The presence of illegal aliens in the United States is an issue of increasing concern to the American public and to Federal, state, and local policymakers. The Immigration and Naturalization Service (INS) estimates that 5 million illegal aliens currently live in the United States and that the illegal alien population grows by about 275,000 each year. INS's enforcement mission includes removing aliens living in the United States who have either entered the country illegally or who entered by legal means but overstayed their visas.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in response to ongoing concerns about illegal immigration.1  The new legislation imposed stricter rules affecting aliens attempting to enter the United States illegally and illegal aliens living in the United States. IIRIRA included new restrictions in the rules for the voluntary departure process.

In this inspection, we reviewed how INS district officers and Executive Office for Immigration Review (EOIR) immigration judges implement voluntary departure. We sought to determine whether INS district officers and immigration judges adequately establish aliens' eligibility for voluntary departure, and whether aliens granted voluntary departure actually leave the United States.

INS is the primary Federal agency responsible for the enforcement of U.S. immigration laws and regulations. The INS Office of Field Operations directs operations in INS's 33 districts, where district officers, among many other duties, grant voluntary departure. EOIR, a Department of Justice agency separate from INS, interprets immigration laws and regulations and conducts administrative hearings and appellate reviews. EOIR is not an enforcement agency; rather, immigration judges adjudicate individual immigration cases according to their merit. EOIR's 220 immigration judges preside over removal proceedings in 52 courts throughout the United States and grant voluntary departure to the aliens they consider eligible.

Voluntary Departure

Voluntary departure is a process by which an illegal alien who would otherwise be removed (formerly referred to as deported) or granted other forms of relief agrees to leave the country voluntarily.2   A voluntary departure grant enables aliens to avoid the penalties and stigma of removal while potentially saving the U.S. Government detention and removal costs. When an alien has been ordered removed, that alien may not legally enter the United States or receive any other immigration benefit for 10 years.

Voluntary departure allows aliens to avoid the 10-year ban on re-entry and receiving benefits by agreeing to depart the United States voluntarily, thus carrying no impediment to legally returning to the United States. Immigration law includes no limit on the number of times that an alien may receive voluntary departure, as long as the alien actually leaves the United States within the specified time frame. However, any alien who receives a voluntary departure grant and fails to depart within the specified time frame is ineligible for a period of 10 years for certain forms of relief, including another grant of voluntary departure, cancellation of removal, and adjustment of status.3

Aliens who receive voluntary departure either entered the United States illegally, or in some other way violated their immigration status. Many entered the United States by crossing the Mexican or Canadian border, on foot or in vehicles, and avoiding inspection by an immigration inspector. A smaller number entered illegally by ship. Some of those who entered illegally by land or sea may have paid alien smugglers for their passage into the United States. Other aliens who receive voluntary departure entered the country legally with a visa, usually by air, but remained past the date on which they were required to leave; INS calls these aliens "visa overstays."4   Aliens may also fail to comply with the conditions of their immigration status (e.g., conditions regarding their right to employment). Regardless of how they entered the country, all aliens receiving voluntary departure are illegally in the United States and could be removed.

Both EOIR and INS grant voluntary departure to illegal aliens; however, they use different terminology to refer to voluntary departure. For the purposes of this report, we use the term voluntary departure to describe the alternative to removal granted by either INS district officers or EOIR immigration judges. EOIR uses the term voluntary departure to describe the alternative to removal granted by immigration judges. INS refers to most voluntary departures granted by INS district officers and Border Patrol agents as voluntary returns. Despite differences in terminology, immigration judge-granted voluntary departures and INS-granted voluntary returns are both forms of voluntary departure.

Who Grants Voluntary Departure?

EOIR immigration judges and INS district officers grant voluntary departure to illegal aliens.5 Immigration judges grant voluntary departure in EOIR removal proceedings. During removal proceedings, aliens often appear before an immigration judge to request voluntary departure, asylum, or some other form of relief from removal (see flow chart, "The EOIR Removal Proceedings Process," in Appendix A). In each removal proceeding case, an INS trial attorney, who represents the U.S. Government, and the alien or the alien's attorney make arguments and present evidence. Immigration judges make their decisions to order aliens removed or grant them some form of relief by weighing the charges, facts, and issues of law presented to them by the attorneys. A voluntary departure grant from an immigration judge includes a specific date by which the alien must leave the United States. Unless the alien has been detained by INS during the removal proceedings, the alien must depart unescorted and at his or her own expense by the voluntary departure date.

