Voluntary Departure from the United States

What if I leave the United States voluntarily when I receive the Notice to Appear?

If someone receives a notice to appear then leaves the U.S., the system may not know that the alien has voluntarily left the United States. What they do know is that you didn’t appear at your hearing. When that occurs, the Judge orders you removed “in absentia.” This is never a good idea. Reopening a

You may also ask that the IJ grant you “voluntary departure.” A voluntary departure is a Judge’s order, and most of time it is preferable to a removal order because when you are ordered removed the burden of coming back is higher.

If you are granted voluntary departure and you do leave the United States within the time granted by the IJ, you don’t have that removal barrier sometimes. This means you may not have to file an I-212. This is a very important point because you haven’t been “deported”.

Voluntary departure is a form of defense. If you are in front of the immigration judge and you really don’t have any mechanisms to apply, you don’t have CAT, you don’t have an asylum application, perhaps at that moment you don’t have a viable spousal case or family-based case to apply for a residency. If you don’t have that, sometimes the best strategy that an immigration attorney will tell you is, “Let’s get you voluntary departure. You have to leave the U.S., but while you are gone, we will be able to work on all these other mechanisms. We can file the I-130 petition to get you back into the U.S. but we don’t have to fight this waiver application process. That’s one way under the voluntary departure.

But, in the instance that the person just takes off, and he’s ordered removed in absentia, he has another higher burden. It doesn’t make sense for a person to just leave the U.S. if there’s a chance they may be removed in absentia, because no matter what, even though he left without attending a court hearing, the judge is still going to have that order, and you are still going to file that I-212, or you are going to fight that in absentia order.

How do I notify the Court that I’m leaving voluntarily?

Generally, there is no set form for this request. A person could file a motion where he or she is essentially asking the judge for prehearing voluntary departure. If you’re granted prehearing voluntary departure, you have to pay a nominal fee, and then, you are given a set amount of time to leave the U.S. Then you can get your “bond” fee back, and you can actually turn around and come back to the United States if you can prove that you’re eligible for an immigrant or nonimmigrant visa.

Two types of Voluntary Departure

There are two types of voluntary departure: The prehearing voluntary departure because you have voluntarily said “I’ll take myself out of the system. Let me leave on my own terms.” And, then, there is post-hearing voluntary departure where the burden gets a little higher. Penalties can start to accrue at a higher rate if you violate the voluntary departure when it is post-hearing.

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