While in Deportation/Removal Proceedings
§ 244(e), of the
Immigration and Nationality Act of 1952 ("Act"), Pub.
L. No. 82-414, 66 Stat. 163,
8 U.S.C. § 1254e.
Exclusion: § 236, of the Act, 8 U.S.C. § 1226
Removal: §§ 240B(a), (b), 8 U.S.C. § 1230B(a), (b)
Copyright © 1999 VIKRAM BADRINATH, P.C. · All rights reserved. ·
Generally, any alien who has been placed into Deportation or Removal proceedings before an Immigration Court may request that he be returned to his country of citizenship/nationality (or last residence) instead of being ordered deported or removed from the United States. Although the effect of either order is essentially the same (e.g., the alien is returned to his home country), the legal consequences are vastly different.
An order of voluntary departure results in an administrative order returning the alien to his country of designation (citizenship, nationality, or last residence) instead of a forcible order effectuating his removal or deportation from the United States. If an alien accept voluntary departure, he may return to the United States thereafter and remain eligible for a nonimmigrant or immigrant visa. If, however, an alien is ordered deported or removed from the United States, he may not return for varying periods lasting from one (1) to twenty (20) years. Hence, it is important to understand the difference between voluntary departure and removal.
There are two types of voluntary departure that are available to an alien in removal proceedings.
Section A: If an alien requests this type of voluntary departure in lieu of being subjected to removal proceedings or prior to the completion of removal proceedings, and alien may receive up to one hundred twenty (120) days to depart the United States voluntarily. No specific eligibility requirements such as residency or good moral character need be demonstrated.
Section B: If an alien requests this type of voluntary departure at the conclusion of removal proceedings, then he may recieve a maximum of sixty (60) days to depart the United States voluntarily. Additionally, an alien must demonstrate that: (1) he has been physically present in the United States for one (1) year preceding the service of a Notice to Appear (Form I-862), the charging document used to begin removal proceedings; (2) he has been a person of good moral character for at least five (5) years immediately preceeding the request; (3) the alien has not been convicted of an "aggravated felony" as defined by the immigration laws or there exists a security ground of deportability; (4) he has the financial means to depart and he intends to do so.
Please note that under either option of voluntary
departure, the U.S. INS must witness and confirm the
actual departure from the United States. The U.S. INS may require
an alien to post a voluntary departure bond in
an amount necessary to ensure that the alien will depart, to be
surrendered upon proof that the alien has departed the United
States within the time period allowed. If an alien does
not depart within the time allowed or by an extension given to
him by the District Director of the U.S. INS, then the voluntary
departure order will be disallowed and will automatically become
a removal order. Under the new immigration laws, there
are civil monetary penalties for failing to comply with a
voluntary departure order (not to exceed a fine of $500 per day).
See § 274D of the INA.
For more information about requesting Voluntary Departure before an Immigration Judge, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.