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Voluntary Departure in the U.S. – If An Alien Fails To Leave

Voluntary Departure in the U.S. - If An Alien Fails To Leave

Navigating the intricacies of immigration law in the United States can be a labyrinthine process for many foreign nationals or aliens, the legal term used for non-citizens within U.S. Immigration and nationality law. The voluntary departure procedure, in particular, presents a complex option for those facing or already in removal proceedings. Understanding the consequences of failing to adhere to it is critical for aliens to avoid severe legal penalties. In this blog post, you’ll find out more about the Voluntary Departure in the U.S..


What is Voluntary Departure in the U.S.?

Voluntary departure is an option granted by an immigration judge or Customs and Border personnel at the border. It allows a foreign national to voluntarily leave the U.S. by a specified date and avoid the severe consequences of a removal order. At first glance, it appears to be a more dignified and less punitive path than a forced deportation or removal. However, the benefits must be weighed carefully against the potential drawbacks.


The Catch-22 of Voluntary Departure

Foreign nationals who entered the U.S. without a visa, overstayed, or violated their visa face potential drawbacks from accepting voluntary departure. Accepting such an order, for example, while avoiding the consequence of a removal order, will not overcome other immigration bars that could arise from a departure from the United States. As a result, a consideration of the totality of immigration laws is required. Below, we will discuss some of the most relevant and common considerations.


Consequences of Not Departing on Time

The first and most critical requirement is the absolute necessity to depart prior to the Voluntary Departure deadline or any extension afforded. Failing to depart by the deadline will result in dire consequences and, indeed, sometimes a worse position than someone ordered removed. 

An immediate consequence of failure to depart the United States is that an order of removal will be entered. Furthermore, the foreign national will be barred from most forms of relief for a period of ten years. This includes adjustment of status, cancellation of removal, and change of status. This bar is statutory, and there is no waiver to overcome the bar. In addition, once the foreign national fails to depart voluntarily, he or she begins to accrue unlawful presence. Thereafter, any departure will be considered a self-removal and trigger reentry bars arising from unlawful presence. The individual can also be subject to a monetary penalty of up to $5,000.00.


Legal Remedies: Motions and Petitions

Motion to Reopen
or Reconsider

If an alien realizes that departing voluntarily would result in undue hardship, there is a narrow window for legal action. Filing a Motion to Reopen or Reconsider before the voluntary departure period lapses can cancel the departure order and replace it with a removal order, thus opening up avenues for legal relief.

Petition for Review

Filing a Petition For Review in a Federal Circuit Court also has a transformative effect on an alien’s legal standing. It revokes the order, replacing it with a removal order. However, it’s important to note that since January 2009, Circuit Courts no longer have the authority to extend the voluntary departure deadline.


Stays or Extension of Failing to Depart

There are specific instances where the voluntary departure date may be extended, stayed, or terminated. These include circumstances where the alien was not properly notified of the order, thereby nullifying the consequences of overstaying. The validity of such a departure order hinges on the alien’s awareness and understanding of the order and its implications.


Exceptional Circumstances

The law recognizes that life can be unpredictable and sometimes tragic. Exceptional circumstances, such as serious illness or the death of an immediate relative, may exempt an alien from the usual penalties of failing to leave on time.


Seeking Legal Assistance

The complexities of immigration law, particularly concerning voluntary departure, underscore the importance of seeking legal advice. An experienced immigration attorney can provide guidance on whether to accept it, how to handle an overstay, and what to do if failing to leave the U.S. becomes a reality.

For those who find themselves in the labyrinth of immigration procedures, assistance is essential. If you need help or advice, you can call us at (212)944-9420. Our team is ready to offer the support and legal counsel you require through a simple phone call or email communication.


In Conclusion

Voluntary Departure in the U.S. may seem like a polite exit off the stage of U.S. residency, but it is fraught with legal snares that can trap the unwary. Non-citizens should carefully consider the long-term consequences and must act promptly if they wish to challenge or change their departure terms. Legal advice is not just a luxury in such scenarios; it is a necessity.

Navigating U.S. immigration laws is a challenge, but knowing your options and understanding the consequences can help ensure your choices lead to the best possible outcome. Remember, voluntary departure is a serious legal decision, and an alien’s future in the U.S. may hinge on this critical choice.

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