You might have an opportunity to defend yourself and argue that you should not be deported if you are facing deportation (removal) from the United States, either prior to or while in immigration court proceedings. If it does not work out in your favor you might be able to ask the immigration judge for the option to leave the country on your own accord, without receiving an order of deportation on your immigration record. This type of request is known as a “voluntary departure.”
The key to understand about your eligibility for voluntary departure depends on when you make the request:
- Before the beginning of removal proceedings (a hearing in immigration court)
- During removal proceedings or
- At the conclusion of removal proceedings
Would I Benefit If I Agreed to a Voluntary Departure
One of the benefits to agreeing to a voluntary departure is that even though you must leave the U.S. you probably will not automatically be barred from legally returning to the U.S. at a later date. Of course, you would need to qualify and apply for a new visa or green card to be able to travel to the U.S. If that were to happen, you will not have a time-bar on your immigration record from the previous deportation order. Talk to an immigration attorney about having a better understanding on a voluntary departure.
Petitioning for a Voluntary Departure Pre-Hearing
Before you even appear in front of an immigration judge, you may need to ask the Department of Homeland Security (DHS) to grant you voluntary departure. Most foreigners make this type of request after having been arrested by U.S. Immigration officers and perhaps put into an immigration detention facility. DHS is not obligated to ask you whether you want voluntary departure. So, if this option makes sense for you, it is better for you to petition voluntary departure from an immigration officer right away.
U.S. immigration law does not set out many eligibility requirements for voluntary departure that comes directly from DHS. It appears that the main objective is for the U.S. government to work out a plan for your departure. You would be expected to depart the U.S at your expense, and be given up to 120 days to leave the country. The DHS might demand that you file a bond, to stay in detention until departure and to depart under certain conditions.
Pre-hearings for voluntary departure are not available to a non-citizen who is arrested at the U.S. border. Additionally, foreigners who have a criminal record such as an aggravated felony or are involved in terrorist activities are not eligible for a pre-hearing (or any) voluntary departure. When asking for voluntary departure you relinquish your right to apply for immigration relief in court. Accepting these terms may be beneficial for foreign nationals who do not qualify for any relief, who want to return to their home country immediately, and who want to avoid time-consuming and costly court proceedings.
In contrast, if you have a convincing argument to deportation, or believe that you might qualify for immigration relief, such as:
- Asylum,
- Cancellation of removal or
- Adjustment of Status
You might be better off waiting until you can see an immigration judge to present your full case. At that time, you will have additional options to ask for voluntary departure.
Asking for Voluntary Departure at the Beginning of a Removal Hearing
Request for a voluntary departure at the start of an immigration court removal proceedings; that is, at your master calendar hearing. Similarly, when requesting voluntary departure from DHS before going to court, pursuing voluntary departure at this stage means that you permanently give up the right to apply for any other form immigration relief. To be able to qualify for voluntary departure at the start of a removal hearing, you are required to:
- Make the request before or at the first master calendar hearing
- Petition for no other form of relief except voluntary departure
- Recognize that you are removable from the country
- Waive the right to appeal all issues and
- Demonstrate that you have not been convicted of an aggravated felony and are not deportable for national security or public safety reasons
Such a decision of whether you are deserving of a voluntary departure is in the hands of the immigration judge. The IJ may consider factors such as your criminal, immigration and family history along with family and community ties in the U.S. Have an immigration law representative help you get familiarized with the process of a voluntary departure.
Get Legal Representation
If you do not have an immigration lawyer representing, you by the time you start your removal hearing it is time you consult with one. An immigration attorney can help you better understand whether you are eligible for some temporary or permanent benefit to remain in the U.S. With that in mind, you will then decide whether to go forward with further immigration court hearing or to simply request for a voluntary departure in order to leave the U.S. Feel free to contact Gambacorta Law Office at 1-847-786-2599 to schedule your appointment.