you do is trade away cancellation of removal, an asylum claim, or an adjustment case you already qualified for in exchange for a ten year bar nobody described to you.

Call us before the next hearing, not after the departure period runs.