What Is Voluntary Departure in Immigration Court?

Voluntary departure is a legal option available during removal proceedings that allows a person to leave the United States at their own expense instead of receiving a formal deportation order. In many cases, it is considered a form of immigration court relief because it may allow an individual to avoid the long-term consequences associated with a removal order.

Voluntary departure must typically be approved by an immigration judge, and the individual must depart the United States within a specified period set by the court.

What does voluntary departure mean

Voluntary departure (VD) refers to a legal option that allows a noncitizen to leave the United States voluntarily rather than being formally removed through deportation.

Key characteristics of voluntary departure generally include:

• The individual leaves the United States at their own expense
• The departure must occur within a specific time period set by the court
• If completed properly, the person avoids having a deportation order on their immigration record

Voluntary departure may be available to both detained and non-detained individuals involved in removal proceedings.

Purpose of voluntary departure in immigration law

The purpose of voluntary departure is to provide an alternative outcome during removal proceedings for individuals who may not wish to continue contesting their deportation case.

In many situations, voluntary departure may be requested:

• To avoid a formal deportation order in the immigration record
• When an individual intends to pursue a lawful pathway to return to the United States in the future
• When an immigration judge indicates that another defense, such as asylum, may not succeed
• When the individual decides not to continue pursuing other immigration court relief

Because voluntary departure does not result in a formal removal order, it may affect future immigration options differently than deportation.

General eligibility considerations

Eligibility for voluntary departure depends on several procedural requirements that vary depending on when the request is made during removal proceedings.

Pre-conclusion voluntary departure

Pre-conclusion voluntary departure must typically be requested before the final hearing in the immigration case.

Common requirements may include:

• Requesting voluntary departure before the final hearing date
• Acknowledging that the individual is not legally in the United States
• Withdrawing or waiving other applications to remain in the country
• Demonstrating the intent and financial ability to leave the United States
• Demonstrating that the individual is considered a “good person.”

Post-conclusion voluntary departure

Post-conclusion voluntary departure may be requested at the final hearing, but the requirements are generally stricter.

Typical requirements may include:

• Showing physical presence in the United States for at least one year before receiving a Notice to Appear
• Paying a bond of at least $500
• Demonstrating the ability and intention to depart
• Showing good character for at least five years

Applicants may also need to provide a valid passport or travel document to confirm their ability to leave the country.

Role of the immigration court in voluntary departure cases

Voluntary departure is generally granted through the immigration court during removal proceedings.

Discretion of the immigration judge

An immigration judge typically has discretion to decide whether voluntary departure should be granted.

The judge may:

• Review the circumstances of the case
• Set the terms and conditions of the voluntary departure
• Require the payment of a bond before departure

Unlike some other forms of immigration court relief, there is no standard application form for voluntary departure. The individual must request it directly from the immigration judge during court proceedings.

Departure deadline

If voluntary departure is granted, the judge generally sets a specific time window, which may be up to 90 days, for the individual to leave the United States.

Possible outcomes if voluntary departure is granted or denied

If voluntary departure is granted

If the immigration judge approves voluntary departure:

• The individual may leave the United States within the court-ordered timeframe
• There is no formal deportation order recorded if the departure occurs as required

This outcome may allow the individual to pursue certain lawful immigration options in the future, depending on other immigration rules.

If voluntary departure is not granted or not completed

If voluntary departure is denied, the immigration court may proceed with issuing a removal order.

If voluntary departure is granted but the person fails to leave within the specified time, serious consequences may occur, including:

• Fines or penalties
• Increased difficulty in obtaining immigration benefits in the future

Important limitations or misunderstandings

Several legal limitations apply to voluntary departure.

Certain individuals are not eligible

Individuals convicted of an aggravated felony are generally not eligible for voluntary departure.

Unlawful presence consequences

Even when voluntary departure is granted, leaving the United States may trigger unlawful presence bars, including:

• A three-year bar if the individual accumulated more than 180 days of unlawful presence
• A ten-year bar if the individual accumulated more than one year of unlawful presence

Accrual of unlawful presence

Unlawful presence may stop accumulating when a nonfrivolous asylum application is filed.

Failure to comply with the departure deadline

If a person does not leave the United States within the designated timeframe, they may face penalties and restrictions on future immigration benefits.

Leaving without voluntary departure approval

Leaving the United States while removal proceedings are ongoing without an official voluntary departure grant may result in a final removal order because the individual failed to appear at a scheduled hearing.

Immigration rules vary by individual circumstances

Whether voluntary departure is available in a specific case depends on several factors, including:

• The individual’s immigration history
• Whether they are currently in removal proceedings
• Any criminal history
• The timing of the request during the immigration court process
• The individual’s ability to demonstrate intent and financial means to depart

Because these factors vary widely, voluntary departure decisions are evaluated on a case-by-case basis in immigration court.

Key takeaways

• Voluntary departure allows a person to leave the United States voluntarily instead of receiving a deportation order.
• It is generally requested during removal proceedings in immigration court.
• The immigration judge has discretion to grant or deny the request.
• If granted, the individual must leave the United States within the court-ordered timeframe.
• Failing to depart within that period may lead to penalties and immigration consequences.
• Certain individuals, including those convicted of aggravated felonies, may be ineligible for voluntary departure.

Final thoughts

Voluntary departure is one of several possible outcomes during removal proceedings in immigration court. In some cases, it may allow individuals to leave the United States without receiving a formal deportation order, provided they comply with the court’s conditions.

Individuals seeking clarification about immigration court relief or voluntary departure may consult a qualified immigration law firm such as AB Legal Consult to better understand how immigration laws may apply to their situation.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Immigration laws and procedures may change, and individual circumstances may affect legal outcomes. Individuals seeking legal guidance should consult a qualified immigration professional.