In fiscal year 1997, immigration judges issued 170,124 decisions in deportation or removal cases. That same year, immigration judges granted voluntary departure to 31,099 removable aliens, representing 18 percent of all decisions in removal proceedings (see Figure 1).6

Figure 1.  Immigration Judge Decisions - FY 1997

Source: EOIR Statistics

In addition to the voluntary departures granted by immigration judges in EOIR removal proceedings, INS district officers grant voluntary departure (referred to by INS as voluntary return). Most of these aliens, unlike those who receive voluntary departure grants from immigration judges, are removed under safeguards, meaning that they are escorted to land ports or airports by INS district office personnel. A smaller number of aliens are released to return to their home countries at their own expense, not under INS safeguards. Removals under safeguards typically involve the transportation of Mexicans to the border on INS buses or Justice Prisoner and Alien Transportation System (JPATS) planes within days of their apprehension.7   INS uses commercial airline flights to return most non-Mexicans to their native countries. (See flow chart, "The INS Voluntary Departure Process," in Appendix B). In fiscal year 1997, INS district officers granted voluntary departure to nearly 100,000 illegal aliens from the interior of the United States.8

How IIRIRA Changed Voluntary Departure

IIRIRA changed the rules for voluntary departure. Prior to IIRIRA, INS district officers and immigration judges used voluntary departure to allow certain aliens to remain in the United States for various reasons, including humanitarian concerns (family emergencies, medical reasons, school attendance) and to allow aliens the time to pursue legitimate immigration claims without having to leave the country. Aliens received grants of voluntary departure allowing them up to one year to depart, and some aliens remained in the country for years by requesting and receiving annual extensions of their voluntary departure grants.

As under the old law, IIRIRA precludes aggravated felons from receiving grants of voluntary departure. However, the new law expanded the crimes that INS defines as an aggravated felony (see Appendix D). INS district officers perform criminal history checks using the Federal Bureau of Investigation's (FBI) National Crime Information Center (NCIC) and other state and Federal data bases to determine which aliens have been convicted of felonies. Congress also added a provision to the new law specifically banning voluntary departure grants for any alien who has engaged, is engaging, or at any time after entry engages, in terrorist activity.9 Determining an alien's history of terrorist activity is more difficult than obtaining information on criminal history.

In addition to the prohibitions against aggravated felons and terrorists, aliens who receive voluntary departure grants from immigration judges must meet further eligibility criteria. These criteria vary depending on when in the removal proceeding process the judge grants voluntary departure. IIRIRA created a new distinction between voluntary departure grants prior to the conclusion of removal proceedings versus at the conclusion of removal proceedings. Prior to the conclusion of removal proceedings, an alien must:

At the conclusion of removal proceedings, aliens do not need to meet the above criteria to qualify for voluntary departure. Instead, they must demonstrate:

IIRIRA specifically incorporates new penalties and explicitly authorizes conditions on voluntary departure grants to help ensure aliens' departures. According to the new law, an alien who fails to depart voluntarily by the date specified is subject to a civil penalty of between $1,000 and $5,000. IIRIRA also raised the prohibition on receiving other forms of immigration benefits from 1 to 5 years to 10 years for aliens who fail to obey their voluntary departure orders. Conditions had not been specifically authorized under the prior law; however, the new law permits INS district officers and immigration judges to attach any conditions they deem necessary to ensure departure.

Congress also established a strict time limit for voluntary departure grants in IIRIRA. Under the new time limit, INS district officers and immigration judges may allow aliens no more than 120 days to leave the United States and may not grant extensions. Those aliens who request voluntary departure from an immigration judge at the conclusion of removal proceedings may only receive up to 60 days to depart the country rather than the 120 days permitted for voluntary departure granted by an INS district officer or by an immigration judge prior to the conclusion of proceedings. In addition, aliens can no longer work legally in the United States after receiving voluntary departure grants.10  Prior to IIRIRA, INS permitted aliens to work until their required departure date.

