Voluntary Departure vs. Deportation

A removal proceeding is an action brought by the government to remove an alien, non-citizen from the United States. If you are what's categorized as a removable alien, meaning you are the person who is the object of a removal proceeding, you have two general options: to accept voluntary departure, or an order of removal. Voluntary departure means that you leave the country voluntarily, at your own expense, within a given time period. Removal, formerly deportation, means the government is ordering your removal from the United States after the conclusion of removal proceedings. It is involuntary. Each type of removal has its own advantages and disadvantages. Before you decide which type is best for your situation, consult with an attorney who specializes in immigration law.

Types of Voluntary Departure: Pre-Conclusion & Post-Conclusion

Voluntary departure permits individuals who are otherwise removable to leave the United States at their own expense within a set period of time. There are two types of voluntary departure: pre-conclusion and post-conclusion. You may request to leave the United States before the conclusion of removal proceedings. This is pre-conclusion departure. Aliens who seek pre-conclusion voluntary departure waive all possible forms of relief from removal and promise to depart the country within 120 days. If you are eligible for any form of relief, present or future, you will lose that right by agreeing to pre-conclusion voluntary departure.

Post-conclusion voluntary departure is similar to pre-conclusion in that both require you to leave voluntarily. However, with post-conclusion voluntary departure, you wait until after the removal proceedings have ended, or concluded, to leave. Unlike pre-conclusion voluntary departure, those who request post-conclusion voluntary departure at the end of removal proceedings must pay a $500 bond and have only 60 days to leave. Despite the monetary penalty and shorter deadline, many immigrants believe that leaving voluntarily is better than being forcibly removed from the country. They thus request pre-conclusion or post-conclusion voluntary departure rather than seeking alternate forms of relief, such as asylum, cancellation of removal, or adjustment of status.

Consequences of Failure to Leave

However, failure to leave the country within the 60 to 120 days granted for voluntary departure carries far more severe consequences than those accompanying an involuntary order of removal. In addition to a $5,000 monetary fine, you are also barred for up to ten years from being granted any form of relief. Further, the voluntary departure order becomes a removal order if you fail to post the required voluntary departure bond within 5 days of the order or once the 60 days expires.

Indeed, voluntary departure places you in an even worse position than being ordered removed because it bars you from seeking relief for which you would otherwise qualify. For example, those who fail to timely depart the country become statutorily barred from seeking adjustment of status; even if they become eligible for such relief later. You also begin to accrue unlawful presence once the voluntary departure period expires and are barred from seeking any relief for a period of three or ten years.

Because of these harsh consequences, you may be better off “buying time” and dragging out removal proceedings for as long as possible. It is almost always more prudent to explore your alternate options for relief and filing those applications rather than requesting voluntary departure during removal proceedings. For example, in the time it takes to adjudicate an asylum application, you can obtain an employment authorization card and work in the United States. If you later become eligible for adjustment of status, you still have 90 days from the final order of removal to file a motion to reopen.