Frequently, a deportation order from the United States results in a bar that would prohibit a foreign national from returning to the US for five years, ten years, or more. However, a foreign national who has been granted voluntary departure is considered to have not been deported and would not be subject to the bar to reentry.
There are certain advantages to voluntary departure as a form of removal relief. It avoids an order of deportation being placed on a foreign national’s record. The bars resulting from removal to reentry into the United States do not apply. An unlawful entry following a voluntary departure does not result in a criminal penalty, unlike unlawful reentry following a deportation order.
It also has some disadvantages as well. In order to obtain a grant of voluntary departure, the right to an appeal is waived, the time available to file a motion to reopen can be reduced from 90 to 60 days or less, and serious penalties can result from failure to timely depart the US by the date promised.
There are three types of voluntary departure:
Prehearing voluntary departure is a discretionary form of relief that the immigration judge may grant when a foreign national meets all of the following:
- The request is made before or during the master calendar hearing;
- No other form of relief was requested;
- Removability was conceded;
- The right to appeal was waived;
- The foreign national does not have an aggravated felony conviction.
Voluntary departure by stipulation is available before the final hearing is completed if agreed to by the Department of Homeland Security.
Post-conclusion voluntary departure is available concluding the removal hearing when a foreign national meets the following:
- Was in the United States for at least a year before being served a Notice to Appear;
- Good moral character must be established for five years prior to the application;
- Is not removable due to an aggravated felony or terrorism;
- Intention and ability to leave the US at own expense must be established by clear and convincing evidence;
- Ability to post bond within five days of the order in the amount determined by the immigration judge must be established.
When deciding which type of voluntary departure should be pursued, it is important to consider that prehearing voluntary departure is much easier to get than post-conclusion voluntary departure because of the different levels of proof required to establish criteria for each. On the other hand, post-conclusion voluntary departure allows you to see the outcome of the removal hearing.