Disregarding an order of voluntary departure and failure to comply with leaving the United States as promised can bring the same penalties as an order of removal and even more consequences.
Voluntary departure allows a foreigner who is fighting deportation in immigration court proceedings to avoid an order of removal by departing the U.S. at personal expense, within a set period. The amount of time granted is generally around 120 days if you request it at the beginning of a master calendar hearing and 60 days when ordered by an immigration judge after an individual merits hearing.
Someone who is ordered removed from the U.S. is escorted out of the country. That is not the case if you agree to voluntary departure: The immigration authorities will not be waiting for you to show up on a certain day, nor will they monitor your departure. Some applicants have regarded this as a free pass to stay in the U.S. There are, however, severe consequences for failing to depart the U.S. under a voluntary departure.
Civil Sanctions for Failure to Leave the U.S. After a Voluntary Departure
Foreigners who do not comply to leave the U.S. in a timely manner as specified in the voluntary departure order become subject to civil sanctions. You might have to pay a penalty fee between $1,000 to $5,000. Note, though there is an exemption from penalties for VAWA self-petitioners or VAWA cancellation of removal applicants if the extreme cruelty or battery was at least one main reason for the overstaying the grant of voluntary departure.
Failure to Voluntarily Depart May Result in a Ten-Year Bar Until Immigration Relief
Another consequence if you fail to depart the U.S. on time has to do with your chances of obtaining future immigration status or any other U.S. government benefits. You could possibly face a direct ten-year bar from:
- Being granted cancellation of removal
- Adjustment of status
- Change of status
- Registry and
- Further voluntary departure
Such law has changed over the years. Foreign nationals who were granted voluntary departure in 1995 or earlier and failed to depart received a direct bar of five years rather than ten. Getting a ten-year bar is probably the most severe penalty to failing to depart under a voluntary departure. For example, if a foreigner was granted voluntary departure in 2018, but failed to depart, married a U.S. citizen in good faith in 2023. Under normal circumstances, that individual would become eligible for a family-based green card. But with that past failure to depart on record, the non-citizen would have to wait another five years before he or she can apply for lawful permanent residence based on that marriage. Even after the ten-year timeframe has elapsed, the person would face more issues because an automatic order of removal was likely also entered. If you are not sure, discuss your situation with an immigration lawyer.
Not Following Through With a Voluntary Departure Can Result in an Immediate Removal Order
Ignoring a voluntary departure can end in an automatic order of removal. This happens without the immigration judge needing to issue a new order and without appearing in court. At this point, you are subject to removal from the U.S without questions asked. One consequence of which is that upon any encounter with immigration authorities, you can be removed from the U.S. without first seeing a judge.
Take note that if you later leave the U.S. after overstaying the voluntary departure, the departure will then be considered a self-removal, meaning that you will be considered to have been deported. Then, you would be subject to the adverse consequences of deportation even though you left on your own. For instance, if you attempted to re-enter the U.S. unlawfully, you could become subject to a permanent bar on admission.
Exceptions To These Strict Consequences for Failing to Depart After a Voluntary Departure
Before 1996, there was an “exceptional circumstances” exception for failing to depart the U.S. within the given time. Exceptional circumstances included serious illness of the foreign national, the death of an immediate relative of the non-citizen and other circumstances beyond your control. However, in 1996, Congress terminated the exceptional circumstances exception for voluntary departure.
The Board of Immigration Appeals (B.I.A.) and courts have, however, acknowledged what is known as the “voluntariness” exception. Particularly, if a non-citizen, through no individual fault, is unaware of the voluntary departure order or is physically unable to depart, that need to be considered a failure to depart. The logic is that the harsh penalties should be reserved for those foreigners who voluntarily fail to leave the country; and not applied in cases where, for example, their legal representative failed to mention the existence of a voluntary departure order until after the deadline for the departure has passed.
Hiring an Immigration Attorney is Important
Strongly take into consideration retaining the services of an experienced immigration lawyer. Your legal spokesperson will be able to help you make your way through deportation proceedings and plan as to whether you should request voluntary departure or some other government benefit. Consult with Gambacorta Law Office by giving us a call at 1-847-786-2599, today!