VOLUNTARY DEPARTURE - WHAT HAPPENS IF AN ALIEN FAILS TO LEAVE?, January, 1 2011

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January, 2011

VOLUNTARY DEPARTURE - WHAT HAPPENS IF AN ALIEN FAILS TO LEAVE?

Voluntary departure is a grant from a Judge to a respondent in a removal proceeding to leave by a definite date. It seems advantageous, but is it really? If an alien entered the U.S. without a visa or overstayed an authorized stay by more than six months, the recipient of the voluntary departure order would still be inadmissible under the law that bars entrants who came with visas and who have overstayed by more than six months with a three year bar, or if the entrant’s overstay has been more than a year, then they are inadmissible for 10 years. The voluntary departure beneficiary who doesn’t leave by the date granted may be under a greater threat than an alien who is merely ordered deported. The voluntary departure recipient who doesn’t timely leave, faces a permanent bar without the benefit of a Waiver. Also an alien who accepts voluntary departure loses the right to appeal.

MOTION TO REOPEN OR RECONSIDER
If the voluntary departure period has not yet lapsed, a Motion to Reopen and Reconsider filed before the expiration of the voluntary departure grant would automatically cancel the Voluntary Departure Order replacing it with a removal Order. Neither an Immigration Judge nor the Board of Immigration Appeals may stay or reinstate a voluntary departure order. A Motion to Reopen or Reconsider filed before the voluntary departure period has lapsed, however, would cancel the grant of voluntary departure and would avoid the consequences of a permanent bar to a Waiver.

PETITION FOR REVIEW
If a Petition For Review is filed in a Federal Circuit Court, the grant of voluntary departure Order would be automatically revoked and the Order of Removal would automatically replace it. The Circuit Courts since January 2009 no longer have the power to extend voluntary departure during the pendency of a Petition For Review. Even if the Petition For Review is denied, the imposition of a permanent bar to reenter the U.S. for a voluntary departure beneficiary would be removed.

Another sanction that applies to respondents who received voluntary departure is the imposition of a bond, and also if the recipient fails to leave, a fine of up to $5,000 may be imposed. A respondent who is simply ordered deported could file a Motion to Reopen his removal proceedings and could apply for reconsideration even after the Deportation Order is entered.

STAYS, OR EXTENSION OF FAILING TO DEPART
A voluntary departure date may be stayed, extended or terminated because of the filing of a Petition For Review or a Motion to Reopen or Reconsider if filed before the voluntary departure date has expired. If legal counsel or the alien respondent never received notice of the Voluntary Departure Order, the consequences of overstaying would not apply. If the respondent had not received the Notice of the grant of voluntary departure, he/she would not have voluntarily failed to depart. For a grant of voluntary departure to be legal, the respondent had to have the opportunity to decline it when offered by a Judge. Also the respondent must be shown to have had the right to be advised by the Court of his/her right to decline it. If there has not been strict compliance with this requirement, the Voluntary Departure Order would be
invalid. The Court must be shown to have informed the alien of the consequences of a failure to leave within the appointed time if voluntary departure is offered by the Court.

Exceptional circumstances such as serious illness or death of an immediate relative could relieve the consequences of failure to depart.

If you need help or advise, call us at 212-944-9420.

Our assistance is only a phone call, or e-mail communication away!

New York Immigration Lawyers > Immigration Publications > January 2011

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