Prehearing Voluntary Departure by DHS
DHS has the authority to grant voluntary departure (VD), plus up to 120 days of extension, to persons who agree to depart the U.S. at their own expense instead of being subject to proceedings. Conditions, such as the posting of a bond may be set. Persons who are stopped at the border are not eligible for prehearing VD, but DHS may allow such persons to withdraw their applications for admission. Persons who entered under the Visa Waiver Program and who need to remain in the U.S. for medical treatment that extends beyond the 120 day extension may apply to DHS for a waiver.
Voluntary Departure in Removal Proceedings
The Immigration Judge (IJ) overseeing the proceedings may grant VD before the completion of the proceedings or at the conclusion of the proceedings.
Prior to Completing Proceedings
VD may be granted (by IJ) for up to 120 days if respondent: a) requests VD prior to/at the master calendar hearing; b) requests no other relief ; c) concedes removability; d) waives appeal. IJ must generally rule on VD within 30 days. At any time prior to completing final hearings the parties may also stipulate to VD up to 120 days.
At Conclusion of Removal Hearing
At conclusion of removal hearing the IJ may grant up to 60 days voluntary departure so long as the following conditions are met: a) must have been physically present in U.S. for at least one year prior to Notice to Appear; b) must be a person of good moral character for at least 5 years before the VD application; c) must not be deportable as an aggravated felon or terrorist; d) must establish by clear and convincing evidence the wherewithal to depart at own expense and intention to do so; d) must have financial ability to post bond (of no less than $500) designated by IJ within 5 days of order.
Consequences for Failure to Depart
[INA §240B(d)(1), 8 USC §1229(d)(1)]
Failure to depart within the Voluntary Departure (VD) period results in: (1) a civil penalty of $1,000 to $5,000; and (2) ineligibility for 10 years for VD, Adjustment of Status, Cancellation, Change of Status or registry. There is no exceptional circumstances exception. Bar still applies even if the required bond is not posted. Ineffective assistance of counsel will not save person from bar. Bar will not apply if failure to depart was not “voluntary.” VAWA self petitioners may still be eligible for removal relief if battery or extreme cruelty was at least one central reason for failure to VD.