Voluntary Departure: To Take or Not to Take?
Author: New York Immigration lawyer Alena Shautsova
Voluntary departure is a relief from removal during which allows its beneficiary to depart the United States without an order of removal being entered against him/her. Many undocumented immigrants, especially those who happened to be in immigration proceedings for the first time, agree to sign the “VD” order without really understanding the drastic remedies that stood behind for failure to depart.
The maximum amount of time that an immigration judge can give an alien to voluntarily depart the United States is 120 days. This amount is only available at the beginning of proceedings (with very few exceptions). In addition, the granting of that amount of time requires that the alien waive all rights to appeal. If the alien accepts this form of voluntary departure, he or she should plan on no longer living in the United States in no more than 119 days from the date of the order.
If the alien elects to pursue other relief in a hearing on the merits and that relief is denied, the maximum amount of voluntary departure time the immigration judge can give is 60 days. The alien may pursue an appeal of the denial of the other relief and is entitled to remain in the United States during the pendency of that appeal.
The 60 days clock is topped while the matter is on appeal before the Board of Immigration Appeals (BIA). However, it begins to run the day the BIA dismisses the appeal. At that point, if the alien elects to file a petition for review with the U.S. Court of Appeals, he must also file a motion to stay removal. Filing the petition for review vacates the voluntary departure grant and the alien then has a deportation order just as if he had never accepted voluntary departure in the first place.
What happens if a person failed to depart pursuant to order of VD? Well, the VD order automatically becomes an order of removal, plus a person will be bared for 10 years from qualifying for any sort of relief against removal, including adjustment of status, cancellation of removal, or
What if after the person accepted VD he became eligible for other relief from deportation? There is a very limited exception that allows for the motion to reopen be granted without application of consequences of failure to depart. This exception applies only when an attorney or an accredited representative did not inform the person about the VD order up until the time the person violated it, and hence failed t depart. The exception must be used in connection with filing Lozado materials against the party at fault. Matter of Zmijewska, 24 I&N Dec. 87, 93-95 (BIA 2007).
Important: Individuals granted voluntary departure where ten years have passed from the expiration of the departure period should not be barred from applying relief by INA § 240B(d). There is no indication that ten year period of ineligibility for relief only runs once a respondent departs the United States.