By Robert L. Reeves and Nancy E. Miller
Aliens in removal proceedings are faced with the very real possibility of being deported from the United States. During the course of those proceedings, the non-citizen may request relief in the form of adjustment of status, cancellation of removal, asylum, waivers from removal or various combinations of the same. Sometimes, the alien is not eligible for any of those forms of relief. Sometimes, the alien is statutorily eligible for relief but the facts do not make a strong case. Either the immigration judge or the alien’s attorney will discuss the possibility of taking voluntary departure in order to avoid a deportation order. The question the alien faces is whether he or she should take voluntary departure. Many issues must be considered in order to make an informed decision in this matter.
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 a 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 leaving the United States within 119 days from the date of the order.
If the alien elects to pursue other relief in the 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. While the matter is on appeal before the Board of Immigration Appeals (BIA), the 60 day clock is stopped. 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, s/he must also file a motion to stay removal and voluntary departure. That motion may or may not be granted. If it is granted, the alien will have some of the 60 days of voluntary departure left (depending on when the motion was filed) if the petition for review is ultimately denied. If the motion is denied, the period of voluntary departure may well have expired by the time the alien receives the denial notice.
If the alien fails to depart the United States during the period of voluntary departure, the order automatically becomes an order of removal (deportation). No one has to go back into court to get a new order. The judge does not need to issue any additional order. This is important for several reasons. An alien with a removal order is ineligible to apply for adjustment of status, change of status, suspension of deportation or cancellation of removal for five years for deportation cases or ten years under removal cases. Additionally, an alien who was granted voluntary departure and failed to leave during the requisite time is barred from relief for a period of ten years. These periods run concurrently (together).
This becomes important if the alien acquires a new basis for a green card after the judge makes a decision on the case. Once an alien is placed in proceedings, the only one in the United States who can adjudicate a green card application is the immigration judge. In addition to these bars, there is the problem of the ability to reopen the proceedings in order to get the new application to the court. Motions to reopen must usually be filed no later than 90 days from the end of the hearing. In Velezmoro v. Ashcroft the Ninth Circuit held that the period of ineligibility runs from the date the voluntary departure expires or the date of unlawful reentry, whichever is later. After the period of ineligibility has expired, the alien is no longer barred (forbidden) from applying for adjustment or other relief.
However, the Velezmoro court did not specifically address the issue of how to get back into court after the expiration of the 90 days. There are exceptions to the 90 day rule. Motions to reopen may be filed after 90 days if the government lawyers join in the motion. Motions may also be filed in asylum or withholding cases where there are changed circumstances in the country of nationality that could not have been discovered or presented before. Changes in law making relief available may also be the basis for a motion to reopen filed after the 90 days have expired. Finally, the court may reopen the case based on exceptional circumstances. Government lawyers are reluctant to join in these motions. Many courts are equally reluctant to reopen a case after the alien has violated a voluntary departure order.
If the alien leaves on his own after the period of voluntary departure has run, he is considered to have self-deported. He does not escape the negative consequences of failing to leave on time. He still incurs the ten year bar that a removal order carries. He may be able to obtain a waiver of that bar and return to the United States in less than ten years if he can show sufficient hardship. It is a difficult standard to meet.
Whether aliens leave on time or after the expiration of the voluntary departure time period, they face serious problems which will affect their ability to return to the United States. If an alien has been in unlawful status in the United States for a period of one year or more and leaves the United States, the alien will incur a ten year bar from returning. In order to apply for an immigrant visa waiver for overstaying, one must show that their U.S. citizen or lawful permanent resident parent or spouse would suffer extreme hardship if not permitted to return. Children are not qualifying relatives for purposes of this waiver. If in unlawful status for more than six months but less than one year and leaves under court-ordered voluntary departure, there is no three year bar.
An alien who has one year or more of unlawful presence and leaves pursuant to a court approved voluntary departure will incur the same ten year bar as the alien who is forceably removed by the government. The alien needs to seriously question what the advantage is of accepting voluntary departure. Also, it is almost impossible to obtain a new nonimmigrant visa after accepting voluntary departure and, therefore, for most people, voluntary departure is a lifetime bar. No one should accept voluntary departure without a clear understanding of exactly how they will be able to return to the U.S. in the future. Before anyone accepts voluntary departure, we recommend an in depth consultation with an experienced immigration lawyer.