In one respect, Congress made the voluntary departure eligibility requirements for aliens in removal proceedings more lenient. Prior to IIRIRA, to be eligible for voluntary departure, aliens in removal proceedings had to prove that they had exhibited good moral character for the five years preceding their application for voluntary departure, and that they had the willingness and ability to depart. As a result of IIRIRA, aliens no longer must meet those tests prior to the conclusion of removal proceedings.

Scope and Methodology

We reviewed the use of voluntary departure by INS district officers and EOIR immigration judges. We conducted field site visits in March and April of 1998 in Los Angeles, CA, San Francisco, CA, Washington, D.C., and New York, NY. At each location, we interviewed INS and EOIR officials, reviewed INS and EOIR files, and observed removal proceedings. We selected three different samples in order to test whether aliens granted voluntary departure by INS district officers and immigration judges were eligible to receive it and actually left as ordered. Appendix C contains a thorough discussion of our inspection methodology.

1 The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Public Law 104-208, 110 Stat. 3009 (September 30, 1996), amended the Immigration and Nationality Act (INA), which was first passed in 1952. INA 240B contains the legal authority for voluntary departure. The regulatory requirements for voluntary departure can be found in Title 8 of the Code of Federal Regulations, 240, Subpart C.

2 Here, and throughout the report, we will use the term "removal" in place of "deportation" because of changes in terminology due to the 1996 amendments to the INA.

3 Certain aliens, who would otherwise be removable, may be eligible for cancellation of removal under INA 240A. This type of relief from removal concludes removal proceedings against an alien and grants lawful permanent resident status to the alien. Adjustment of status under INA 245 is a form of relief that is separate from cancellation of removal, but a grant of either form of relief results in permanent resident status.

4 The September 1997 Office of the Inspector General, Inspections Division report, Immigration and Naturalization Service Monitoring of Nonimmigrant Overstays, number I-97-08, considers the problem of nonimmigrants who enter the country with a legal visa but remain past the date on which they were required to leave.

5 Border Patrol agents also grant voluntary departures (voluntary returns in INS terminology). In fiscal year 1997, Border Patrol agents granted 1.3 million voluntary departures to illegal aliens. Most of these aliens were Mexicans apprehended on the southwest border of the United States who were immediately returned across the border. We did not review Border Patrol grants of voluntary departure in this inspection because the Border Patrol's operations are significantly different from the practices studied here.

6 In fiscal year 1997, immigration judges still ruled on many pre-IIRIRA deportation cases as well as post-IIRIRA removal cases. In addition to the 31,099 voluntary departure grants, these decisions included 110,222 deportations or removals, 14,884 grants of relief, 13,831 terminations, and 88 decisions classified by EOIR as "other." These numbers do not include other completions such as administrative closings, changes of venue, transfers, and temporary protective status.

7 JPATS, operated by the United States Marshals Service, is an air transportation system available to INS, the Bureau of Prisons, and the United States Marshals Service for the transportation of aliens or prisoners. INS districts can use JPATS flights for returning aliens to their native countries or moving them to detention centers within the United States.

8 INS defines an illegal alien "in the interior" as an alien who has been present in the United States for 72 hours or more, regardless of where in the country the apprehension took place.

9 The previous law prohibited aliens connected to "certain offenses touching the national security" from receiving voluntary departure.

10 Aliens participating in the Family Unity Program are the only exception to the 120-day time limit for voluntary departure. The Family Unity Program allows legal aliens to apply for certain immigration benefits for their spouses or unmarried children. Family Unity Program participants are eligible to receive voluntary departure grants for periods of up to two years. INS also permits aliens participating in the Family Unity Program to work during their voluntary departure period. Section 301 of the Immigration Act of 1990, Public Law 101-649, authorized the Attorney General to temporarily stay deportations and issue work authorizations when in the interest of maintaining family unity. Implementing regulations are in Title 8 of the CFR, Part 236, Subpart B.