Written by attorney Kyndra L. Mulder

Voluntary Departure; It has its Benefits and its Consequences.

•What is Voluntary Departure? •Should I Consider Voluntary Departure? •Voluntary Departure Before an Order of Removal. •Voluntary Departure After an Order of Removal. •Re opening my Case After Agreeing to Voluntary Departure. •Failure to Depart as Agreed.

What is Voluntary Departure?

Voluntary departure permits an individual, who is otherwise removable, to depart from the United States at his or her own expense and according to his or her own arrangements within a certain period of time. The court may grant voluntary departure prior to or after a removal order has been entered. Voluntary departure is not available in all cases. Whether a person in eligible will depend on a number of factors individual to his or her circumstances. Before considering voluntary departure it is important to speak with an attorney at the Mulder Law Office. We will determine what defense you have to removal and whether voluntary departure is something you should consider.

Why Consider Voluntary Departure?

Voluntary departure is preferable to a removal order for a number of reasons:

•If an individual is issued a removal order he or she may be barred from reentering the United States for up to ten years and may be subject to civil and criminal penalties if he or she enters without proper authorization. penalties. •If the individual voluntarily departs within the time ordered by the court, she will not be barred from legally reentering in the future. •An individual with a removal order is barred from applying for ten years for cancellation of removal, adjustment of status and other immigration benefits. •A strategy for obtaining your legal status in the United States may require you to petition form outside the United States through consulate processing. Voluntary departure prior to a removal order being issued against you will keep this door open to you. You may then file the necessary petitions to re enter the United States together with any needed Waiver at a U.S. Consulate. For the person who has no other form of relief available, voluntary departure combined with consulate processing and a waiver is a practical means of planning for the future.

Should I take Voluntary Departure before or after a Final Hearing?

This is a strategy issue that you need to discuss with an attorney at the Mulder Law Office. We will sit down with you in person or through telephone or email discuss your specific needs and circumstances.

An individual may apply for voluntary departure either at the initial hearing or at the conclusion of proceedings, provided that the individual meets the necessary requirements.

Voluntary Departure – Before the Conclusion of the Hearing requires the following:

  1. Waives or withdraws all other requests for relief; 2. Concedes that he or she is removable; 3. Waives appeal of all issues; 4. Has not been convicted of an aggravated felony and is not a security risk; and 5. Shows by clear and convincing evidence that he or she intends to depart; and has the financial ability as well as a method to leave the united States.

Provided that the individual meets the foregoing requirements, the Immigration Judge may grant a voluntary departure period of up to 120 days. The Judge may not grant voluntary departure under 8 C.F.R. § 1240.26(b)(E)(ii) beyond 30 days after the Master Calendar (first hearing) at which the case is initially scheduled, except pursuant to a stipulation with the ICE attorney. Voluntary Departure After the Conclusion of the Hearing requires the following:

  1. A showing of physical presence for one year prior to the date the Notice to Appear is issued; 2. Clear and convincing evidence that he or she intends to and has the financial ability and means to depart; 3. The judge may require a bond be posted. The bond is returned when the individual appears in person at the consulate in his or her own country; 4. A showing of good moral character for five years prior to the application; and 5. Presents to the Department of Homeland Security (DHS) a valid passport or other travel document to indicate that he or she will be admitted to his or her country. If the applicant establishes the foregoing requirements, the Immigration Judge may grant voluntary departure for a period of up to 60 days. You must comply with all requirements set by the court or your voluntary departure may be revoked.

Failure to Depart within the Voluntary Departure Period

There are significant penalties for failing to depart under a voluntary departure order. A removal order will automatically be entered against you. You will also be subject to the following penalties:

  1. A civil penalty of not less then $1000.00 and more than $5000.00 and 2. You will be ineligible, for a period of 10 years, to receive cancellation of removal, adjustment of status, registry, voluntary departure, or a change of non immigrant status - you will not be eligible to file a waiver through the U.S. Consulate accept under extreme and unusual circumstances. 3. Should you be detained by law enforcement or ICE and it is discovered that you did not agree to depart as ordered , ICE will place you in detention where you will remain until the government removes you. You will not be entitled to and you may not be entitled to go before an immigration judge before your removal.

When Granted Voluntary Departure Before a Final Order of Removal is Entered Against You:

  1. If you file a motion to reopen or reconsider during the voluntary departure period, the grant of voluntary departure will be automatically terminated and a order of removal will take effect immediately. The penalties for failure to depart voluntarily will apply to you.

  2. There is a civil monetary penalty if you fail to depart within the voluntary departure period. The amount is set at $3000.00

However, there are extreme circumstances where a person is unable to depart as agreed. If you feel that your situation may be such that failure to depart is excusable DO NOT just ignore the court order and remain in the United States. Contact the Mulder Law Office BEFORE your period for departure has expired.

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