Can A Detained Immigrant Request Voluntary Departure To Avoid Deportation?

Voluntary departure allows an immigrant to leave the U.S. of their own accord, typically in place of deportation. It provides the individual with certain benefits, such as avoiding a formal removal order and possible future immigration consequences, but it also carries specific risks and conditions that must be carefully considered.

Steps and Considerations for Requesting Voluntary Departure

Eligibility for Voluntary Departure

To request voluntary departure, the immigrant must meet certain criteria. They must:

• Not have a criminal conviction related to immigration laws.
• Be in detention or facing removal proceedings.
• Demonstrate that they will depart the U.S. within a specified period, typically 60 or 120 days.
• Agree to leave the U.S. at their own expense and not re-enter without proper authorization.

Benefits of Voluntary Departure

Avoiding Deportation Records

One of the key benefits of voluntary departure is that it avoids a formal deportation order, which could impact the immigrant's ability to return to the U.S. in the future. Deportation can result in a long-term ban (often 5 or 10 years) from re-entering the U.S.

Shorter Bar to Reentry

Voluntary departure generally carries a shorter bar to reentry than formal deportation. This means that an immigrant who departs voluntarily may be able to apply for re-entry to the U.S. more quickly, if eligible, compared to someone who has been deported.

Potential to Reapply for Immigration Benefits

Voluntary departure may allow individuals to apply for immigration benefits, such as family-based visas or employment-based visas, after leaving the U.S.

Risks of Voluntary Departure

Waiver of Right to Appeal

When requesting voluntary departure, an immigrant may waive their right to appeal the removal decision. This can be a significant risk, especially if new evidence or changes in circumstances might support their case.

Bar to Reentry

If an immigrant fails to leave within the specified period or attempts to re-enter the U.S. unlawfully, they could face serious consequences, including a lengthy bar from reentering the U.S.

Loss of Status in the U.S.

Voluntary departure may not be an option if the individual has already been convicted of serious criminal offenses, as they may be deemed ineligible for this form of relief.

Requesting Voluntary Departure

Immigrants in detention can request voluntary departure from the immigration court or the U.S. Citizenship and Immigration Services (USCIS). It is often recommended to have legal counsel to guide this process to ensure that all eligibility requirements are met and that it is the right choice for the individual’s immigration goals.

Conditions of Departure

If voluntary departure is granted, the immigrant must comply with the court's order, which may include:

• Departing the U.S. within a set time frame (often 60 to 120 days).
• Covering the costs of departure themselves (e.g., buying a plane ticket).
• Not re-entering the U.S. unlawfully within the specified time frame.

Legal Actions and Protections

Right to Request Voluntary Departure

Immigrants have the right to request voluntary departure in immigration court. If they qualify, this option can allow them to avoid deportation and the more severe consequences of a removal order.

Attorney Assistance

An immigration attorney can help assess whether voluntary departure is the best option for a detained immigrant and can assist in the filing process to ensure that they meet all the requirements.

Consequences for Non-Compliance

Failure to depart voluntarily as agreed may lead to severe penalties, including being barred from re-entering the U.S. for many years or being subject to more severe removal proceedings.

Example

A Mexican immigrant in detention, who has no criminal record and has been in the U.S. for several years, requests voluntary departure from the immigration court. They are granted the option to leave the U.S. within 60 days. By choosing voluntary departure, the immigrant avoids a formal deportation order, which could have resulted in a 10-year bar from re-entering the U.S. After departing voluntarily, the individual may seek to return to the U.S. legally in the future through family-based immigration processes.