As published in the Immigration Daily on October 27, 2020
Many deportable aliens utilize voluntary departure as a form of relief that allows them to leave the U.S. on their own in order to avoid the stigma of an order of removal on their record and certain bars to readmission, and eliminate risk of detention prior to departing the U.S.. During ordinary times, it is reasonably easy for a noncitizen who agreed to voluntary departure to leave the country within the time allowed to depart. As such, the penalties for not departing on time are understandably unforgiving. However, the U.S. government should consider leniency toward those who were granted voluntary departure during the time of coronavirus and not able to leave on time despite their best efforts.
Voluntary departure was codified in 1940 to help the U.S. government reduce costs on litigation by giving certain aliens an option to leave with less consequences on their future applications for immigration. Immigration Judges were given authority to schedule the alien’s departure date. When IIRIRA passed in 1996, IJs were divested of discretion in setting departure dates, and could only give a maximum of 120 days to an alien to depart under voluntary departure. This change was made with the goal of speeding up removal proceedings.
If an alien fails to depart by his/her voluntary departure deadline, he/she faces a plethora of harsh penalties including a final order of removal, civil fines of up to $5,000 and ineligibility for, among other things, adjustment of status, further voluntary departure, and cancellation of removal for 10 years. These severe penalties were enacted to deter aliens from violating their voluntary departure orders, and conceived in the context of relatively normal times where it would be easy to find a way out of the United States, and a failure to leave except for severe medical reasons was often viewed as a person flouting court orders and not making a legitimate effort to depart. In 2019, the last “normal” year, for instance, there was an average of 188,901 flights per day around the world. The world was inter-connected, and if one’s goal was just to leave the United States, that was easy to do. This would have certainly been doable in a 120 day period barring exceptional circumstances. By contrast, in 2020, many countries have closed or severely limited their borders to mitigate the spread of the virus. The number of daily flights cratered to approximately 64,523 on March 29 of this year with many cancellations due to travel bans and lack of passenger demand. Last minute cancellations on flights have become very common, and countries have enacted travel bans—some changing with high frequency so passengers could not know for sure whether they would be able to take their desired route until the day they board their flight. During the global peak of the pandemic, many countries did not even allow nationals of other countries to transit through their airports to reach a certain destination. As such, those with connections were often not allowed to board their flights as they would not be able to land at their connecting stops. Also, many countries, such as China, had and continue to have policies discouraging their nationals from moving back home during the pandemic. All of these factors have created an environment in 2020 in which departing the United States is far more difficult than any other time since the introduction of voluntary departure.
Since March 2020, booking a flight out of the U.S. and getting on it successfully has become a challenge layered with not only unpredictability but exorbitant costs. Take, for example, a national of China given 120 days to depart the U.S. in mid-February. In February, China and many other regions of Asia were the coronavirus hot spots. That national, very reasonably, could have decided to wait until the virus came diminished in China before departing the U.S.—as such, he/she would have pushed the booking window to sometime in April-June 2020. Then, once this national saw that the COVID situation in the U.S. became worse than that of China in March-April, then he/she decided to book a flight to China. To his/her dismay, the flight to China was canceled by the airline last minute as the flight operator decided to eliminate some flights due to lack of demand and budget cuts. Or perhaps the Chinese government compelled the airline to cancel that flight as it wanted to reduce flights from outside of the country to prevent the spread of the virus. Regardless, now it is May 2020 and he/she is stuck without a flight. He/she then books a flight to China leaving at the beginning of June, transiting through Taiwan (direct flights to China were already scarce at this time). However, the day before his flight, he/she is informed by the airline that he/she would not be able to get on the flight to transit in Taiwan because Taiwan is not accepting transit passengers. It is late May, and the Chinese national is stuck without a flight. At this point, his/her options are very limited. Chinese nationals are generally not allowed entry to many countries without visas (this is the case for the nationals of many countries). He/she must now fly to a country which will allow a Chinese national without a visa, and is allowing transit or entry during the coronavirus. At this point, all direct flights to China are booked out. All routes through connecting third countries must be researched as to whether they would allow a Chinese national to transit—and flights through countries that would allow transit are all booked out. At this point, the only options for this Chinese national are to fly to a country that would allow Chinese nationals without a visa, and would not bar him/her due to coronavirus restrictions. The option is to pay an exorbitant price to fly to a third country, one in which the Chinese national is a stranger, and in which he/she would not be able to get around. The options are therefore to either jeopardize safety in flying to unfamiliar territories or missing the voluntary departure date.
Voluntary departure was never intended to be such a challenge to a noncitizen to make the date or be barred from most forms of immigration relief for 10 years. Rather, it was seen as a plea deal option to expedite the country’s removal operations and provide a reasonable solution for a noncitizen to depart on his or her own to avoid many of the consequences of a deportation. In 2020 during the pandemic, departure from the country is a significant challenge on its own marred with unpredictability, cancellations at no notice, ever-changing travel rules of all countries, and exorbitant cost. As such, failure to meet the 120 day voluntary departure deadline during the COVID-19 pandemic should be forgivable, and certainly should not carry such harsh penalties as the inability to gain most immigration benefits and relief for the next 10 years, so long as the noncitizen is able to show that he or she undertook a good faith effort to leave on time.
The authority to alleviate the consequences of a violation of voluntary departure under the circumstances lies with Congress which wrote the law, the President through a possible executive order (since we have seen many statutes “trumped” by executive order in the past few years), or by DHS itself in extending an individual’s time to depart the US through devices such as satisfactory departure or deferred departure and divorcing the VD penalty until the end date of the other program’s extension. By whichever method, the present situation, although admittedly not affecting millions of people, should not stand.