Supreme Court Holds that Those Granted Voluntary Departure Can Seek Reopening

Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16, 2008)

The Supreme Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period “to safeguard the right to pursue a motion to reopen.” The Supreme Court rejected the argument that the voluntary departure period automatically tolls when a motion to reopen is filed.

Case Summary:

Samson Taiwo Dada (Petitioner) was placed in removal proceedings in 2004. While his removal proceedings were pending, his United States citizen wife filed an immigrant petition (I-130) on his behalf. The immigration judge presiding over the case denied Mr. Dada’s request for a continuance pending adjudication of the I-130 petition and entered a voluntary departure order. Thereafter, Mr. Dada filed an appeal with the Board of Immigration Appeals (BIA) that was denied and Mr. Dada was ordered by the BIA to depart within 30 days.

Before the expiration of his voluntary departure period, Mr. Dada filed a motion to reopen and reconsider his removal and to stay his removal pending the decision on his motion to reopen with the BIA. Additionally, in his motion, Mr. Dada asked for the withdrawal of his request for voluntary departure. After the voluntary departure period had expired, the BIA denied Mr. Dada’s motion stating that his overstay made him ineligible for adjustment of status under INA § 240B(d). Mr. Dada petitioned for review to the Court of Appeals for the Fifth Circuit.

While Mr. Dada’s appeal was pending, the Fifth Circuit held in Banda Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), that a motion to reopen does not toll the voluntary departure period. Thereafter, the Fifth Circuit denied Mr. Dada’s petition for review. The Supreme Court granted certiorari to consider the following question: “Whether the filing of a motion to reopen removal proceedings automatically tolls the period within which an alien must depart the United States under an order granting voluntary departure.” After oral argument, the Court ordered the parties to brief the following questions: “Whether an alien who has been granted voluntary departure and has filed a timely motion to reopen should be permitted to withdraw the request for voluntary departure prior to the expiration of the departure period.”

Supreme Court Decision:

In a split 5-4 decision, the U.S. Supreme Court ruled in favor of a Mr. Dada. In his majority opinion, Justice Kennedy wrote, “The issue is whether Congress intended the statutory right to reopen to be qualified by the voluntary departure process.” Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, an illegal immigrant is granted one motion to reopen a hearing. If, however, after being found removable, the illegal immigrant seeks to voluntarily leave the country, thus making it easier to obtain an immigration benefit in the future, he must do so within 60 days. If the facts of the case change and the immigrant seeks to reopen his/her proceeding, by leaving the United States his/her motion to reopen will be deemed withdrawn. Moreover, if in attempting to preserve his/her motion, the immigrant fails to leave, the immigrant will become ineligible for certain kinds of relief, and subject to a 10 year bar on immigration to the United States. Mr. Dada argued that by filing a motion to re-open the proceedings, the 60 day time period to live in the country was tolled. However, the majority of the court disagreed. The court, however, also rejected the government’s contention that an immigrant’s decision to leave voluntarily is a surrender of the ability to re-open a proceeding. In the decision, Justice Kennedy wrote “the conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days remains untenable.” “Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires.”

In a dissenting opinion, Justice Antonin Scalia objecting to the decision on grounds “the court lacks the authority to impose its chosen remedy.”

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