Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
One Practice. One Focus. One Passion: Immigration Law.

Importance Of Maintaining Your Voluntary Departure Status

If you were unfortunate enough to have been placed in deportation or removal proceedings and were not victorious, you may have been granted permission to voluntarily depart the United States by a certain date in lieu of being ordered deported or removed.

If you failed to depart the United States by the date set by the Court, absent any extensions from the District Director's Office, you will be considered to have been ordered deported/removed. And, under the present immigration climate, a warrant will likely have been issued for your arrest. Whether or not this warrant will ever be executed upon you is uncertain.

What is certain, however, is that it is extremely important for you to maintain and comply with the terms of your grant of voluntary departure. If you don't you will be barred for a period of at least 10 years from obtaining any immigration benefits in the United States. Said bar originates from the Immigration and Nationality Act and has been developed through binding Board of Immigration Appeals case law.

So, how can one maintain and comply with voluntary departure status without having to leave the United States? Contrary to popular opinion, both within and without the legal community, the timely filing of a motion to reopen with the trial or appellate courts does not toll the voluntary departure period. And, if you were once before the immigration court, jurisdiction (for all intents and purposes) remains with the court. What this means is that even if you marry an American citizen, file for adjustment of status and receive an interview notice based on that application, if you attend the interview, you are likely to be arrested by immigration officers. In most cases, you will not be afforded a new hearing. Instead, the government will simply "reinstate" the old order against you.

Even if applications for relief are appropriately prosecuted and filed before the court with a timely motion to reopen, a request for extension of voluntary departure from the Department of Homeland Security's Bureau of Immigration and Customs Enforcement, formerly known as the Detention and Removal Branch, still must be made. One's ability to obtain such extensions is dependent upon a number of factors, including but not limited to: any prior extensions granted and the reasons for those requests. For example, if your lawyer told an officer of the BICE that you needed and extension in order to gather your belongings in anticipation of your departure and then another request is made for the purpose of potential relief, your request is likely to be declined because of what appears to be a lack of honesty and respect for the system.

Be candid throughout the process. Candor and honesty starts with the attorney that is representing you. If your attorney has expressed a willingness to comprise his integrity for you or suggested that you should do the same, they will be known by the government to have done so in the past. And, your request for an extension of voluntary departure status will be denied.

Sometimes, there will be relief for you during your period of voluntary departure: marriage, old priority dates becoming current, a labor certification being issued. If relief is available to you, you can file a motion to reopen proceedings. If the motion is untimely, the Office of the Chief Counsel can join in a request that proceedings be reopened-jointly filed motions to reopen and motions to reopen are neither limited in time or number. But, if you failed to comply with the terms of your voluntary departure status, the Office of the Chief Counsel will not join in your request. In fact, they are legally prevented from doing so.

In short, if you fail to comply with the terms of your voluntary departure status, you are likely to be prevented from ever obtaining permanent residence in the United States. In this situation, you will be required to depart the United States and process any applications you may have, at the Consulate in Manila. In this event, if you are allowed to return to the United States, it will not be any time soon, if at all. The importance of maintaining your status cannot be overstated.

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