Pre-Conclusion Voluntary Departure: What You Give Up, the 120 Days and How the Grant Can Become a Removal Order

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A green Voluntary Departure book beside a conditions folder, brown document wallet and brass hourglass.

Pre-conclusion voluntary departure lets an immigration judge allow you to leave the United States at your own expense, within up to 120 days, before your removal case is decided. Under 8 C.F.R. § 1240.26(b), you ordinarily must ask no later than the master calendar hearing at which the case is first set for a merits hearing. You must also concede removability, withdraw every other request for relief and waive appeal. Leaving on time keeps you from departing under a removal order. It does not erase a separate unlawful-presence bar, and a missed condition can turn the grant into a removal order.

For the end-of-case bond, proof to the Board of Immigration Appeals and petitions for review, see our voluntary-departure overview.

Who can ask, and when

The statute, 8 U.S.C. § 1229c(a), excludes people deportable for an aggravated felony or terrorist activity. The regulation is stricter: no aggravated felony conviction and no deportability under any part of the security-related grounds in section 237(a)(4). Three other rules also close the door:

The judge may not grant pre-conclusion departure more than 30 days after the master calendar hearing at which the case is first set for a merits hearing unless DHS stipulates, which it may do any time before the case is completed. The grant remains discretionary.

What you give up

Section 1240.26(b)(1)(i) requires you to make no other request for relief, or to withdraw any already made, such as asylum or cancellation of removal, before the grant. You must also concede removability and waive appeal of all issues. Weigh any application you would withdraw before that hearing; the waiver leaves no appeal to the Board.

The 120 days, the bond and the passport

The judge may set a period shorter than 120 days. Only DHS can extend it, and under § 1240.26(f) the total, with any extension, still cannot exceed 120 days.

A bond is optional at this stage. The judge “may impose such conditions as he or she deems necessary” to ensure timely departure, including a voluntary-departure bond canceled on proof of departure.

The passport condition needs its own calendar. You must present to DHS, for inspection and photocopying, a passport or other travel document sufficient for lawful entry into the country you are going to, unless no document is needed or DHS already has it. If you do not yet have it but the judge is satisfied you are diligently trying to get it, § 1240.26(b)(3)(ii) allows a grant of up to 120 days on condition that you obtain the document and present it to DHS within 60 days. DHS may extend that 60-day period. If the document is not presented in time, the voluntary-departure order “shall vacate automatically.” The alternate order of removal then takes effect as if it had been in effect on the date of the judge’s order.

Calendar day 60 separately from the departure date, and keep proof of when you showed DHS the document. A post-decision motion to reopen or reconsider filed during the period ends the grant automatically and makes the alternate order of removal effective immediately; it does not extend the time to depart. The failure-to-depart penalties then do not apply.

What leaving on time protects, and what it does not

Every grant comes with an alternate order of removal. Under 8 U.S.C. § 1182(a)(9)(A)(ii), a person ordered removed, or who departed while a removal order was outstanding, is generally inadmissible for 10 years. The Form I-212 instructions list a person who received an immigration judge’s voluntary-departure order and “left the United States during the time period specified” among those who may not need permission to reapply. In our reading, a departure after the grant has ended or been vacated is a departure “while an order of removal was outstanding” under § 1182(a)(9)(A)(ii)(II). If the grant fails, our I-212 guide explains permission to reapply.

The unlawful-presence bar is separate. Section 1182(a)(9)(B)(i)(II) makes a person who was unlawfully present for one year or more inadmissible for 10 years after departure, however the departure occurred. Its three-year bar, for more than 180 days but less than one year of unlawful presence, applies by its terms only to a voluntary departure before proceedings begin. In our reading of the text, it therefore does not ordinarily reach a departure under a grant made in court. Have the unlawful-presence period counted before you trade away other relief for departure.

The cost of not leaving

If you voluntarily fail to depart within the period, § 1229c(d) imposes a civil penalty. The statute sets it at $1,000 to $5,000; as adjusted for inflation by 8 C.F.R. § 280.53(b)(3), the range is $1,992 to $9,970, and § 1240.26(l) presumes $3,000 unless the judge orders a different amount when granting departure. It also brings ten years of ineligibility for further voluntary departure, cancellation of removal, adjustment of status, change of nonimmigrant status and registry, with a narrow VAWA exception.

Pre-conclusion versus post-conclusion

Call (949) 343-9735 or email office@mishrax.com.

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