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Washington and Lee Law Review Online

Abstract

Administrative voluntary departure allows noncitizens facing removal to leave the United States by waiving their right to a hearing before an immigration judge. Although this process provides noncitizens with a quicker alternative to a lengthy removal hearing, the process is not always as “voluntary” as its name suggests. Over the past four decades, noncitizens have alleged that immigration officers threatened and intimidated them in order to obtain waivers of consent, including threats against family members, prolonged detention, and physical abuse. Although the Fifth Amendment of the Constitution states that all persons physically present in the U.S. must receive due process protections regardless of legal status, immigration officers often ignore these protections during the voluntary departure process.

This Note discusses how voluntary departure coercion is not only a product of individual agent misconduct, but also a result of the broad, unrestrained power granted to government officials. The Note outlines the obstacles making coercion difficult to redress, which include evidentiary challenges, limitations on judicial review, and restrictions to bringing legal actions against government officials. To tackle these concerns, the Note imports principles from criminal procedure and constitutional waiver doctrine to develop procedural reforms that may ensure the voluntariness of departure.

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