Voluntary departure is the most common form of relief from removal and may be granted by Immigration Judges, as well as the Department of Homeland Security (DHS), which absorbed the functions of the former Immigration and Naturalization Service. Voluntary departure avoids the stigma of formal removal by allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country, or another country if the individual can secure an entry there. Immigration Judges will provide aliens information on the availability of this form of relief when taking pleadings. It is important to note that aliens granted voluntary departure must depart within the time specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60 days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the BIA usually will extend an earlier grant of voluntary departure for 30 days. As with other forms of discretionary relief, certain individuals will be found ineligible for voluntary departure, and those granted voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms of relief.
The statutory language in section 212(a)(9)(B)(i) of the Act contains specific elements that must be met in order for the three and ten year bars to apply. The alien must have been unlawfully present in the United States for more than 180 days but less than one year for the three-year bar to apply, or for more than one year for the 10-year bar to apply. These three and ten-year bars are triggered by the alien’s departure from the United States and apply when the alien seeks readmission to the United States.
We note that the language in section 212(a)(9)(B)(i)(I) of the Act relating to the three-year bar contains additional requirements not found in section 212(a)(9)(B)(i)(II) of the Act relating to the ten-year bar. Specifically, section 212(a)(9)(B)(i)(I) of the Act states that the alien must have departed voluntarily before proceedings were initiated under section 235(b)(1) or 240 of the Act, which took effect on April 1, 1997. A formal order of voluntary departure is not necessary.
According to the statutory language in section 212(a)(9)(B)(i) of the Act, aliens who departed voluntarily after proceedings under section 235(b)(1) or 240 of the Act were initiated, but before accruing 1 year of unlawful presence, are not subject to the three-year bar. The ten-year bar under section 212(a)(9)(B)(i)(II) of the Act applies regardless of whether the alien departed the United States voluntarily or under an order of removal, and regardless of whether the alien departed the United States before or after removal proceedings were initiated.
While aliens who depart the United States voluntarily while under an order of removal, but prior to accruing one year of unlawful presence, are not subject to the three-year bar under section 212(a)(9)(B)(i)(I) of the Act, they are inadmissible under section 212(a)(9)(A) of the Act, unless they obtain consent to reapply for admission pursuant to section 212(a)(9)(A)(iii) of the Act.