Voluntary departure in immigration court
Voluntary Departure Lawyer — Leaving on Your Terms, Not Under a Removal Order
Voluntary departure lets a person in removal proceedings leave the United States at their own expense, by a date the immigration judge sets, instead of leaving under an order of removal. It can protect the chance of returning one day, but it has strict conditions and heavy penalties, and asking for it too early can mean giving up every other defense. Carlos Maury, a former U.S. Immigration Judge who heard cases at the Van Nuys Immigration Court, and before that served as government immigration counsel, helps people weigh voluntary departure against the relief that may remain, ask for it at the right moment and meet its conditions, in English and Spanish.
Carlos Maury is no longer on the bench and cannot influence any sitting judge or pending case.
Why a former immigration judge
Voluntary departure is decided in immigration court, often in minutes at a master calendar hearing. The judge must find that the person qualifies, set the time to leave and enter an alternate order of removal, and a Department of Homeland Security (DHS) attorney may oppose. A request made at the wrong hearing can be lost for good.
Carlos Maury served as a U.S. Immigration Judge at the Van Nuys Immigration Court, appointed by Attorney General Eric Holder, hearing cases from June 2015. As a judge, he decided roughly six hundred asylum cases on their merits in recent years (TRAC judge report (opens in new tab)). From 2002 to 2015 he worked with U.S. Immigration and Customs Enforcement (ICE) in Los Angeles, rising to deputy chief counsel, the side of the courtroom that reviews the government's file and takes a position on relief.
That experience shapes how we approach voluntary departure: we look first at what the person would give up, read the record the way the judge and the government attorney will, and prepare the proof of eligibility, the travel document and the plan to leave before the hearing, not after. None of this can promise a particular outcome; every case turns on its own facts and the law.
What we handle
We handle voluntary departure as part of the whole removal case, not as a form to sign. Our guide to deportation vs. voluntary departure compares the two side by side, and our article voluntary departure explained covers the basics.
- Deciding whether to ask for it. Comparing voluntary departure with the relief that may still be available. See our deportation defense lawyer page.
- The request and its proof. Timing the request, proving eligibility and posting the bond on time.
- Appeals, motions and petitions for review. How each one affects a grant. See our immigration appeals lawyer page.
- Criminal records. Whether a conviction is an aggravated felony or another bar. See our criminal immigration lawyer page.
- Detention. Voluntary departure for a person held by ICE, and release on bond. See our immigration bond lawyer page.
- Coming back later. The unlawful-presence bars and the waivers that may apply. See our immigration waiver lawyer page.
What voluntary departure is, and what it is not
Voluntary departure comes from section 240B of the Immigration and Nationality Act (INA § 240B, 8 U.S.C. § 1229c (opens in new tab)). An immigration judge can grant it before the case is completed, under section 240B(a), or at the end of the case, under section 240B(b). The court applies 8 C.F.R. § 1240.26 (opens in new tab).
Voluntary departure is not permission to stay; it is a promise to leave by a deadline, backed by penalties. It is also not a removal order, which is why it matters. The decision is discretionary, and federal courts cannot review a denial (8 U.S.C. § 1229c(f)). With every grant, the judge must also enter an alternate order of removal, which takes effect if the conditions are not met (8 C.F.R. § 1240.26(d)).
Voluntary departure before the case is completed
Under section 240B(a) and 8 C.F.R. § 1240.26(b), the judge may grant voluntary departure before the case is completed for up to 120 days. The person must:
- ask for it before or at the master calendar hearing at which the case is first set for a merits hearing;
- make no other request for relief, or withdraw any already made;
- concede removability;
- waive appeal of all issues; and
- not have been convicted of an aggravated felony and not be deportable on security or terrorism grounds.
Timing
The judge may not grant this kind of voluntary departure more than 30 days after that master calendar hearing unless the DHS attorney agrees, which DHS may do at any time before the case is completed (8 C.F.R. § 1240.26(b)(1)(ii)). The judge may set conditions, including a bond, and the person generally must present a passport or other travel document. A person who was arriving in the United States when the proceedings began cannot receive this kind of voluntary departure (INA § 240B(a)(4)).
What you give up
Asking for voluntary departure before the end of the case means giving up asylum, cancellation of removal, adjustment of status and any other relief, and giving up the right to appeal. That can make sense when no other relief is realistic, and be a serious mistake when there is a defense. See cancellation of removal and our guide to removal defense.
Voluntary departure at the end of the case
Under section 240B(b) and 8 C.F.R. § 1240.26(c), the judge may grant voluntary departure at the conclusion of the case, for up to 60 days, only after finding that the person:
- has been physically present in the United States for at least one year before the Notice to Appear was served;
- is, and has been, a person of good moral character for at least five years before applying;
- has not been convicted of an aggravated felony and is not deportable on security or terrorism grounds; and
- has shown by clear and convincing evidence the means to leave and the intention to do so, including a passport or other travel document.
