Can my client be granted voluntary departure if she has been unlawfully present for more than 180 days?
A. Yes. She may be inadmissible but this does not affect her eligibility for voluntary departure. In fact, in one of the weird twists of the IIRAIRA, she must prove one year of physical presence to obtain voluntary departure at the conclusion of removal proceedings. See INA section 240B(b)(1)(A). Some or all of this one year of physical presence might well be considered “unlawful presence”.
