In this time of turbulent change and uncertainty in the area of immigrant rights, it is important that an alien who is granted “Voluntary Departure” understands what they have agreed to, and the consequences of failing to timely depart the United States. Many aliens who have previously been granted the privilege of voluntarily departing the United States in lieu of an order of deportation fail to depart, and later become eligible for permanent resident status. (“green card”). These people may have a family or an employment-based immigrant visa petition become current after the date on which they agreed to depart the US. Despite the INS’ strict enforcement of penalties against aliens failing to depart the United States as promised, these people may still ultimately obtain their green cards.
First, persons in deportation or removal proceedings are eligible for “voluntary departure,” if they can establish good moral character for the preceding five years, and the ability to pay for their own plane ticket home. This relief is available for persons who previously filed asylum and have been referred to the Immigration Judge, whether or not they wish to renew their asylum application in court. If voluntary departure is the only application made, then there is no appeal, and the person is required to depart on or before the date the Immigration Judge sets.
Under the Immigration Act, persons failing to timely depart are ineligible for a ten-year period for Suspension of Deportation, Cancellation of Removal, and adjustment or change status. Additionally, the person may be fined civil penalties, ranging in amounts from one to five thousand dollars.
These penalties are not automatic, however, if the alien can present a plausible explanation for failing to timely depart. The law requires that an alien show that ‘exceptional circumstances’ prevented his timely departure from the United States, to avoid the ten year bar from relief. “Exceptional circumstances’ is defined as ‘serious illness, or death of an immediate relative, but not including less compelling circumstances’. Most Judges read this provision as requiring a case-by-case analysis of the individual’s explanation. Should the individual establish ‘exceptional circumstances,’ he will not be barred for the ten year period.
In recent months, I have consulted with numerous individuals in this predicament. Assuming their reason for not departing does not appear to be ‘exceptional,’ are they out of luck? The answer is NO. The law provides that once a person fails to depart voluntarily, the Judge’s order becomes an order of deportation. Since the person is under the jurisdiction of the Judge until he leaves the United States, he would have to Petition the court for ‘adjustment of status’ to obtain a green card in the US.
By the time the Petition through which this person is eligible for the green card becomes current, however, the time allowable for the filing of a Motion to Reopen may have elapsed, and the INS Attorneys are very stingy with their authority to permit late filings. At this point, the alien must depart the United States to remove himself from the Immigration Court’s jurisdiction. The person is now subject to a ten-year bar from reentering the United States, but may be permitted to reapply for admission with the INS.
Although the person is outside the United States, he can still obtain his green card through an immigrant visa. If the INS grants the person permission to reapply, then the Embassy must act on the Petition as if the person had never been in the United States. The slate is clean. The person need not explain his previous failure to depart, but must simply present a case for the INS to allow his return. Applicable factors include the extent of legally resident family in the United States, employment history, economic ties to the United States, and good moral character.
If this sounds like an extremely complicated bureaucratic procedural maze, it is. The passages back into the United States for a person who has agreed to voluntarily depart the United States but overstayed are narrow, but not impassable. Ideally, one should be fully apprised of the consequences of agreeing to voluntarily depart the United States, before he goes to court. Aliens who have overstayed the date on which they should have departed must be extremely careful in hiring the right lawyer to obtain a waiver to re-enter the U.S. with a visa.
