What changed
INA § 240B, codified at 8 U.S.C. § 1229c, authorizes two distinct voluntary-departure tracks. The pre-conclusion track at § 240B(a) is available before the completion of removal proceedings; the maximum grant is 120 days, no bond is required by statute, and the respondent must withdraw all applications for relief other than VD. The post-conclusion track at § 240B(b) is available at the conclusion of proceedings; the maximum grant is 60 days, a bond of at least $500 is mandatory, the respondent must have been physically present in the United States for at least one year before the NTA, must have been a person of good moral character for the five years preceding the application, must not be deportable under INA §§ 237(a)(2)(A)(iii) (aggravated felony) or 237(a)(4) (security and related grounds), and must establish by clear and convincing evidence the means and intent to depart. The procedural framework is summarized in the EOIR Policy Manual, Part II, Chapter 4 (Hearings before Immigration Judges).
The regulatory framework at 8 C.F.R. § 1240.26 implements both tracks and adds operational details: the bond-posting deadline under § 1240.26(c)(3) is five business days from the IJ’s order, and failure to timely post the bond converts the VD order to an alternate order of removal. See Matter of Velasco, 25 I&N Dec. 213 (BIA 2010).
The Supreme Court’s intervention in Dada v. Mukasey, 554 U.S. 1 (2008), rewrote post-conclusion practice. Dada held that a respondent granted post-conclusion VD must be permitted to withdraw the VD request before the departure deadline expires in order to file a motion to reopen — because the alternative (filing the motion and being deemed to have overstayed VD) would have unfairly stripped the statutory motion-to-reopen right under INA § 240(c)(7). DHS later codified Dada’s holding in the 2008 amendments to 8 C.F.R. § 1240.26.
The penalties at INA § 240B(d) are severe and underappreciated. A respondent who fails to depart within the granted period (a) is subject to a civil penalty of $1,000 to $5,000, and (b) is ineligible for ten years for cancellation of removal, adjustment of status, change of nonimmigrant status, registry, and voluntary departure itself. See Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007); Matter of Dolores Garcia, 27 I&N Dec. 791 (BIA 2020).
Why it matters
The choice between pre-conclusion and post-conclusion VD is rarely just about days on the calendar.
Pre-conclusion VD trades the client’s other applications for a clean departure window. It is the right move when the underlying relief application is weak, the client wants to leave on their own terms, and the family or business has a meaningful use for an extra 120 days of legal status. It also has tactical value when the client is in detention: a pre-conclusion VD grant without bond can resolve the case at the master calendar and end detention faster than litigating to a final hearing.
Post-conclusion VD is the right move when the client wants to litigate the relief application to the end and treat VD as a fallback. The 60-day window is shorter and the bond requirement adds friction, but the relief applications stay alive through final hearing, and the IJ can grant VD as part of an unfavorable decision on the merits — preserving the option to depart voluntarily rather than be removed.
The Dada strategy — accepting post-conclusion VD and then timely withdrawing it to file a motion to reopen — is preserved by 8 C.F.R. § 1240.26(b)(3)(iii) and (e)(1), but the practice is operationally tight: the withdrawal must be filed before the VD deadline expires, and the motion to reopen must be filed within the same window or shortly thereafter. Missing the timing converts the VD into a removal order and triggers the § 240B(d) penalties.
The § 240B(d) bar is the trap nobody talks about until it bites. A client who fails to depart timely is ineligible for cancellation, adjustment, registry, and most other relief for ten years from the failure-to-depart date. This bar runs independently of the underlying removal order and survives subsequent re-entry. The single most expensive VD mistake in defense practice is granting a client VD and then losing track of the departure deadline.
Way forward
The § 240B operational checklist:
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Make the pre/post choice on the merits. Pre-conclusion if relief is weak and the client wants a clean window; post-conclusion if relief is strong enough to litigate to final and VD is the fallback.
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For pre-conclusion VD under § 240B(a), confirm the client is willing to withdraw all other applications and stipulate to removability. The grant is discretionary but typically routine if those conditions are met.
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For post-conclusion VD under § 240B(b), document the one-year physical presence, the five-year GMC, the absence of disqualifying convictions, and the means to depart. Establish “means” with bank statements, employment records, or a sworn statement; establish “intent” with travel preparations, a destination plan, and family or housing arrangements in the country of departure.
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Calendar the bond-posting deadline (five business days from the IJ’s order under 8 C.F.R. § 1240.26(c)(3)) the moment VD is granted. The bond is posted with ICE, not with EOIR. Confirm posting in writing.
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Calendar the departure deadline and a reminder ten days before expiration. Do not rely on the client to track it.
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If a motion to reopen becomes appropriate during the VD window, file the withdrawal of the VD request under 8 C.F.R. § 1240.26(b)(3)(iii) or (e)(1) before filing the motion. The Dada framework preserves the right but the procedural steps must be followed in order.
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Counsel the client in writing about the § 240B(d) bar: failure to depart timely triggers a $1,000-$5,000 civil penalty and a ten-year bar on most forms of relief. Memorialize the warning in the file.
Disclaimer
This article is general information about U.S. immigration law, not legal advice. Voluntary departure carries real consequences if the departure deadline is missed, and the choice between pre-conclusion and post-conclusion VD is fact-specific. Anyone considering VD should consult a licensed immigration attorney or a DOJ-recognized representative. Verify against the EOIR Policy Manual and the underlying statute and regulations before relying on any specific procedural rule.