This kind can be requested together with other relief: if the judge denies asylum or cancellation of removal, it can still be granted at the end.
The voluntary departure bond
At the end of the case, a voluntary departure bond is required. The judge sets the amount, which can be no less than five hundred dollars, and it must be posted with ICE within five business days of the judge's order (INA § 240B(b)(3); 8 C.F.R. § 1240.26(c)(3)). The judge must first explain the amount and conditions, and the person may decline the grant. If the bond is not posted, the alternate removal order can become final, and the duty to leave by the deadline does not go away.
Appealing after a grant
A person granted voluntary departure at the end of the case can still appeal to the Board of Immigration Appeals. But the appeal does not excuse the bond: proof that the bond was posted must reach the Board within 30 days of filing the appeal, or the Board will not reinstate the time to leave (8 C.F.R. § 1240.26(c)(3)(ii)). Only DHS can extend the time to depart, and the total can never exceed 120 or 60 days (8 C.F.R. § 1240.26(f)).
Who cannot receive voluntary departure
A person convicted of an aggravated felony, or deportable on security or terrorism grounds, cannot receive it from the judge. A person who was arriving in the United States when the proceedings began cannot receive it before the end of the case. A person who was previously permitted to depart voluntarily after having been found inadmissible for being present without admission or parole cannot receive it again (INA § 240B(c)). And a person who received voluntary departure before and did not leave on time is barred for ten years (8 C.F.R. § 1240.26(a)).
If you do not leave on time
Under INA § 240B(d), a person granted voluntary departure who voluntarily fails to leave within the period:
- is subject to a civil penalty of not less than one thousand and not more than five thousand dollars; the regulation presumes three thousand dollars unless the judge or the Board sets a different amount when granting voluntary departure (8 C.F.R. § 1240.26(l));
- becomes ineligible for ten years for further voluntary departure, cancellation of removal, adjustment of status, change of status and registry; and
- faces the alternate order of removal, which becomes final when the time runs out (8 C.F.R. § 1241.1(f) (opens in new tab)).
The statute makes a limited exception to the ten-year bar for some VAWA cases.
Motions, petitions for review and voluntary departure
Challenging the decision affects the grant, so the order of filings matters.
- Motion to reopen or reconsider. Filing one during the voluntary departure period automatically ends the grant, and the alternate order of removal takes effect at once; the penalties for failing to leave then do not apply (8 C.F.R. § 1240.26(b)(3)(iii), (e)(1)). The Supreme Court held in Dada v. Mukasey, 554 U.S. 1 (2008), that a person must be allowed to withdraw a voluntary departure request before the period ends in order to pursue a motion to reopen (opinion (opens in new tab)). See motions to reopen.
- Petition for review in federal court. Filing one before leaving also automatically ends the grant and puts the alternate order into effect (8 C.F.R. § 1240.26(i)); a stay of removal may then be needed. A person granted voluntary departure at the end of the case who leaves within 30 days of filing the petition, and gives DHS the required proof, is not treated as having departed under a removal order.
What voluntary departure does and does not fix
A person ordered removed, or who leaves while a removal order is outstanding, is generally inadmissible for ten years, twenty after a second removal, and at any time after an aggravated felony conviction, unless the government consents to a new application for admission (INA § 212(a)(9)(A), 8 U.S.C. § 1182 (opens in new tab)). A timely departure under voluntary departure avoids that bar, because it is not a departure under a removal order.
Voluntary departure does not erase time already spent in the country without status. Under INA § 212(a)(9)(B), a person unlawfully present for more than 180 days but less than a year who leaves before proceedings begin is inadmissible for three years, and a person unlawfully present for a year or more is inadmissible for ten years after leaving, however the departure happens. Time under age 18 does not count. A waiver exists for the spouse, son or daughter of a U.S. citizen or permanent resident who shows extreme hardship to that relative. See our immigration waiver lawyer page.
Voluntary departure is not the same as just leaving
Voluntary departure from DHS
Authorized DHS officers may grant voluntary departure instead of starting court proceedings, with conditions such as detention until the departure, and no appeal lies from a denial (8 C.F.R. § 240.25 (opens in new tab)). "Voluntary return" agreed to at the border is not the same as voluntary departure granted by a judge. Before signing any paper, ask what it is.
Leaving through the CBP Home app
CBP Home is a DHS phone app for people who tell the government they plan to leave. DHS states that leaving through the app is not voluntary departure under INA § 240B. A pending court case continues until the judge closes it, and missing a hearing can lead to a removal order in absentia. See our article on CBP Home and its legal risks.
Leaving with a removal order
A person ordered removed who leaves the United States, however the trip is paid for, is considered to have been removed (8 U.S.C. § 1101(g)). Leaving does not cancel the order; it carries it out.
Mistakes that can hurt a voluntary departure case
- Asking too early. Giving up a real defense to leave quickly.
