Immigrants facing deportation may have an alternative

Immigrants in removal proceedings who know their hearings are going to end badly may be able to salvage their situation by requesting voluntary departure.

They would still have to leave the U.S., but they wouldn’t be deported. It’s an important distinction: Deportation would bar them from entering the U.S. lawfully for between five and 20 years. Voluntary departure, which carries no such sanction, might be a benefit not only to the immigrant, but also to President Trump. 

Trump’s enforcement objective is to return “millions and millions of criminals back to the places from which they came.” An immigration court backlog crisis makes it impossible to put that many immigrants through removal proceedings. The backlog has reached more than 4 million cases.

Voluntary departure only reduces the backlog if it is granted at a master calendar hearing. That is when immigrants in removal proceedings appear before an immigration judge to have their cases scheduled for a merits hearing, which is when deportability and any available form of relief from deportation is adjudicated. If voluntary departure is granted at a master calendar hearing, there is no merits hearing, which takes cases off of the immigration court’s backlog docket. 

Trump is likely to do whatever he can to encourage migrants in removal proceedings to take advantage of the benefits they can get from voluntary departure. 

The main benefit of voluntary departure is that it enables an immigrant to avoid the statutory bars that prevent immigrants from entering the U.S. lawfully for a very long time if they are deported.

If they were deported in expedited removal proceedings or after formal removal proceedings that started when they arrived at a port of entry, they are inadmissible for five years after their removal. The bar is extended to 20 years if they were deported previously. The bar is permanent if they have been convicted of an “aggravated felony.” 

Migrants not covered by those provisions who were deported upon the completion of a merits hearing, or who departed while a deportation order was outstanding, are inadmissible for 10 years after their removal. The bar is extended to 20 years if they have been removed previously. The lifetime aggravated felony bar applies here too.

In addition, voluntary departure allows individuals to leave the U.S. on their own terms, and it provides them up to 60 days to make necessary arrangements, such as selling property, settling debts and ensuring that their family members are prepared for their departure.

Individuals who are deported, in contrast, may be taken into custody by Immigration and Customs Enforcement and removed from the country without an opportunity to make these critical arrangements. 

Immigrants who are subject to these bars can request a waiver. A number of factors are considered in deciding whether to grant such a request. This includes such things as the basis for the deportation, the recency of the deportation, how long the immigrant lived in the U.S., whether the immigrant has good moral character and family responsibilities in the U.S., the hardships involved, and whether there is a need for the person’s services in the U.S. 

To establish eligibility for voluntary departure, immigrants must concede that they are not legally in the U.S. and show that they intend to leave the country. Immigrants who have been convicted of an aggravated felony or who are deportable on security or related grounds are not eligible.

The immigration judge may require the immigrant to post a bond of at least $500 that will ensure a timely departure. The money will then be returned when proof is submitted that the immigrant has made a timely departure.

Voluntary departure is only available to immigrants who can depart at their own expense. This problem could be eliminated for immigrants who do not need a merits hearing because they are granted voluntary departure at a master calendar hearing. Trump would need to declare that the backlog is a national emergency, and authorize the immigration court to offer immigrants free transportation at master calendar hearings.

He already has declared a national emergency to use soldiers and construct a wall along the southern border “following four years of record-shattering illegal immigration into the United States.”  

The need to deal with the immigration court backlog crisis surely justifies a national emergency declaration, too, as the backlog is severely limiting the immigration court’s ability to remove that record-shattering number of undocumented migrants. 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.