Voluntary departure at master hearing: who qualifies and what if you're an arriving alien

If you are in removal proceedings, the difference between an order of removal and voluntary departure can shape your entire immigration future. Many people in immigration court have never heard of voluntary departure — or assume they cannot get it. Understanding who qualifies, and what actually happens in courtrooms today, can help you make informed decisions before your next hearing.

What the attorney says

According to immigration attorney Ilya Fishkin (NY Bar, 20+ years of practice), voluntary departure is something judges routinely grant at master hearings — even in cases where the law might seem to cut against it.

One important example involves people who entered the United States on parole, known legally as arriving aliens. Under the law, arriving aliens are not entitled to voluntary departure. The legal reasoning is rooted in a concept called a "legal fiction": even though an arriving alien is physically present inside the United States, from a legal standpoint they are treated as if they are still standing at the border. Because of this classification, the statute does not grant them the right to voluntary departure.

However, attorney Fishkin notes that in practice, judges grant voluntary departure to arriving aliens anyway — despite the fact that the law does not require them to do so. This is a meaningful distinction: what the law says on paper and what actually happens in immigration court are not always the same thing. Fishkin also points out that under the law, a person who entered on parole has a 30-day window to receive that parole. In court, however, voluntary departure is still being granted to this group regardless.

What to do

Because the gap between the law and courtroom practice is real but not guaranteed, here is what you should keep in mind:

• Do not assume you are automatically disqualified. If you entered on parole and consider yourself an arriving alien, do not rule out voluntary departure without speaking to an attorney first. Judges have discretion, and attorney Fishkin's experience shows they do exercise it in favor of arriving aliens.
• Attend your master hearing prepared. Voluntary departure can be requested at the master hearing stage. Knowing this option exists — and asking about it — matters.
• Consult an immigration attorney before your hearing. The difference between a grant of voluntary departure and a final order of removal has long-term consequences for future immigration benefits. An attorney can assess your specific situation and advise whether to request voluntary departure or pursue another path.
• Do not ignore the legal fiction issue. If you are an arriving alien, understand that your eligibility is not guaranteed by statute. The fact that judges grant it anyway is a practice trend, not a legal right — which means it can vary by judge and jurisdiction.

FAQ

Q: What is voluntary departure and why does it matter? A: Voluntary departure allows a person to leave the United States on their own rather than being formally removed. Attorney Fishkin confirms it is commonly granted at master hearings. It generally has less severe long-term immigration consequences than a removal order.

Q: I entered the U.S. on parole — am I an arriving alien, and can I still get voluntary departure? A: Yes, if you entered on parole, you are classified as an arriving alien under immigration law. Legally, you are treated as if you are still at the border, even if you are physically inside the country. By statute, arriving aliens are not entitled to voluntary departure. However, attorney Fishkin says that in practice, immigration judges grant voluntary departure to arriving aliens anyway.

Q: Is voluntary departure at a master hearing guaranteed for arriving aliens? A: No. Attorney Fishkin is clear that the law does not entitle arriving aliens to voluntary departure. Judges grant it as a matter of discretion, not legal obligation. This means outcomes can differ. Speaking with an immigration attorney before your hearing is the safest step you can take.

Based on an interview with immigration attorney Ilya Fishkin, NY Bar. This information is for general purposes only and is not legal advice.