Requesting voluntary departure to Cuba and then trying to resume an asylum case is one of the most dangerous legal traps that a Cuban can face during the immigration process in the United States. Immigration attorney Liudmila Marcelo explained it clearly while responding to viewer Aylín Hernández, a Cuban resident whose husband has I-220A, who requested voluntary departure to Cuba, but the authorities in Havana rejected it and he is now imprisoned in Texas.
The case of Aylín Hernández is situated within a situation affecting several Cubans: individuals who, under the pressure of a deportation order, opted for voluntary departure, but Cuba refused to accept. One of the most well-known cases is that of Dairon Fuentes, a Cuban with an I-220A form and no criminal background, detained by ICE in Texas on December 4, 2025, whose wife is more than 36 weeks pregnant. A second Cuban with an I-220B who traveled on a flight with a stopover in Panama faced the same fate: Cuba would not accept him, and neither would Panama, and he returned to the United States with an electronic ankle monitor.
Marcelo emphasized that the first recommendation is to seek specialized legal advice. "Aylín (Hernández), you need to consult a lawyer who can thoroughly examine the case and understands what happened in court, because a lot can happen in courts."
The strategy that the lawyer considers feasible in this scenario is to file a motion to reopen the case before the same judge who granted the voluntary departure, using the failed execution attempt as evidence.
"I would propose a motion to reopen the case. I tell you: look, I tried but they didn’t want to see me and sent me back. I mean, here is all the evidence that I executed the voluntary departure, but they didn’t accept it. I lost the only benefit you gave me. Reopen my case and then I’ll continue with the asylum benefit," Marcelo explained.
However, the lawyer warned of a significant legal contradiction that could undermine any future attempts to seek asylum: "Aylín, he has asylum because he is afraid to return to Cuba. If he has just requested voluntary departure to Cuba, then where is the fear? That will contradict his own actions because if I request to leave voluntarily to Cuba, how can I then claim that I am afraid to return to Cuba? Those are the consequences of voluntary departure."
This contradiction is not insignificant: an immigration judge may interpret the attempt at voluntary return as evidence that the claimed fear was not genuine, which undermines the credibility of the asylum case from the outset.
Another risk that Marcelo highlighted is that specifying a country other than Cuba in the voluntary departure does not guarantee that the Immigration and Customs Enforcement (ICE) will honor that destination. "ICE does everything possible to send you to the country listed in the voluntary departure, but if that country does not accept you, they will send you back to your country, which is Cuba," he warned.
The lawyer cited her own case to illustrate the risk. "It happened to me with a client. We requested voluntary departure to Mexico, and the judge approved it. After we presented a lot of evidence showing that at one point she had residence in Mexico, that she would be received there, that her mother was already there, and that her mother had previously been granted voluntary departure to Mexico just days before her, yet they sent her to Cuba."
This situation is worsening in the current context. Detentions of Cubans by ICE have increased by 463% since October 2025, and immigration courts have massively advanced their hearing dates, intensifying the pressure on migrants and their legal representatives.
Marcelo, who in May 2026 obtained permanent residency for a Cuban with I-220A under the Cuban Adjustment Act, has been emphatic in advising against voluntary departure for Cubans. In her opinion, while the migrant remains in the United States, they retain the possibility of benefiting from future legal changes. "If they leave, they lose that opportunity permanently," she concluded.
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