What is Voluntary Departure?
Voluntary departure is a form of discretionary relief from removal that allows a respondent to leave the United States on his or her own, rather than under a removal order. Because it is discretionary, note that an applicant is not necessarily entitled to it. U.S. Immigration and Customs Enforcement (ICE), prior to instituting removal proceedings, or the Immigration Judge (IJ), at the beginning or end of removal proceedings, may grant voluntary departure in lieu of ordering the respondent removed from the United States.
Voluntary departure provides a number of benefits. First, since it is not a removal order, leaving the United States under voluntary departure does not lead to ten years of inadmissibility INA §212(a)(9)(A). Voluntary departure also allows the individual to leave on his or her own, rather than being formally “deported.” Persons who gain the most benefit from a grant of voluntary departure are those who ultimately will have to travel abroad to obtain their immigrant visas because they do not qualify for adjustment of status.
Voluntary Departure in View of the Unlawful Presence Inadmissibility Bars
Note that if you obtain voluntary departure before proceedings commence and before you have been unlawfully present for 1 year, then you are immune to the 3-year bar which is triggered by being present for over 180 days. If, however, you are present for over 1 year, and then you are granted voluntary departure, you are not going to avoid the unlawful presence bar, which will be a 10-year bar. Also note that if you are in a lawful status at the time you receive a notice to appear for removal proceedings, unlawful presence is tolled, but if you are unlawfully present when the notice to appear is issued, unlawful presence is not tolled.
Establishing Compliance with Voluntary Departure
When a person granted voluntary departure leaves the United States, (s)he should keep the airline tickets or other proof of departure from the United States, including the travel document with any notations or stamps indicating that they left the United States and entered into another country. In addition, the person should go to the United States consulate or embassy in his/her home country after leaving the United States to obtain confirmation of departure from the United States.
What is Cancellation of Removal?
Cancellation of removal is a form of immigration relief available to individuals who have been placed in removal proceedings before the United States Executive Office for Immigration Review in Immigration Court. Those who obtain a grant of cancellation of removal are eligible for permanent residency in the United States.
Lawful permanent residents (LPRs) of the United States may be placed in immigration proceedings due to certain criminal convictions that leave them inadmissible or deportable from the United States. LPRs convicted of aggravated felonies are entirely precluded from cancellation relief.
- Pursuant to INA §240A(a), cancellation is available for any LPR who–
- 1) Has been an LPR for not less than five years; and
- 2) Has resided in the United States for not less than seven years in any status; and
- 3) Has not been convicted of an aggravated felony.
- Pursuant to INA §240A(b), cancellation is available to a non-permanent resident of the United States in any immigration status who–
- 1) Has continuously resided in the United States for at least ten years; and
- 2) Has been a person of good moral character throughout this time; and
- 3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in INA §212(a)(2), §237(a)(2), or §237(a)(3); and
- 4) Establishes that removal would result in “exceptional and extremely unusual hardship” to the alien’s spouse, parent, or child who is a United States citizen or legal permanent resident.
To discuss voluntary departure relief or cancellation of removal with an experienced immigration lawyer from the Shah Peerally Law Group, feel free to contact us by email or call us at 510-742-5887.
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