Voluntary departure may preserve your future options. Understand the tradeoffs.

Voluntary departure under INA §240B is an alternative to a formal removal order. It allows a noncitizen to leave the United States at their own expense by a specified date, avoiding the legal consequences of a removal order — including bars on future reentry and potential criminal penalties for unlawful return.

Overview

Voluntary departure under INA §240B is an alternative to a formal removal order. It allows a noncitizen to leave the United States at their own expense by a specified date, avoiding the legal consequences of a removal order — including bars on future reentry and potential criminal penalties for unlawful return.

This page provides comprehensive legal information about voluntary departure as it applies to noncitizens in California. All content is authored by Jayson Elliott, J.D., a California-licensed attorney. The information is current as of April 2026 but immigration law changes frequently — verify all information with a licensed attorney before making legal decisions.

Removal proceedings affect millions of people across the United States. In California, the state’s immigrant-protective policies, including the California Values Act (SB 54), Penal Code § 1473.7, and the TRUST Act, provide additional layers of protection that do not exist in many other states. Understanding both federal immigration law and California-specific protections is essential.

The current enforcement environment has intensified deportation activity. ICE detention and removal operations have expanded, and immigration courts face unprecedented backlogs. Whether you are at the beginning of removal proceedings or have already received a removal order, understanding your legal options is the most important step you can take.

What to do if you face voluntary departure

Your Rights Under California Law

Noncitizens facing voluntary departure have important legal protections under both federal and California law.

Federal constitutional protections

The Due Process Clause of the Fifth Amendment applies to all persons in the United States, including noncitizens regardless of immigration status. You have the right to notice of the charges against you, the right to a hearing before an immigration judge, the right to present evidence and cross-examine witnesses, and the right to appeal an adverse decision.

California state protections

California provides additional protections through the California Values Act (SB 54), which limits state and local law enforcement cooperation with federal immigration authorities; the TRUST Act, which restricts immigration holds in California jails; Penal Code § 1473.7, which allows vacating criminal convictions where immigration consequences were not understood; and various state-funded legal services programs for immigrants facing removal.

Right to counsel

You have the right to an attorney in all immigration proceedings. While the government does not provide free counsel, California has invested in legal representation programs including the One California program and various county-funded deportation defense initiatives.

How California Law Applies

The legal standards applicable to voluntary departure are established by the Immigration and Nationality Act, implementing regulations, and decisions of the Board of Immigration Appeals and federal courts.

In removal proceedings, the burden of proof depends on the respondent’s status. For noncitizens who were admitted to the U.S., the government bears the burden of proving deportability by clear and convincing evidence. For noncitizens who were not admitted (such as those who entered without inspection), the burden shifts to the respondent to prove admissibility or eligibility for relief.

The Ninth Circuit Court of Appeals, which covers California, has issued numerous decisions on deportation defense issues that are often more favorable to immigrants than decisions from other circuits. Understanding Ninth Circuit precedent is essential for effective deportation defense in California.

The Legal Process

The legal process for voluntary departure follows established immigration court procedures administered by the Executive Office for Immigration Review (EOIR). All proceedings take place before an immigration judge, with a government trial attorney representing DHS.

Cases typically proceed through master calendar hearings (scheduling and preliminary matters) and individual merits hearings (presentation of evidence and testimony). The immigration judge renders a decision either orally at the conclusion of the hearing or in writing at a later date.

California immigration courts have among the longest backlogs in the country, with average wait times of two to four years in some courts. This delay, while difficult, provides time to build a strong defense and explore all available options for relief.

What Documentation Matters

Thorough documentation is critical in deportation defense. Key documents typically include:

• Notice to Appear and all court documents — The NTA, hearing notices, and any prior orders or filings.
• Evidence of physical presence — Leases, utility bills, tax returns, school records, medical records, and employment records demonstrating your time in the U.S.
• Family relationship evidence — Birth certificates, marriage certificates, photographs, and declarations from family members.
• Country conditions evidence — For asylum cases, reports from the State Department, human rights organizations, and country experts documenting conditions in your home country.
• Criminal court records — If applicable, complete records of any criminal cases including plea transcripts, sentencing documents, and any post-conviction relief orders.
• Character evidence — Letters from community members, employers, religious leaders, and others attesting to your character and contributions.

Frequently Asked Questions