Voluntary Departure: Eligibility Requirements and Legal Standards

Voluntary departure is a form of relief from removal that allows certain noncitizens to leave the United States at their own expense, avoiding the entry of a formal order of removal. The legal framework governing voluntary departure is codified primarily in the Immigration and Nationality Act at 8 U.S.C. § 1229c, with implementing regulations at 8 C.F.R. § 1240.26. Because a formal removal order carries a 10-year bar on reentry—and an order entered after a prior removal can trigger a permanent bar—voluntary departure functions as a significant legal alternative within removal proceedings.

Definition and scope

Voluntary departure is an immigration benefit, not an automatic right. Under 8 U.S.C. § 1229c, an immigration judge or, in limited circumstances, the Department of Homeland Security (DHS) may grant voluntary departure in lieu of a removal order. The noncitizen who departs voluntarily does not incur the statutory bars to reentry that accompany a formal order of deportation or removal under 8 U.S.C. § 1182(a)(9).

Two legally distinct grants exist within the voluntary departure framework:

• Pre-hearing voluntary departure — granted by DHS (through U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection) before proceedings begin, or by the immigration judge at the master calendar stage before the case proceeds on the merits.
• Post-hearing voluntary departure — granted by an immigration judge at the conclusion of removal proceedings, after a full merits hearing.

The Executive Office for Immigration Review (EOIR) supervises immigration judges who adjudicate post-hearing voluntary departure requests. The Board of Immigration Appeals (BIA) has jurisdiction to review denials on appeal.

How it works

The voluntary departure process differs substantially depending on the stage at which it is requested.

Pre-hearing voluntary departure

1. Request to DHS or at master calendar hearing — The noncitizen or their representative requests voluntary departure before the merits of any relief are litigated.
2. Eligibility check — DHS or the immigration judge confirms the noncitizen has not been convicted of an aggravated felony (as defined at 8 U.S.C. § 1101(a)(43)) and is not deportable on terrorism-related grounds under 8 U.S.C. § 1227(a)(4)(B).
3. Grant period — Pre-hearing voluntary departure may be granted for up to 120 days (8 U.S.C. § 1229c(a)(2)(A)).
4. Bond — The immigration judge may require the posting of a voluntary departure bond.
5. Departure — The noncitizen departs within the allotted period at their own expense.

Post-hearing voluntary departure

1. Request at conclusion of proceedings — Made after the immigration judge has heard the merits of the case.
2. Stricter eligibility — The noncitizen must have been physically present in the United States for at least one year preceding the service of the Notice to Appear, must demonstrate good moral character for the preceding 5 years, must not have been convicted of an aggravated felony or a crime specified under 8 U.S.C. § 1101(a)(43), and must demonstrate the financial means and intent to depart.
3. Grant period — Post-hearing voluntary departure is limited to a maximum of 60 days (8 U.S.C. § 1229c(b)(2)).
4. Bond — A bond of no less than $500 is required by statute (8 U.S.C. § 1229c(b)(3)).
5. Departure — Failure to depart within the 60-day window results in automatic imposition of a civil penalty between $1,000 and $5,000 (8 U.S.C. § 1229c(d)(1)), a 10-year bar on discretionary relief, and reinstatement of the removal order.

The consequences of failing to depart under a post-hearing grant are severe: under 8 U.S.C. § 1229c(d), the noncitizen becomes ineligible for cancellation of removal, adjustment of status, change of nonimmigrant classification, or registry for a period of 10 years.

Common scenarios

Voluntary departure arises in several recurring factual patterns within immigration proceedings:

Long-term residents with strong community ties but no viable relief — A noncitizen who has resided in the United States for 15 years, has U.S. citizen family members, but does not qualify for cancellation of removal (perhaps due to a disqualifying criminal record short of an aggravated felony) may seek post-hearing voluntary departure to preserve future consular processing options. The absence of a formal removal order avoids the reentry bars under inadmissibility grounds.

Border apprehension cases — Noncitizens apprehended at or near the border by CBP may be offered pre-hearing voluntary departure before a Notice to Appear is issued, particularly in cases that do not trigger expedited removal procedures under 8 U.S.C. § 1225(b).

Pending family petitions — A noncitizen with an approved immigrant visa petition but a retrogressed priority date may use voluntary departure to leave without a removal order, then await an available visa date abroad and seek consular processing rather than adjustment of status.

Cases involving crimes involving moral turpitude — Noncitizens with certain crimes involving moral turpitude convictions who remain eligible for voluntary departure (because the offense does not constitute an aggravated felony) may prefer voluntary departure over contesting removal if other forms of relief are unavailable.

Decision boundaries

Several legal thresholds determine whether voluntary departure is available or foreclosed:

Absolute bars (statutory disqualification):
- Conviction of an aggravated felony under 8 U.S.C. § 1101(a)(43) permanently disqualifies a noncitizen from post-hearing voluntary departure.
- Deportability on terrorist grounds under 8 U.S.C. § 1227(a)(4)(B) bars voluntary departure at any stage.
- Noncitizens who entered under the Visa Waiver Program and waived the right to contest removal are generally ineligible; see the Visa Waiver Program legal requirements framework.

Discretionary factors:
Even where statutory eligibility is met, voluntary departure remains a discretionary remedy. The BIA has identified factors governing exercise of discretion in Matter of Gamboa, 14 I&N Dec. 244 (BIA 1973), including the noncitizen's ties to the United States, family relationships, hardship, and record of compliance with immigration laws.

Pre-hearing vs. post-hearing — key distinctions:

Interaction with other forms of relief:
Noncitizens who apply for asylum, withholding of removal, or protection under the Convention Against Torture may simultaneously request voluntary departure as an alternative form of relief. If the primary applications are denied, the immigration judge may grant voluntary departure in the alternative — a standard procedural posture in immigration courts under EOIR practice guidelines.

The BIA's role in reviewing voluntary departure orders is addressed at Board of Immigration Appeals. Circuit courts may review legal questions arising from voluntary departure determinations, but their jurisdiction over discretionary denials is limited under 8 U.S.C. § 1252(a)(2)(B). The interaction of due process rights in immigration proceedings with voluntary departure — particularly regarding notice of consequences — remains an active area of federal litigation.

References

• Immigration and Nationality Act, 8 U.S.C. § 1229c (Voluntary Departure) — U.S. House Office of the Law Revision Counsel
• 8 C.F.R. § 1240.26 — Voluntary Departure — Electronic Code of Federal Regulations (eCFR), U.S. Government Publishing Office
• Executive Office for Immigration Review (EOIR) — U.S. Department of Justice
• Board of Immigration Appeals Practice Manual — U.S. Department of Justice, EOIR
• U.S. Immigration and Customs Enforcement (ICE) — U.S. Department of Homeland Security
• U.S. Customs and Border Protection (CBP) — U.S. Department of Homeland Security
• [Matter of Gamboa, 14 I&N Dec. 244 (BIA 1973)](https