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A little-known but highly advisable form of relief is available to non-citizens who are found to be “removable” from the United States. This form of relief is called “voluntary departure”. The advantage of voluntary departure is that in many cases, there is no bar on returning to the United States if the noncitizen is otherwise eligible to return to the United States as an immigrant or nonimmigrant. That is, a noncitizen can return to the United States without formal removal on his or her record. Of course, there is the obvious disadvantage, and that is that the non-citizen must actually and timely depart the United States. Serious consequences ensue if a noncitizen fails to leave the United States: the noncitizen becomes ineligible for future voluntary departure, also ineligible for other forms of relief from removal, and may face penalties. Can cost thousands of dollars.
There are several stages at which a noncitizen can request voluntary departure. First, non-citizens can request it before removal proceedings are initiated. At this stage, the non-citizen request will be forwarded to the District Director of the Department of Homeland Security (“DHS”). Immigration and Customs Enforcement (“ICE”), an agency within DHS, may accept such a request at any of its field offices. Second, the non-citizen may request it after the initiation of removal proceedings, but before the conclusion of the removal proceedings. At this stage, the noncitizen must appear at a Master Calendar Hearing (“MCH”) and explicitly request voluntary departure from the IJ. IJ may grant voluntary departure within 30 days after MCH, or after that time as determined by DHS. Third, the noncitizen may request voluntary departure at the conclusion of removal proceedings. This third stage is more complex than the first two; Because at this stage, the non-citizen must show that he is ready, willing, and able to leave the United States at his own expense, that he has been a good person of moral character for the past five years, is physically present at the notice to appear Was not removable under certain sections of the Immigration and Nationality Act (“INA”) for a period of at least one year immediately prior to service in the United States because certain serious or security-related offenses were committed, was prior to voluntary departure is not permitted, and merits an exercise conducive to prudence. In addition, the noncitizen must show by clear and convincing evidence that he or she has the financial ability to leave the United States and that he or she intends to depart. Steps one and two do not require proving good moral character.
Once you are granted voluntary departure permission and you leave the US, there may be a time limit on when you are legally eligible to return to the US if you stay for more than 180 days but less than a year live in the US illegally and you are granted voluntary departure by DHS (Step 1, above) or you leave on your own, you will be barred from returning to the US for three years. If, with the above facts, you request voluntary departure from IJ, you will not be subject to the three-year bar. On the other hand, if you have been in the US illegally (continuously) for more than a year and you are granted voluntary departure by DHS or IJ, or you leave on your own, you will be barred from returning to the US . ten years. At either the three-year or ten-year bar, there may be a “hardship waiver,” you can request to waive the bar from returning.
This article is for information only and does not constitute legal advice.
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