Voluntary Departure in U.S. Immigration Law: A Strategic Option in an Era of Intensified Enforcement

Voluntary departure (VD) is a statutory mechanism that allows certain noncitizens to leave the United States at their own expense within a strict time window, potentially avoiding entry of a removal order on the record if they comply with all conditions and depart on time (INA § 240B, 8 U.S.C. § 1229c).  In practice, VD is not merely “agreeing to go home”; it is a structured legal outcome that can require early procedural concessions (including, in many pre-hearing cases, a waiver of appeal), proof of ability and intent to depart, and adherence to deadlines that, if missed, trigger civil fines and a 10-year bar on major forms of relief (8 U.S.C. § 1229c(d)).  VD’s strategic value increases in systems where detention is expanding and bond access is narrowing: reporting on February 12, 2026 found detained-case VD reached record levels while ICE detention hit historic highs and favorable bond rulings dropped sharply.  This blog is general practitioner guidance as of February 12, 2026 and assumes no client-specific facts.

What voluntary departure is and why it matters

VD is authorized by INA § 240B. At a high level, it is discretionary permission to depart voluntarily “at the alien’s own expense” either before removal proceedings finish (with up to 120 days to depart) or at the conclusion of proceedings (with up to 60 days to depart).  EOIR’s own public-facing guidance explains VD in plain terms as leaving within a specific time “to avoid a deportation order.”  The “avoidance” is often the point: a removal order can carry independent immigration consequences, so a timely VD departure can preserve future options—especially where a future legal pathway exists—though it does not “wipe the slate clean” for other inadmissibility grounds (including those triggered by departure after unlawful presence, depending on the client’s history). 

Eligibility and requirements across the three main pathways

In immigration court, “pre-hearing” VD is governed by the pre-conclusion framework under 8 C.F.R. § 1240.26(b), implementing the INA § 240B(a) track.  This route is procedurally demanding by design: the respondent must request VD prior to or at the master calendar hearing when the case is initially calendared for a merits hearing, must withdraw other applications for relief, must concede removability, and must waive appeal of all issues.  The regulation also makes criminal and security bars explicit: the respondent must not have an aggravated-felony conviction (crime described at INA § 101(a)(43)) and must not be deportable on certain security-related grounds.  Importantly, absent a DHS stipulation, the immigration judge generally cannot grant pre-conclusion VD more than 30 days after that initial master calendar hearing, which means counsel must evaluate VD early—often while still investigating relief eligibility. 

“Post-hearing” VD is the post-conclusion track tied to INA § 240B(b). It is narrower: the statute requires at least one year of physical presence immediately before service of the Notice to Appear, at least five years of good moral character, and no aggravated felony / specified security-based deportability.  The respondent must also establish, by clear and convincing evidence, the means to depart and intent to depart—an often overlooked requirement that turns VD into a financially and logistically evidence-driven request.  The statutory maximum period to depart is 60 days. 

Separately, DHS can grant “administrative” VD in lieu of proceedings through designated officers under 8 C.F.R. § 240.25.  DHS may attach conditions—including a bond, continued detention pending departure, and “removal under safeguards”—and must issue the decision in writing on Form I‑210.  DHS can extend the time, but the total time to depart (including extensions) cannot exceed 120 days, and there is no administrative appeal from a DHS denial (though the person can still seek VD from the immigration judge if in proceedings). 

Procedural mechanics, deadlines, bonds, fines, and the “failure to depart” cliff

VD operates with built-in enforcement leverage: immigration judges grant VD with conditions and—critically—can trigger automatic vacatur and immediate effectiveness of an alternate removal order when conditions are not met. For pre-conclusion VD, EOIR regulations allow the judge to require presentation of a passport or travel document; if the respondent cannot produce documentation immediately, the judge may grant up to 120 days but require the respondent to secure and present documentation within 60 days (subject to DHS extension). If documentation is not presented by the deadline (or extension), the VD order “shall vacate automatically” and the alternate removal order takes effect. 

