Throughout the course of the 2024 presidential election campaign, talk of mass deportations and a crackdown on illegal immigration has been the center of many debates. As an immigration attorney, I represent many foreign nationals who are facing deportation from the United States. Many of my clients are respondents in removal proceedings before the Immigration Courts, which are housed under the Department of Justice’s Executive Office for Immigration Review (EOIR). As a result of a significant backlog in cases before EOIR, removal proceedings can last several years. Consequently, some of my clients have undergone changed circumstances in their personal lives that result in their desire or necessity to leave the United States. These clients often ask if they can simply deport themselves. In true lawyer-like fashion, the answer depends.
Section 235 Expedited Removal Proceedings
Two main but nonexclusive procedures through which the U.S. government deports foreign nationals include (1) expedited removal proceedings under Section 235 of the Immigration and Nationality Act (INA) and (2) general removal proceedings under Section 240 of the INA. A foreign national who illegally enters the United States is generally first subject to expedited removal proceedings where an immigration officer determines if the foreign national has indicated whether he or she has an intention to apply for asylum or has a fear of persecution in his or her home country. If the immigration officer determines the foreign national has no such intention or fear, then the officer orders the foreign national removed (i.e., deported) from the United States without a future court hearing or review.[1] See INA § 235(b)(1)(A)(i). During the pendency of expedited removal proceedings, the foreign national is detained. See INA § 235(b)(1)(B)(iii)(IV).
If, however, the foreign national does express an intent to apply for asylum or does have a fear of persecution, then the immigration officer refers the foreign national for an interview conducted by an asylum officer. See INA § 235(b)(1)(A)(ii). Nonetheless, this referral does not mean that the foreign national is no longer in expedited removal proceedings. Rather, the asylum officer will determine whether the foreign national has a “credible fear of persecution.” Specifically, the asylum officer will determine whether there is a significant possibility that the foreign national could establish eligibility for asylum while considering the foreign national’s credibility of his or her statements made in support of his or her claim. See INA § 235(b)(1)(B)(ii); see also INA § 235(b)(1)(B)(v). If the asylum officer determines that the foreign national has no such credible fear, then the officer orders the foreign national to be removed from the United States. See INA § 235(b)(1)(B)(iii)(I). The foreign national can request prompt review of the asylum officer’s determination by an immigration judge, which includes an opportunity for the foreign national to be heard and questioned by an immigration judge. See INA § 235(b)(1)(B)(iii)(III). If the immigration judge agrees with the asylum officer’s assessment, then the expedited removal order from the asylum officer is affirmed and the foreign national will be forcibly removed from the United States.
On the other hand, if the immigration judge disagrees with the asylum officer’s assessment, or the asylum officer finds the foreign national to have a “credible fear of persecution,” then the foreign national is detained for further consideration for his or her application for asylum. See INA §235(b)(1)(B)(ii). The attorney general may continue to detain the foreign national or may release him or her on a bond of at least $1,500 or on conditional parole. See INA § 236(a).[2] Normally, the foreign national is then given a Notice to Appear (NTA) that, among other information, should list the place, date, and time of the foreign national’s Immigration Court hearing.[3] The filing of the NTA with the EOIR initiates Section 240 general removal proceedings. See INA § 239(a)(1).
As its name suggests, expedited removal proceedings are generally expedited; the entire process normally lasts anywhere from a few hours to a couple weeks. Given that foreign nationals who are subject to expedited removal proceedings are detained, self-deportation (known as “voluntary departure”) is uncommon. However, the U.S. Department of Homeland Security (DHS), the federal agency responsible for granting a request for voluntary departure outside of the Immigration Courts, can agree to a foreign national’s request for voluntary departure. Nonetheless, the issuance of an expedited removal order generally results in swift deportation.
Section 240 Removal Proceedings
Turning to Section 240 general removal proceedings, whether a foreign national can self-deport becomes a more complicated question. First, self-deportation is formally referred to as voluntary departure: where a foreign national may request that he or she depart the United States at his or her own expense. See 8 U.S.C. § 1229c. Second, to be eligible for voluntary departure, the foreign national’s immigration classification plays an important role.