- Asking too late. Missing the master calendar hearing where the request must be made.
- Coming without a travel document. A passport is part of the proof.
- Missing the bond deadline. Five business days pass quickly.
- Filing a motion without a plan. It ends the grant at once.
- Staying past the date. The penalty and the ten-year bar follow.
- Letting a notario handle it. A "notario" is not a lawyer and cannot represent you before USCIS or in immigration court.
Serving Los Angeles & Southern California
Our office is in Van Nuys, in the San Fernando Valley, and we regularly appear for people weighing voluntary departure in the immigration courts of Los Angeles and Southern California:
- Los Angeles immigration court
- West LA immigration court
- Van Nuys immigration court
- Santa Ana immigration court
- Adelanto immigration court (detained cases)
- San Diego immigration court
- Otay Mesa immigration court (detained cases)
- Imperial immigration court
See all Los Angeles-area immigration courts.
Our page on the Southern California immigration courts covers all eight court locations, including the border courts in San Diego, Otay Mesa and Imperial.
Immigration law is federal, so we represent clients across the country, before USCIS and the immigration courts. We appear in immigration courts in all 50 states, in person or by video where the court allows. Find your court among all 77 immigration courts. Meetings at the Van Nuys office are by appointment only.
Carlos Maury is licensed in Florida. Practice limited to federal immigration law; we represent clients in all 50 states.
About Carlos Maury
Carlos Maury served as a U.S. Immigration Judge at the Van Nuys Immigration Court, appointed by Attorney General Eric Holder, hearing cases from June 2015 (EOIR announcement (opens in new tab)). From 2002 to 2015 he worked with U.S. Immigration and Customs Enforcement in Los Angeles, rising to deputy chief counsel. Before that he was district counsel for the former Immigration and Naturalization Service in Miami from 2000 to 2002, and an assistant public defender in Florida's Eleventh Judicial Circuit from 1993 to 2000.
He earned his J.D. from the University of Miami School of Law in 1992 and his B.A. from City College of the City University of New York in 1989. He is a member of The Florida Bar (No. 964239) and works with clients in English and Spanish. Read more about Carlos Maury.
Frequently asked questions
Is voluntary departure better than a deportation order?
It can be, because leaving on time under a grant avoids the bar on returning that follows a removal order. But it has strict conditions, may mean giving up other relief and the right to appeal, and does not erase the unlawful-presence bars. It depends on the facts of each case.
When do I have to ask for voluntary departure?
To receive it before the case is completed, you must ask before or at the master calendar hearing at which your case is first set for a merits hearing, and the judge cannot grant it more than 30 days later unless DHS agrees. At the end of the case, it is requested at the final hearing.
How much is the voluntary departure bond?
When voluntary departure is granted at the end of the case, the judge sets a bond of at least five hundred dollars, which must be posted with ICE within five business days of the order. Before the end of the case, a bond is optional.
What happens if I do not leave by the deadline?
You face a civil penalty of not less than one thousand and not more than five thousand dollars, you become ineligible for ten years for further voluntary departure, cancellation of removal, adjustment of status, change of status and registry, and the alternate removal order becomes final.
Can I appeal if the judge grants voluntary departure?
If you asked for it before the case was completed, you waived appeal. If it was granted at the end of the case, you can appeal to the Board of Immigration Appeals, but you must post the bond and send the Board proof within 30 days of filing the appeal, or the Board will not reinstate your time to leave.
Does a motion to reopen stop the voluntary departure deadline?
No. Filing a motion to reopen or reconsider during the voluntary departure period automatically ends the grant, and the alternate removal order takes effect. The penalties for failing to leave then do not apply.
Can I come back to the United States after voluntary departure?
Leaving on time under a grant is not a departure under a removal order, so that bar does not apply. But if you had one year or more of unlawful presence, leaving can trigger a ten-year bar, which has a waiver only for certain relatives of U.S. citizens and permanent residents.
Is leaving through the CBP Home app the same as voluntary departure?
No. DHS states that leaving through CBP Home is not voluntary departure under the statute. If you have a court case, it continues until the judge closes it. If you already have a removal order, leaving generally carries out that order.
Can Carlos Maury influence the judge deciding my case?
No. Carlos Maury is no longer on the bench and cannot influence any sitting judge or pending case. What he offers is preparation and experience, not access.
Do you handle voluntary departure in immigration court in Los Angeles and Southern California?
Yes. We represent people in the immigration courts in Los Angeles, Van Nuys, West LA and Santa Ana, at Adelanto for detained cases, and in San Diego, Otay Mesa and Imperial. Our office is in Van Nuys, and meetings there are by appointment only.
Talk with a former immigration judge before you agree to leave
Whether your next hearing is the one where voluntary departure must be requested, a judge has already granted it, or you are thinking of leaving on your own, call before the deadlines pass. Hablamos español.