For post-conclusion VD, the bond regime is often determinative. EOIR’s regulation requires a VD bond “in no case less than $500,” and the judge must advise the respondent that the bond must be posted with the ICE Field Office Director within 5 business days of the order.  ICE may hold the person in custody until the bond is posted.  If the respondent appeals, proof of bond posting must be provided to the BIA within 30 days of filing the appeal or the BIA will not reinstate VD in its final order—a procedural trap that can convert a “safe exit” into a removal-order posture.  EOIR’s standardized VD notice also reflects a rebuttable presumption that the civil penalty for failure to depart is $3,000 (within the statutory range), underscoring that penalties are not theoretical. 

Statutorily, the failure-to-depart consequences are severe. If a person “voluntarily fails” to depart within the VD period, INA § 240B(d) imposes a civil penalty of $1,000 to $5,000 and makes the person ineligible for 10 years for VD and for key relief such as cancellation of removal and adjustment of status (with certain VAWA-related protections).  The “voluntarily fails” language matters: in Matter of Zmijewska, the BIA treated “voluntary” as a limiting concept for applying the penalties when the failure to depart is not truly voluntary in the legally relevant sense. 

Finally, VD can collide with post-order litigation strategy. The Supreme Court in Dada v. Mukasey held that to protect the statutory right to file a motion to reopen, a person must be permitted to withdraw a request for VD before the VD period expires.  EOIR’s regulations now operationalize this by providing that filing a motion to reopen or reconsider during the VD period automatically terminates VD and makes the alternate removal order effective immediately, while also specifying that the INA § 240B(d) penalties do not apply in that circumstance. 

Advantages and disadvantages for clients in detained and non-detained contexts

The principal advantage of VD—when completed on time—is avoiding a removal order on the record, which can materially improve the client’s ability to pursue lawful return in the future compared with departing under a removal order (a theme emphasized in NIJC’s practitioner-oriented VD guide).  VD can also be the most pragmatic option where meritorious relief is unavailable and the client seeks to minimize time in detention or avoid the cascading consequences of a deportation order. 

The disadvantages are concentrated in lost process and high-stakes compliance risk. Pre-conclusion VD often means relinquishing relief applications and waiving appeal.  Post-conclusion VD compresses the timeline to 60 days and imposes strict bond deadlines that can be hard to meet for detained clients who lack funds, documentation, or reliable support networks.  And even “successful” VD can still trigger other inadmissibility consequences upon departure (for example, unlawful-presence bars may apply depending on accrued unlawful presence and timing), meaning the practitioner’s counseling must integrate consular-processing realities rather than treating VD as a standalone solution.  In detention, coercion and despair are recurring concerns: the February 12, 2026 reporting that grounded this post described people choosing VD amid overcrowding, worsening conditions, and shrinking bond prospects, and included accounts that the experience can feel punitive even when labeled “voluntary,” including restraints during transport. 

Strategic value under a second Trump administration: why VD may be rising

VD is increasingly shaped by enforcement architecture rather than purely legal merit. CBS News reported on February 12, 2026 that 28% of completed detained removal cases ended in VD “last year,” and that the share rose nearly every month in 2025, reaching 38% in December; it also reported roughly 73,000 people in ICE detention in mid‑January and a decline in favorable bond rulings from 59% in 2024 to 30% in 2025.  In a system where detention is prolonged and bond is less attainable, VD often becomes the only near-term path to release from custody—even for clients who might otherwise prefer to litigate. 

Bond policy uncertainty is central to this shift. Matter of Yajure Hurtado (BIA 2025) addressed whether an immigration judge has authority to conduct a bond hearing for a respondent present without admission, reflecting a broader move toward restricting IJ bond jurisdiction for certain categories.  Yet federal litigation has pushed back: in Maldonado Bautista, a federal district court’s final judgment vacated DHS’s July 8, 2025 “Interim Guidance Regarding Detention Authority for Applicants for Admission,” declared class members detained under 8 U.S.C. § 1226(a) rather than mandatory detention under § 1225(b)(2), and recognized entitlement to bond consideration and (if not released) custody redetermination hearings before an immigration judge.  The practical takeaway for counsel is that VD’s strategic value will remain volatile: where detention is effectively mandatory (or bond is inaccessible in practice), VD may look like the only lever to end custody; where bond access is restored via litigation outcomes, VD may revert to a more traditional role as a negotiated, record-preserving alternative for clients who can realistically depart on time and benefit from avoiding a removal order. 

If you have questions about your immigration case, do not hesitate to contact us for more information today.