LEGAL GUIDE
Written by attorney William Robinson Heroy | Jan 1, 2013
By William Robinson Heroy
Jan 1, 2013
With few exceptions, voluntary departure provides little benefit to an immigrant
Overview
Pre-conclusion voluntary departure is pushed hard by most immigration judges (and unfortunately many immigration attorneys) as some great benefit to the immigrant. Because most individuals in immigration court are not eligible for adjustment of status, a grant of voluntary departure does little good(aside from the exceptions listed below). Once that individual accepts VD, he finds himself back in his home country without any manner to come back to the US, and he has lost any chance to fight his case and his appeal rights. Additionally, he will continue to be subject to inadmissibility based on his illegal presence in the United States, and thus ineligible for a visa to legally re-enter.
Because most immigrants have minimal knowledge of the immigration courts, they frequently accept this 'benefit' when it is not in their best interest, and sometime they come out believing that they have obtained some great accomplishment. They are incorrect.Alternatives and Consequences
Instead, if an alien has some chance to obtain an immigration benefit, he is going to be better off fighting his case before the immigration court. Even if that does not work out, he can likely still receive voluntary departure if he loses the case, plus he will have the option to appeal the judge's decision to the Board of Immigration Appeals and the circuit courts. During the appeal, he can seek an automatic stay of removal where ICE cannot deport him during the course of the appeal.Alternatives and Consequences
The threat of criminal prosecution for reentry is frequently exaggerated. Even if the individual is planning on returning illegally to the United States, voluntary departure is still not a particularly great benefit over an order of deportation. Illegal reentry prosecutions for individuals who have orders of removal and no major criminal history are infrequent, and generally result in minimal sentences of a few months or less. Those individuals with serious criminal histories would not have been eligible for voluntary departure, so this discussion is irrelevant to them.
This threat of prosecution should generally not be sufficient for one to give up on an avenue for relief and accept voluntary departure.The Exception
There are individuals who are eligible or will soon be eligible for consular processing based on family-based petitions who can benefit from voluntary departure. However, unless they were unlawfully present less than six months, or were under 18 years old, they will still require a waiver of inadmissibility to reenter the United States. These waivers require a showing of hardship and other factors. If the individual does not have a relative who has filed a visa petition for him, the individual would remain inadmissible and not be eligible for a waiver of inadmissibility even if they were eligible for some sort of visa.The Decision to Hire an Attorney
If an individual has no options or wants to take voluntary departure, there is generally no need for him to hire an immigration attorney because it will most likely be offered by the court with or without an attorney.
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