RESPONDENT: Michael B. Mukasey, Attorney General
LOCATION: Metropolitan Police Department
DOCKET NO.: 06-1181
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 554 US 1 (2008)
GRANTED: Sep 25, 2007
ARGUED: Jan 07, 2008
DECIDED: Jun 16, 2008
Christopher J. Meade - on behalf of the Petitioner
Edwin S. Kneedler - on behalf of the Respondent
Facts of the case
Samson Dada, a Nigerian citizen, entered the United States in 1998 and overstayed his temporary visa. Dada married a U.S. citizen which made him eligible for permanent residence under the Immigration and Naturalization Act. Dada's wife failed to provide the required documentation. In 2004 the government found Dada removable. An immigration judge granted Dada's request for voluntary departure. Before the window to leave the country closed, Dada filed a motion to reopen his removal proceedings. In so doing, he asked that the voluntary departure order be withdrawn, to avoid the 10-year bar on future re-entry that accompanies a failure to leave the country within the allotted time. The Bureau of Immigration Affairs denied the request.
Dada appealed to the United States Court of Appeals for the Fifth Circuit. It upheld the denial. Because Dada's voluntary departure period had expired, the appeals court found Dada subject to the 10-year bar on future re-entry.
When an illegal resident agrees to voluntarily depart the United States and then files a motion to reopen removal proceedings, does the filing suspend the time period by which the illegal resident must depart the United States under the voluntary departure order?
Media for Dada v. MukaseyAudio Transcription for Oral Argument - January 07, 2008 in Dada v. Mukasey
Audio Transcription for Opinion Announcement - June 16, 2008 in Dada v. Mukasey
John G. Roberts, Jr.:
Justice Kennedy has our opinion this morning in 06-1181, Dada versus Mukasey, which will be announced by Justice Stevens.
John Paul Stevens:
Samson Dada, petitioner in this case and a citizen of Nigeria, overstayed his temporary visa. The Department of Homeland Security sought petitioner's removal.
As an alternative to involuntary removal, petitioner requested voluntary departure.
This is a form of discretionary relief that allows certain favored aliens to leave the country willingly.
This option gives the alien certain advantages.
The Immigration Judge found petitioner removable, but granted the request for voluntary departure.
Two days before expiration of the voluntary departure period, petitioner moved to reopen his deportation proceedings.
Later, the BIA denied the motion to reopen because petitioner had overstayed his departure period.
The Court of Appeals for the Fifth Circuit affirmed.
We granted certiorari to resolve the conflict among the Circuits regarding whether the filing of a motion to reopen automatically tolls the voluntary departure period pending the motion's disposition.
In an opinion for the Court filed today and authored by Justice Kennedy, we hold that the automatic tolling is not available.
Tolling would fundamentally alter the voluntary departures quid pro quo between the Government and the alien.
It would allow the alien to remain in the United States, but give the Government no benefit in return, but we also cannot accept the Government's argument.
The Government urges that Congress intended that the alien, an alien granted voluntary departure must relinquish the statutory right to seek -- to seek reopening.Un
der the Government's view an alien granted voluntary departure, but whose circumstances have changed in a manner cognizable on a motion to reopen, has two unappealing choices.
One, he or she can leave the United States in accordance with the voluntary departure order, but the motion to reopen will be deemed withdrawn.
Two, if the alien wishes to pursue reopening and remains in the United States to do so, he or she risks the expiration of the statutory period and ineligibility for adjustment of status, the underlying relief sought.
This poor choice cannot be reconciled with the plain text of a motion to reopen statute.
It guarantees to each alien the right to file "one motion to reopen proceedings under this section" and nothing in the statutes or past use for past usage with respect to voluntary departure indicates it cannot coexist with the motion to reopen.
Particularly where the plain text reveals no limitation, we must be reluctant to assume that Congress intended to remove for a protective class of aliens a safeguard as important as the motion to reopen.
Accordingly, we hold that an alien granted voluntary departure should be permitted to unilaterally withdraw that election.
That request must be made before the departure period expires.
This approach, while by no means, the only solution to the untenable conflict between the voluntary departure scheme and the motion to reopen, avoids both the quixotic results of the Government's proposal and the elimination of benefits to the Government that would follow from petitioner's tolling rule.
This petitioner requested withdrawal of his motion for voluntary departure prior to expiration of the 30-day departure period.
The BIA should have granted this request.
We find this same mistake implicit in the Court of Appeals' decision.
We, therefore, reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
Justice Scalia has filed a dissenting opinion which the Chief Justice and Justice Thomas have joined.
Justice Alito has also filed a dissenting opinion.