Written by attorney Jeffrey Norman Brauwerman

Relief in Removal Hearings: Part III: 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 for 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 or related grounds.

Finally, the alien must establish by clear and convincing evidence that he has the means to depart the United States and the intention to do so. He must post a 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." 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. Under the current regulations as amended on January 20, 2009, if the alien fails to post the bond within the time required he must still depart the United States during the time allowed in the voluntary departure order. He is also not exempted from the consequences for failure to depart during the period allowed. If the alien had waived appeal of the Immigration Judge's decision, his failure to post the bond within the period allowed means that the alternate order of removal takes effect immediately except that an alien granted voluntary departure under 8 CFR 1240.26(c) will not be deemed to have departed under an order of removal if the alien: (i) departs the United States no later than 25 days after the failure to post bond; (ii) provides to DHS such evidence of his or her departure as the ICE field Office Director may require; and (iii) provides evidence DHS deems sufficient that he or she remains outside of the United States. In the event that the alien files an appeal with the Board of Immigration Appeals he must submit sufficient proof of posting the bond to the Board within 30 days of filing the appeal. For those aliens granted voluntary departure on or after January 20, 2009, the filing of a motion to reopen or reconsider during the time allowed for voluntary departure automatically terminates voluntary departure and therefore does not toll, stay or extend the period for voluntary departure. The penalties for failure to depart voluntarily under INA 240B(d) shall not apply.

For those aliens who accepted voluntary departure before January 20, 2009 the regulations do not apply and their cases are governed by Matter of Diaz-Ruacho, 24 I&N Dec.(BIA 2006). An Immigration Judge or the Board may reinstate voluntary departure in reopened proceedings for a purpose other than solely making an application for voluntary departure but the total time period cannot exceed the 60 or 120 day statutory and regulatory period. If, prior to departing, the alien files any judicial challenge to the final order, voluntary departure shall terminate upon the filing and the alternate order of removal shall immediately take effect. However, if the alien departs the U.S. no later than 30 days following the filing of the judicial challenge, he will not be deemed to have departed under a removal order if he provides evidence satisfactory to ICE of his departure and provides evidence that he remains outside the U.S. If the alien remains in the U.S. to pursue the judicial challenge, he is not subject to the penalties for violating a voluntary departure order since voluntary departure terminated at the time of filing.

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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