Written by attorney Jeffrey Norman Brauwerman

Relief in Removal Hearings: Part II: Voluntary Departure Prior to Completion of Proceedings

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 stage 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 relief, resolve uncontested matters and schedule further hearings." 8 CFR 1240.26(b) also requires that the alien make no additional requests for relief (or if such requests have been made, such requests are withdrawn prior to any grant of voluntary departure ), concedes removability and waives appeal of all issues.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.

Additional resources provided by the author

Jeffrey N. Brauwerman, Former U.S. Immigration Judge, Brauwerman Law Firm, P.A., 137 Madeira Avenue Coral Gables, FL 33134,, 305.758.1234, [email protected], Listed: Best Lawyers in America, Board Certified: Immigration and Nationality Law

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