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.
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
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).
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).
alien who was previously granted voluntary departure after having
been found inadmissible for entering the United States without inspection
for voluntary departure.
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.
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).
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.
TO GENERIC ORAL DECISION FORMAT