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The Risks of Leaving the United States for Noncitizens
Contributor: Van T. Doan
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In light of increased immigration enforcement, many noncitizens are considering “self-deporting” or leaving the United States to return home or to another country. However, it’s important to have an understanding of the legal risks and consequences that can be involved with departing from the country. Depending on your legal status and the conditions of your presence, you could potentially be barred from returning for a certain period of time, face removal proceedings, or impact any pending application for relief before the United States Citizenship and Immigration Services (USCIS).
What are the Consequences of Leaving for Your Immigration Status?
Although it has been purported as a process that allows noncitizens to avoid detention or forced removal, there is no legal option called “self-deportation.” There also has not been a change in immigration law for those who voluntarily leave the country, despite the implementation of the CBP Home mobile app. The consequences of leaving for your immigration status remain the same: your departure may impact your ability to lawfully return to the United States in the future.
Notably, your legal status will determine whether you can return to the United States in the same status. Some may lose their status upon departure, such as individuals who have been granted parole. Other noncitizens may have status that allows them to travel abroad temporarily and return with the same status. For those with pending applications for relief before USCIS, the application may be deemed abandoned upon departure with some limited exceptions.
Grounds of Inadmissibility
It’s crucial to understand that in certain situations, noncitizens who entered unlawfully or overstayed a visa may trigger grounds for inadmissibility when they depart from the United States. This means you would not be permitted to return to the United States for a certain period of time. Some common inadmissibility grounds that are only triggered when the noncitizen leaves the United States include:
- Unlawful presence for 180 days: Noncitizens who have been unlawfully present in the United States for more than 180 days, but less than one year, trigger a three year unlawful presence bar.
- Unlawful presence for a year or more: A year or more of unlawful presence in the United States triggers a ten-year unlawful presence bar.
- Final removal order: If you left the United States with a final removal order, inadmissibility may be triggered in connection with the order. In such cases, you must either wait for the required timeframe to expire or seek an approved Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212). The period of inadmissibility triggered by departure with a removal order depends upon the specific conditions that triggered inadmissibility and can range from 5 years to 20 years.
In addition, there is a permanent bar in place for two specific groups of noncitizens. These include those who were unlawfully present for more than a year and attempted to re-enter without inspection, and those who left under a final removal order and re-entered (or attempted to re-enter) without inspection. These conditions trigger an inadmissibility period of ten years without the availability of a waiver. Those who trigger the permanent bar must remain outside of the United States for ten years or more and have an I-212 approved before they are permitted reentry with an immigrant or nonimmigrant visa.
What Happens if You Leave During Removal Proceedings?
If you are facing removal proceedings, decide to depart the United States on your own terms, rather than face the possibility of detention or removal, and fail to attend an immigration court hearing, in your absence, an immigration judge may issue an in absentia removal order.
Consequences of an in absentia removal order include inadmissibility for five to ten years, immediate removal from the United States, fines, and upon any attempts to re-enter the United States, an automatic reinstatement of the original removal order without a right to a hearing. For these reasons, it’s essential to attend all hearings and finalize your removal proceedings before departing the United States to avoid such complications.
Alternatives to a Removal Order
On the other hand, noncitizens who have a Notice to Appear (NTA) in immigration court, and attend the hearing may have several alternatives to the removal order available to them. These can include:
- Voluntary departure: If you qualify, leaving the United States under an order of voluntary departure would avoid a removal order on your record and help you avoid triggering the grounds for inadmissibility.
- Withdrawal of request for admission: Noncitizens who are “arriving” or detained may be eligible to seek a withdrawal of request for admission. This results in dismissal of the removal proceedings.
- Stipulating to a removal order: Stipulating to a removal order has the same legal consequences of any other removal order. This is not the same as a voluntary departure. Stipulating to a removal order may shorten the court process, but there is no guarantee of swift removal from the country.
If you’re a noncitizen planning on leaving the United States, it’s critical to prepare for the possibility of detention or removal, and develop a plan with your family. You should also make sure you and your family have the necessary travel and identity documents to return to your home country. Similarly, if you will be departing to a third country, you should ensure that you meet the requirements for entry and have the applicable documentation.
Contact an Experienced Immigration Attorney
If you have questions or concerns about leaving the United States, it’s crucial to consult with a knowledgeable immigration attorney who can best advise you based on your current status. To learn more about the risks of departure and how it may impact you and your family, contact us today.