Dada v. Mukasey Case Brief

Facts of the Case

Petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came to the United States in April 1998 on a temporary nonimmigrant visa, which he overstayed. In 1999, petitioner alleged, he married an American citizen. Dada’s wife filed an I-130 Petition for Alien Relative on his behalf. The necessary documentary evidence was not provided, however, and the petition was denied in February 2003. Thereafter, Department of Homeland Security (DHS) charged Dada with being removable under the Immigration and Nationality Act for overstaying his temporary nonimmigrant visa. The Immigration Judge (IJ) denied the request for a continuance pending adjudication of a second I-130 petition, found Dada eligible for removal, and granted his request for voluntary departure under 8 U.S.C. § 1229c(b). The Board of Immigration Appeals (BIA) affirmed and ordered Dada to depart within 30 days or suffer statutory penalties. Two days before the end of the 30-day period, Dada sought to withdraw his voluntary departure request and filed a motion to reopen removal proceedings under § 1229a(c)(7), contending that new and material evidence demonstrated a bona fide marriage and that his case should be continued until resolution of the second I-130 petition. After the voluntary departure period had expired, the BIA denied the request, reasoning that an alien who has been granted voluntary departure but did not depart in a timely fashion was statutorily barred from receiving adjustment of status. It did not consider Dada’s request to withdraw his voluntary departure request. The Fifth Circuit affirmed.


Does a civil court have jurisdiction over a military tribunal?


No. Justice Anthony Kennedy, joined by four other Justices, stated that an alien has two options in such a case: he may abide by the terms of the voluntary departure and leave the country on time, maintaining the re-entry perks, or withdraw the voluntary departure request and remain in the country to pursue the motion to reopen. If the alien chooses the second option, he may become subject to deportation proceedings. While the Court acknowledged that the opinion still leaves a difficult decision for aliens, it prevents them from reaping the benefits of the voluntary departure option while evading its terms to pursue continuing legal action against the government. Justice Antonin Scalia filed a dissenting opinion, joined by Chief Justice John G. Roberts and Justice Clarence Thomas, arguing that once an alien agrees to depart voluntarily he should have no right to withdraw that agreement. Justice Samuel A. Alito also filed a separate dissent suggesting that it should be within the discretion of the Board of Immigration Appeals, not the Court, to permit or deny the withdrawal of an alien’s voluntary departure agreement.

Case Information

Citation: 554 US 1 (2008)
Granted: Sep 25, 2007
Argued: Jan 7, 2008
Decided: Jun 16, 2008
Case Brief: 2008