When a foreign national enters the United States, whether lawfully or otherwise, the foreign national is either (1) an arriving alien; (2) an alien present in the United States who has not been admitted or paroled; or (3) an alien who has been admitted to the United States but is removable. For classification (1), a foreign national is an arriving alien if he or she is an applicant for admission coming or attempting to come into the United States at a port-of-entry, or a foreign national interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. A foreign national remains an “arriving alien” even if paroled under Section 212(d)(5) of the INA, and even after any such parole is terminated or revoked. See 8 C.F.R. § 1001.1(q). This classification commonly applies to foreign nationals who present themselves at a port-of-entry, and U.S. immigration officials grant them parole into the United States.
Classification (2) applies to foreign nationals who have not lawfully entered the United States or who were not otherwise permitted to enter the United States under the Attorney General’s parole authority (which usually applies to those seeking urgent humanitarian assistance). Lastly, classification (3) is for foreign nationals who lawfully entered the United States. This classification is usually assigned to those who presented a U.S. visa or lawful permanent residence card (also known as a “green card”) at a U.S. port-of-entry, but are now removeable from the United States, such as the foreign national’s engagement in certain criminal activity. On the foreign national’s NTA, the DHS, the agency responsible for initiating general removal proceedings against a foreign national and who files the NTA with the EOIR, should have one of these three classifications notated.
Respondents will have an opportunity to contest whether the DHS indicated the appropriate immigration classification on the NTA. If the respondent wishes to voluntarily depart the United States, he or she will generally be given two opportunities to request so: once at the beginning of removal proceedings (known as pre-conclusion voluntary departure), and once at the end (known as post-conclusion voluntary departure). As these technical names suggest, pre-conclusion voluntary departure relates to seeking voluntary departure at the outset of removal proceedings and before the immigration judge adjudicates the foreign national’s application(s) for relief from removal, usually at the first Master Calendar hearing before an immigration judge. Post-conclusion voluntary departure, on the other hand, is after the immigration judge has heard the foreign national’s claim and has adjudicated his or her application(s) for relief, usually at the end of the last Individual hearing.
Pre-Conclusion Voluntary Departure
Pre-conclusion voluntary departure is unavailable to classification (1): arriving aliens. See INA § 240B(a)(4). This means that arriving aliens cannot self-deport the United States until after their claim(s) for relief from removal have been fully heard. If, however, the foreign national does not wish to apply for relief from removal, or the foreign national withdraws his or her application(s) for relief, then the immigration judge may grant post-conclusion voluntary departure, discussed below. For foreign nationals with classifications (2) or (3), they are eligible to seek pre-conclusion voluntary departure if they (A) make no other requests for relief from removal or withdraw such requests, (B) concede removability, (C) waive appeal of all issues, and (D) have not been convicted of an aggravated felony or are not deportable for security-related grounds. See 8 C.F.R. § 1240.26(b)(1)(i). In granting a request for pre-conclusion voluntary departure, the immigration judge may require the foreign national to post a bond or impose other conditions to ensure the foreign national’s departure from the United States. See 8 C.F.R. § 1240.26(b)(3)(i). However, the immigration judge can only grant a maximum of 120 days for the foreign national to depart the United States. See INA § 240B(a)(2); see also 8 C.F.R. § 1240.26(e).
Post-Conclusion Voluntary Departure
Post-conclusion voluntary departure is generally available to foreign nationals of all three classifications, excluding those who have been convicted of certain crimes or who have previously been granted voluntary departure. See INA § 240B(c). However, eligibility for post-conclusion voluntary departure can be more difficult to satisfy. Respondents are only eligible if (1) they have been physically present in the United States at least one year immediately preceding the date the NTA was served upon the respondent under Section 239(a) of the INA; (2) they have been a person of good moral character for at least five years immediately preceding their application for voluntary departure; (3) they are not deportable for having been convicted of an aggravated felony or for a security-related ground; and (4) they have established by clear and convincing evidence that they have the means to depart the United States and intend to do so. See INA § 240B(b)(1).
If a respondent meets these requirements, and the Immigration Judge grants the respondent’s request, then the respondent shall be required to post a bond no less than $500. See INA § 240B(b)(3); see also 8 C.F.R. § 1240.26(c)(3)(i). The respondent will have 60 days to depart the United States. See INA § 240B(b)(2); see also 8 C.F.R. 1240.26(e). If the immigration judge denies post-conclusion voluntary departure, then no court has jurisdiction over an appeal, nor may any court order a stay of the respondent’s removal pending consideration of any claim with respect to voluntary departure. See INA § 240B(f).
