Atty. Lourdes Tancinco (2)

Immigration Round Table

Voluntary Departure of Undocumented Immigrants

 

Given the restrictive U.S. immigration policy and failure to pass a comprehensive immigration reform law, many Pinoy immigrants who are still in unlawful status are considering voluntarily departing from the United States to return to the homeland. What will it take for one to voluntarily depart the United States after overstaying for many years? What are the consequences of going through voluntary departure?

Teresita arrived in the United States in 2008 using a visitor’s visa. She overstayed in the United States and worked without legal authorization. After her visa expired, she worked as a caregiver for elderly patients.

After 7 years, Teresita finally made a decision to return to the Philippines. Her children are all grown up and the money she earned taking care of the elderly helped her young children finish their college education. Lately, she realized that she has a limited chance to legalize her stay, and lost hope that prospective changes in policy on undocumented immigrants would ever occur soon. Teresita is confident about her decision to depart and return to her family. She wants to know what steps to take and the effect of her departure on her future visa applications.

Voluntary Departure

Voluntary departure happens when an undocumented immigrant returns to his home country at his own expense without the need for government enforcement or deportation order.

Voluntary departure refers to a situation where the agencies such as the Department of Homeland Security or the Immigration Courts are not involved in the individual’s decision to depart from the United States. A Filipino national who is undocumented may simply purchase a one way ticket back to the homeland, carry a valid passport and then board the plane for the flight back to the Philippines. The US Department of Homeland Security does not need to be notified about the departure neither is there any penalty paid upon departure.

From a legal perspective, however, voluntary departure is used as a form of relief either in court or before the U.S. Department of Homeland Security. Examples of individuals who go through voluntary departure are airline passengers who are found inadmissible at the port of entry and depart voluntarily the same day of their arrival.

There is no negative legal consequence of a voluntary departure provided that the person who departed did not commit fraud or overstayed for more than 6 months.
In the case of Teresita, there is a legal consequence of her departure even if she departs of her own volition. Since she has resided in the United States for more than one year, under the 3-10 year bar rule under the U.S. immigration law, she is barred from returning to the U.S. for 10 years.

Considering the increase in the number of deportations and the gridlock in the U.S. Congress to fix the broken immigration system, it is not surprising that we will be witnessing individuals in unlawful status who will voluntarily leave the United States. This is also a very likely scenario especially if the controversial Republican primary contender wins the election.

(Atty. Lourdes S. Tancinco is a partner at Tancinco Law Offices, a San Francisco based law firm and may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it., facebook.com/tancincolaw, www.tancinco.com or 1-888-930 0808)

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Know Your Rights in Case of ICE Arrest

By Atty. Lou Tancinco

At the recently concluded American Immigration Lawyers Association conference held at New Orleans, representatives from the Immigration and Customs Enforcement indicated the lack of detention centers and beds. It was mentioned several times, that Trump’s policy on interior enforcement is being executed and they expect increase in apprehension.
If a non-U.S. citizen who is without legal status is arrested by ICE agent, what steps may be taken? What rights if any do they have at the time of arrest?
Below are the “Know Your Rights” information being disseminated by Immigration Legal Resource Center and certain non-profit organizations, which may be asserted if the inescapable ICE visit or arrest takes place.

You have the right to remain silent.
You can assert your fifth amendment right. You can refuse to speak to an ICE agent. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Say that you want to remain silent until you speak with a lawyer.

You have the right to demand a warrant before letting anyone into your home.
The ICE agent may not enter your home without a warrant. You do not have to give permission for him to enter. It is okay not to open your door unless the agent shows you the warrant. If the warrant is presented to you, ask the agent to slip it under the door or through the window. Make sure it is signed by a judge with your correct name, address and date of birth.

You have the right to speak to a lawyer and the right to make a phone call.
It is important to have your attorney’s phone number handy. You will be entitled to make a phone call. If you do not know your attorney’s number, call a trusted friend or relative to coordinate with your attorney.

You have the right to refuse to sign anything before you talk to a lawyer.
There will be some documents that will be presented to you for signing after you are apprehended and taken into custody. Do not sign anything. If you sign without understanding the nature of the document, it is possible that you are signing a waiver of your rights to a lawyer or to a hearing. And if you waive these rights, it may result in your immediate removal without a hearing.

You have the right to refuse to show any documents before speaking with a lawyer.
When you are visited by an ICE agent, you do not have to give permission to search any of your belongings unless there is a warrant. You can ask to speak with a lawyer before you submit any documentation. Each case of an unauthorized individual is distinct and all non-U.S. citizens must be vigilant about their rights. During these challenging times, a legal advice from a professional immigration attorney becomes indispensable to figure out what legal options may still be available.

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