Voluntary Departure
Hi, Arain:
You've asked a very good question. As always, there is a mix of strategy and law here that is tricky, so please consult an experienced immigration attorney who is active in their local AILA chapter before you make a final decision.
I can't give you legal advice since I don't know your exact situation. That said, I can tell you the basics of voluntary departure so that you and your attorney can make a good, informed decision that is best for you.
When should somebody should take voluntary departure?
Generally, there are 3 kinds of voluntary departure: "pre-commencement," "pre-completion," or "post-completion." Pre-commencement is granted before the person enters removal (also known as "deportation") proceedings, generally by the Department of Homeland security. I very seldom see this.
Pre-completion voluntary departure is very common. This is granted generally once the person is in removal proceedings, at a Master Calendar hearing. An immigrant can receive a maximum of 120 days, and only aggravated felons and a few security classes are barred from receiving this.
Post-completion: this is common as well, often as an "alternative" relief in addition to asylum. One can only get a maximum of 60 days. Plus, a bond of at least $500 must be posted and the immigrant must demonstrate to the judge "clearly and convincingly" that they have the means and intent to depart hte United States, and that they have "good moral character."
What is the advantage of taking Voluntary Departure?
The advantage of taking voluntary departure is leaving without the stain of a deportation on one's record, and/or trying to avoid the consequences of the 3 or 10 year bar for unlawful presence.
Basically, an immigrant who really want to leave within 120 days, has no defense to removal, and does not have any eligibility to another form of relief could gain benefit from voluntary departure.
Another group who could potentially benefit would be persons who have a means of re-entering and need to avoid unlawful presence. Indeed, a "loophole" in the Immigration and Nationality Act allows persons who overstayed between 180 and 365 days to avoid the 3 year bar if they are put into proceedings during this window and then voluntarily depart (thank you, Sen. Spencer Abraham (R-MI), who inserted this language!).
Is there ever a time when it is a bad thing and one should just take a deportation order?
If a person doesn't intend to leave, has some defense to removal, or has eligibility for another form of relief, voluntary departure is usually a bad option. Unlawful presence is very important to calculate, and this bar (3 years for between 180 and 365 days without permission in USA, 10 years for more than 365 days) ONLY kicks in once the person DEPARTS the United States. If youare already subject to the 3 or 10 year bar, it may not make much of a difference if you voluntarily depart or are deported. Again - you really need to discuss this with counsel.
I hope this has been of assistance. As always, you can visit our website and learn more about our firm from the banner above. We appreciate your business. You can also email me any follow-up questions you have from the website.
Kind regards,
W. John Yahya Vandenberg
Hogan & Vandenberg LLC
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