Advantages to Voluntary Departure and Consequences for Failing to Depart
Whether an immigration judge grants pre- or post-conclusion voluntary departure, the result is the respondent leaving the United States, assuming the respondent obeys the voluntary departure order. For immigration attorneys and their clients, voluntary departure can, at times, feel like a defeat. After all, respondents are either forfeiting their claims for relief from removal, or they are forfeiting their appeals of an immigration judge’s denial of their relief from removal.
Nonetheless, there are several advantages to voluntary departure, which are attributed to some respondents’ interests in this legal mechanism. A significant advantage to voluntary departure is that it is not a removal order. In other words, if the respondent complies with the voluntary departure order and in fact departs the United States, it will be easier, although not necessarily easy, for him or her to lawfully return to the United States. This is especially true for those who will eventually return to the United States through Consular Processing, a manner in which foreign nationals may apply for a visa at a U.S. Embassy or Consulate abroad and then present themselves at a U.S. port-of-entry with said visa.
Other advantages include Respondents’ ability to leave the United States without the stigma of a forceful deportation and any future lawful reentry to the United States will not result in the DHS reinstating a prior removal order, as no such order exists. Although it may seem obvious, it is vital to ensure that clients in removal proceedings truly intend to depart the United States because there are significant consequences for respondents who fail to comply with their voluntary departure order.
When an immigration judge issues an order of voluntary departure, they also issue an alternate removal order so that the voluntary departure order automatically converts to a removal order in the event the respondent fails to depart the United States. See 8 C.F.R. 1240.26(d). A removal order against a foreign national makes him or her inadmissible to the United States, which, without an immigration waiver, will make him or her ineligible to enter the United States for, in some cases, up to 20 years. See INA § 212(a)(9)(A).
Additionally, the respondent will be subject to a civil penalty of not less than $1,000 and not more than $5,000; however, there is a rebuttable presumption that the civil penalty for failure to depart is $3,000. See INA § 240B(d)(1)(A); see also 8 C.F.R. 1240.26(l). Furthermore, the respondent will be ineligible for 10 years from the expiration date of the voluntary departure order for adjustment of status, cancellation of removal, change of nonimmigrant status, registry, and future grants of voluntary departure. See INA § 240B(d)(1)(B); see also American Immigration Council, Practice Advisory, Voluntary Departure: When the Consequences of Failing to Depart Should and Should Not Apply (Dec. 21, 2017). For attorneys, it is essential to explain these consequences to our clients before a request or motion for pre- or post-conclusion voluntary departure is made.
Voluntary departure has several other nuances that, although less common, are beneficial for immigration attorneys to know. For example, immigration judges have the authority to grant voluntary departure to foreign nationals who have already departed the United States. See Matter of Sanchez-Medina (BIA June 27, 2014). Of course, an attorney will almost certainly not recommend a client depart the United States prior to a grant of voluntary departure, as doing so could result in the client receiving an in absentia removal order. Another nuance is that foreign nationals who are not in removal proceedings can request voluntary departure directly from the DHS, usually through U.S. Immigration and Customs Enforcement (ICE). See INA § 240B(a)(1).
Conclusion
Voluntary departure offers eligible foreign nationals with an opportunity to leave the United States without suffering the consequences of a formal removal order. As attorneys, it is our obligation to make a good-faith effort in determining whether our clients are eligible for this ultimate form of relief from a removal order. Moreover, we must advise our clients of the potential requirements they may need to satisfy in the event of a grant of pre- or post-conclusion voluntary departure, as well as the serious consequences of failing to depart.
[1] However, the Attorney General shall provide by regulation for prompt review of such an order against a foreign national who claims under oath, or as permitted under penalty of perjury under Section 1746 of title 28 of the United States Code, after having been warned of the penalties for falsely making such claim under such conditions, to have been lawfully admitted to the United States for permanent residence, to have been admitted as a refugee, or to have been granted asylum. See INA §235(b)(1)(C).
[2] It is noteworthy that certain foreign nationals who have committed certain crimes are subject to mandatory detention, a topic outside the scope of the instant article. See INA § 236(c).
[3] The DHS has issued many NTAs that do not list the time and date of the foreign national’s next Immigration Court hearing date. These NTAs are known as “defective NTAs.”
