A grant of voluntary departure allows removable aliens to leave the U.S. within a prescribed timeframe at their own expense. Voluntary departure also allows removable aliens to avoid some of the consequences of a removal order. For example, someone who voluntarily departs is not automatically barred from legally returning to the U.S. at a later date.

A respondent may request voluntary departure throughout the removal process, but the requirements become more rigorous as the process proceeds. As a general matter, aliens found to be removable due to an aggravated felony (as defined in immigration law) or terrorist activities, or to otherwise be a security risk to the U.S. are ineligible for voluntary departure at any stage.

Aliens may request voluntary departure at their master calendar hearing before the immigration judge. When aliens ask for voluntary departure prior to the conclusion of removal proceedings, they must give up their right to any other form of relief from removal and waive their right of appeal to the Board of Immigration Appeals (BIA), among other conditions.

An immigration judge may grant up to 120 days to depart. If travel documents are not immediately available to an alien, an immigration judge may grant up to 120 days to voluntarily depart on the condition that the alien secure travel documents and present them to Department of Homeland Security (DHS) within 60 days. If the alien does not produce the travel documents, the voluntary departure order is vacated and the alien is ordered removed from the U.S.

Aliens may also request voluntary departure from the immigration judge at their individual hearing. Aliens requesting voluntary departure at this stage must meet several requirements. They must:

• have been physically present in the U.S. for at least one year before the date DHS issued the Notice to Appear (NTA);

• have been a person of good moral character for the five years preceding the request;

• not be deportable as an aggravated felon or terrorist;

• demonstrate the ability to leave the U.S. at their own expense (including the ability to present valid travel documents); and

• demonstrate the financial ability to post a bond of no less than $500.

The alien must also demonstrate that he or she warrants a favorable exercise of the court’s discretion. An immigration judge in this circumstance may grant up to 60 days for the alien to leave the U.S.

It is also important to note that aliens may request voluntary departure from DHS in advance of their first hearing before an immigration judge. In this circumstance, an alien may be required to depart immediately or be given up to 120 days to leave the U.S. The alien and DHS can agree to up to 120 days of voluntary departure at any time prior to the completion of the final hearing before the immigration judge.

In South Dakota, as in all states, voluntary departure is a provision under federal immigration law that allows removable aliens to leave the United States at their own expense within a specified period, which can help them avoid some of the negative consequences of a formal removal order, such as being barred from reentry for a certain number of years. Individuals convicted of aggravated felonies, involved in terrorist activities, or who pose a security risk are not eligible for voluntary departure. Requests for voluntary departure can be made at different stages of the removal proceedings. During the initial stage, at the master calendar hearing, an individual may request voluntary departure by forfeiting the right to apply for other forms of relief and the right to appeal, and if granted, they may receive up to 120 days to depart. At the individual hearing stage, the requirements are more stringent, including the need to have been physically present in the U.S. for at least one year prior to the Notice to Appear, demonstrating good moral character for the past five years, not having committed deportable offenses, and the ability to pay for their departure and post a bond of at least $500. If granted at this stage, the individual may receive up to 60 days to depart. Additionally, aliens may request voluntary departure directly from the Department of Homeland Security (DHS) before appearing in court, which could allow for immediate departure or a period of up to 120 days. It's important to note that while the specifics of the process are governed by federal law, local immigration attorneys in South Dakota can provide guidance based on the individual's circumstances and the current practices of local immigration courts.