Voluntary departure lets you leave the United States on your own by a deadline set by an immigration judge, instead of being removed under an order. A removal order is a formal finding that you must be deported, and it carries bars on returning that can last for many years. The difference can decide whether you are able to come back to your family or your work, so it deserves a careful look before you accept either outcome. This post compares the two, explains the rules and risks of voluntary departure, and describes who should consider it.
The short version
Voluntary departure avoids a removal order and the long re-entry bars that follow it, but it comes with a firm deadline, a bond, and steep penalties if you do not leave on time. It is not available to everyone, and it may be the wrong choice if you have a real path to stay. Do not agree to it until a lawyer has looked at all your options for relief.
Key Takeaways
- A removal order can bar you from returning for years, and in some cases permanently, while voluntary departure does not carry that particular bar.
- At the end of a case, voluntary departure is limited to 60 days and requires a bond of at least $500. Failing to leave on time brings a civil penalty and a 10-year bar on several forms of relief.
- Voluntary departure has traps, including the effect of filing an appeal or motion, so the choice should be made with a lawyer.
What is voluntary departure?
Voluntary departure is a form of relief in which an immigration judge (or in some cases ICE) allows a noncitizen to leave the country at their own expense within a set time, rather than being ordered removed. It is governed by INA 240B (8 U.S.C. 1229c) and the regulation at 8 CFR 1240.26. There are two main versions:
- Before the case ends. The judge may grant it early in the case, often at the first hearing, for up to 120 days. A person who takes it usually gives up the right to contest removal.
- At the end of the case. After a full hearing, the judge may grant it for up to 60 days if the person meets stricter requirements.
If you want to understand where these decisions are made, our guide to the master calendar and individual hearings explains the stages of an immigration court case.
Who qualifies for voluntary departure?
For voluntary departure at the end of a case, the statute requires the person to show a number of things. The judge must find that you have been physically present in the United States for at least one year before the notice to appear was served, that you have been a person of good moral character for the five years before the application, that you have not been convicted of an aggravated felony and are not deportable on security grounds, and that you have the means to leave and intend to do so. You must also post a bond. For the early version, the requirements are lighter, but the consequence is that you usually must concede removability and waive appeal. Because these eligibility rules turn on your record, we review it before we ever recommend this option.
What does a removal order do?
A removal order is a formal order from an immigration judge that you be deported. Beyond the removal itself, it has lasting effects on your ability to return. Under INA 212(a)(9)(A), a person who has been ordered removed is generally inadmissible for a period after leaving: 10 years in many cases, 20 years for a second removal, and permanently for someone with an aggravated felony. Someone who comes back unlawfully after removal can face reinstatement of the old order, with limited chances to fight it, and possible criminal charges.
A removal order can also make it harder to apply later for a waiver, a visa, or a green card through a family member. Our guide to grounds of inadmissibility explains how these bars connect to other parts of the law.
Voluntary departure vs. a removal order: how do they compare?
- Re-entry bars. A removal order triggers the bars described above. Voluntary departure does not trigger the removal bar. It does not erase other bars, though: if you built up unlawful presence before leaving, the separate three-year or ten-year unlawful presence bars in INA 212(a)(9)(B) can still apply.
- Control. With voluntary departure you choose your travel date within the deadline and travel at your own expense. With a removal order, ICE arranges removal, and you may be detained.
- Cost and risk. Voluntary departure requires a bond of at least $500 for the end-of-case version. A removal order has no bond, but it may mean detention.
- Flexibility. Voluntary departure comes with a firm deadline and strict conditions. A removal order can sometimes be challenged by an appeal or a motion to reopen, which we cover below.
- Future applications. Many visa and green card applications ask whether you were ever ordered removed. A truthful answer of “no” because you took voluntary departure is often easier to work with.
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What happens if you do not leave on time?
This is the biggest risk of voluntary departure. If you are granted it and then fail to depart by the deadline, the voluntary departure order turns into an order of removal, and under INA 240B(d) you face a civil penalty (the statute sets a range of $1,000 to $5,000, which can be adjusted) and a 10-year bar on cancellation of removal, adjustment of status, voluntary departure, and certain other relief. The bond is also forfeited. A short delay for a valid reason, such as a medical emergency, can still cost you, so you should plan your departure from the day the judge grants it. Proof of departure matters too: the regulation requires you to give evidence that you left and stayed away.
Can you appeal or file a motion after voluntary departure is granted?
Yes, but the choice has consequences. Under 8 CFR 1240.26, filing a motion to reopen or reconsider terminates a voluntary departure grant, and the alternate removal order takes effect. Filing a petition for review in federal court does the same. The Supreme Court held in Dada v. Mukasey that a person who has been granted voluntary departure can withdraw the request before the departure period ends so that a motion to reopen can go forward. The timing is delicate, and a mistake can cost you the option. We explain how the review process works in our guide to the BIA appeal process.
Who should consider voluntary departure?
It may fit a person who has no realistic way to stay and who wants to preserve the chance to return legally later, for example a spouse of a U.S. citizen who may qualify for a visa or waiver from abroad. It may be a poor fit if you have a strong claim for relief, such as cancellation of removal, asylum, or a green card through a family petition, because accepting voluntary departure early can end the case before you have fought for those. Our post on deportation defense and forms of relief outlines what may be available, and the removal defense page describes how we handle these cases.
Frequently Asked Questions
Does voluntary departure count as a deportation?
No. It is not a removal order, so it does not trigger the removal bars in INA 212(a)(9)(A). However, if you built up unlawful presence before you left, a separate unlawful presence bar can still apply.
How much is the bond for voluntary departure?
For voluntary departure granted at the end of a case, the regulation sets a minimum bond of $500. The judge can set a higher amount. The bond is forfeited if you do not leave on time.
Can I ask for voluntary departure and still fight my case?
It depends on the version. Early voluntary departure generally requires you to concede removability and give up appeals. At-the-end voluntary departure comes after a full hearing, so you can seek other relief first, and the judge may grant voluntary departure as a fallback.
What if I cannot leave by the deadline?
Contact a lawyer right away, before the deadline passes. Missing it brings penalties and a 10-year bar on several kinds of relief, so there is very little room for delay.
How We Can Help
We represent clients in immigration court and help them decide whether voluntary departure is a smart exit or a costly mistake. At Ilabaca Law, PLLC, we review your eligibility for relief, explain the bars you would face under each outcome, prepare the bond and travel plan if voluntary departure is the right choice, and fight the case when a path to stay exists. Call us at (407) 917-2087 or use the intake form to start a free pre-evaluation.
Our founding attorney Denisse Ilabaca is Board Certified in Immigration and Nationality Law by The Florida Bar, a distinction held by fewer than two percent of Florida attorneys.
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship with Ilabaca Law, PLLC. Immigration law and agency policy change often, and the right step for you depends on your individual facts. Prior results do not guarantee a similar outcome. This may be considered an attorney advertisement.