Voluntary Departure At Conclusion of Proceedings


At the conclusion of removal proceedings, the Court may grant voluntary departure in lieu of removal. INA 240B(b). The alien bears the burden to establish both that he is eligible for relief and that he merits a favorable exercise of discretion. See Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972); see also Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999). To establish eligibility, the alien must prove that he (1) has been physically present in the United States for at least one year immediately preceding service of the Notice to Appear; (2) is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure; (3) is not removable under INA 237(a)(2)(A)(iii) (aggravated felony) or INA 237(a)(4) (security and related grounds); and (4) has established by clear and convincing evidence that he has the means to depart the United States and intends to do so. Matter of Arguelles, supra; INA 240B(b)(1). The alien must be in possession of a valid travel document. 8 C.F.R. 1240.26(c)(2). He must also post a voluntary departure bond in an amount necessary to ensure that he will depart; the amount must be at least $500 and must be posted within five days of the voluntary departure order. INA 240B(b)(3); 8 U.S.C. 1240.26(c)(3).


An alien who was previously granted voluntary departure after having been found inadmissible for entering the United States without inspection is ineligible for voluntary departure. INA 240B(c).

 

Certain aliens described in INA 101(f) cannot be found to be persons of good moral character. Even if the alien is not barred by INA 101(f), the Immigration Judge retains discretion to evaluate the alien’s moral character by weighing the negative against the favorable factors.


To determine whether a favorable exercise of discretion is warranted as to a request for voluntary departure, the Court must weigh the relevant adverse and positive factors, including the alien’s prior immigration history; criminal history, if any; length of his residence in the United States; and extent of his family, business, and societal ties in the United States. Matter of Gamboa, 14 I&N Dec. at 248; see also Matter of Arguelles, supra. at 817; Matter of Thomas, 21 I&N Dec. 20, 22 (BIA 1995).


If the alien is statutorily eligible and has established that he warrants a favorable exercise of discretion, the Court may grant voluntary departure for a period of up to sixty days. INA § 240B(b)(2).

 

NOTE: Benchbook Alert


On December 18, 2008, the Department published the final rule amending the voluntary departure regulations. See 73 Fed. Reg. 76,927. This rule became effective January 20, 2009, and applies to any decision granting voluntary departure on or after the effective date. A Notice has been drafted that you may print and hand out to the parties. The Notice contains the necessary advisals in a .pdf format that you may complete, deliver to the respondent and the DHS, and include in the record.  (Voluntary Departure Advisals.pdf)

 

For more information, see the following alert: Alert - New Voluntary Departure Regulation.

 

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