One of the most perilous legal traps a Cuban facing immigration proceedings in the United States can fall into is requesting a voluntary departure to Cuba and then attempting to resume an asylum case. Immigration attorney Liudmila Marcelo clarified this issue while addressing a query from Aylín Hernández, a Cuban resident whose husband, holding an I-220A, requested voluntary departure to Cuba. However, the Cuban authorities denied his entry, and he is now detained in Texas.
Aylín Hernández's situation highlights a troubling scenario affecting numerous Cubans: individuals who, under the pressure of a deportation order, choose voluntary departure, only for Cuba to refuse them entry. A notable example is Dairon Fuentes, a Cuban with an I-220A and no criminal record, detained by ICE in Texas on December 4, 2025, despite his wife being over 36 weeks pregnant. Another Cuban with an I-220B faced a similar fate; after traveling on a flight with a layover in Panama, both Cuba and Panama denied him entry, forcing him to return to the United States wearing an electronic ankle monitor.
Legal Advice and Strategic Moves
Marcelo emphasized the importance of seeking specialized legal advice. "Aylín, you need to consult an attorney who thoroughly understands your husband's case and is aware of what transpired in the court, as many things can occur there," she advised.
The attorney suggested an approach that might work in such scenarios: filing a motion to reopen the case with the same judge who granted the voluntary departure, using the failed execution attempt as evidence.
"I would attempt a motion to reopen the case," Marcelo explained. "I’d say, ‘Look, I tried, but they wouldn’t accept me and sent me back. Here's all the evidence that I executed the voluntary departure, but I wasn’t received. I lost the only benefit you granted me. Please reopen the case so I can continue with the asylum benefit.’"
The Legal Contradiction and Its Impact
However, Marcelo warned of a fundamental legal contradiction that could undermine any future asylum applications: "Aylín, your husband claims asylum because he fears returning to Cuba. If he has just requested voluntary departure to Cuba, where is the fear? This contradiction will work against him, as volunteering to go back to Cuba contradicts the claim of fear."
This contradiction is significant: an immigration judge might interpret the voluntary return attempt as evidence that the claimed fear wasn't genuine, thus eroding the asylum case's credibility from the ground up.
Potential Risks and Challenges with ICE
Marcelo also highlighted another risk: specifying a country other than Cuba for voluntary departure does not guarantee that Immigration and Customs Enforcement (ICE) will honor that destination. "ICE makes every effort to send you to the country specified in the voluntary departure, but if that country doesn't accept you, they'll send you to your country of origin, which is Cuba," she cautioned.
She illustrated this risk with a personal case. "One of my clients requested voluntary departure to Mexico, and the judge approved it. We provided extensive evidence that she had previously resided there, that her mother was there, and that she had departed voluntarily to Mexico just days before. Yet, she was sent back to Cuba."
The current situation is exacerbated by a dramatic increase in ICE detentions of Cubans—up 463% since October 2025. Immigration courts have also expedited court dates en masse, adding pressure on migrants and their legal representatives.
Marcelo, who successfully secured permanent residency for a Cuban with an I-220A under the Cuban Adjustment Act in May 2026, has been adamant about advising against voluntary departure for Cubans. In her view, as long as the migrant remains in the U.S., they retain the possibility of benefiting from future legal changes. "Leaving means losing that opportunity permanently," she concluded.
Understanding Voluntary Departure and Asylum for Cubans
What is a voluntary departure in U.S. immigration law?
A voluntary departure allows an individual to leave the U.S. without a formal deportation order, potentially avoiding some of the penalties associated with deportation.
Why might requesting voluntary departure be risky for Cubans?
Requesting voluntary departure can be risky because if the designated country, such as Cuba, refuses entry, it complicates the individual's legal standing and could negatively impact future asylum claims.
Can a voluntary departure order be reversed?
It is possible to file a motion to reopen a case if there is evidence that the voluntary departure could not be executed, but it requires legal expertise and is not guaranteed.