No. 06-1181, Dada v. Mukasey, involves the intersection of two seemingly conflicting provisions of the Immigration and Nationality Act. One section of the statute authorizes the Attorney General to allow aliens otherwise eligible for deportation to instead depart the country voluntarily within a specified period of time. Another section of the statute allows aliens subject to removal orders to reopen their cases in the event of changed circumstances "“ but requires them to remain in the country while their motions are pending. The Supreme Court granted certiorari to resolve a split in the circuit courts over the proper course of action when an alien is granted voluntary departure but, before the window to leave the country expires, seek to reopen his case in light of new evidence.


Under section 240B of the Immigration and Nationality Act, the Attorney General may permit aliens otherwise eligible for removal to instead depart the country voluntarily, usually within a period of 60 days. This benefit, commonly referred to as a grant of voluntary departure, has been called a "bargain" between the government and the alien. The former avoids the time and expense of physically removing aliens to their country of origin, while the latter can choose his or her point of destination, avoid the stigma of formal deportation, and "“ perhaps most importantly "“ escape the ten-year bar on future relief that accompanies a formal order of removal (though they may still face future time bars for other reasons, such as unlawful presence in the country). At the same time, however, section 240 of the INA permits aliens to reopen their removal proceedings if they wish to present new facts potentially beneficial to their case. Aliens have 90 days to file such "motions to reopen" following a final administrative order of removal and, as importantly, will be deemed to have withdrawn their motions if they depart the United States before the issuance of a decision.

The period in which aliens may file a motion to reopen is, thus, often longer than the period in which aliens granted voluntary departure must leave the country. As a result, numerous circuit courts of appeal have split on the question of whether immigration courts should automatically toll periods of voluntary departure of aliens who, before the window to leave the country has expired, seek to reopen their removal proceedings. Four circuit courts have held that the departure period should automatically toll upon the filing of a timely motion to reopen, while three have held it should not. On September 25, the Supreme Court granted certiorari to resolve the question.


The case involves Samson T. Dada, a Nigerian native and citizen who entered the United States in mid-1998 on a temporary nonimmigrant P-3 visa for artists and entertainers. After overstaying the visa, Dada the following year married a U.S. citizen, who subsequently filed an I-130 immediate relative visa petition on his behalf. The government denied the petition in early 2003, however, after the couple failed to respond to a request for further documentation, and initiated removal proceedings in 2004. Dada's wife subsequently filed a second immediate relative petition, but the Immigration Judge presiding over Dada's removal hearings declined to grant a continuance. The Immigration Judge did grant Dada's request for voluntary departure, and the Board of Immigration Appeals, after affirming the order below, gave Dada thirty days to leave the county.

Two days before Dada's voluntary departure window expired, he filed a motion to reopen removal proceedings to allow time to process his wife's pending I-130 petition. In filing his motion to reopen, Dada also asked that the previous grant of voluntary departure be withdrawn. In February 2006, the BIA denied both requests and, because Dada had remained in the country past the 30-day departure period, found him eligible for removal and subject to the ten-year bar on future relief. In a per curiam opinion, the U.S. Court of Appeals for the Fifth Circuit affirmed the BIA's order. The Fifth Circuit found reasonable the BIA's decision not to toll Dada's voluntary departure period while it considered his motion to reopen, citing a previous decision that found "[a]utomatic tolling would effectively extend the validity of [a] voluntary departure period well beyond the [maximum time] that Congress has authorized."

Petition stage

In his petition for certiorari, Dada cited both the circuit split on the tolling question and the practical impact of the ruling below on willingness of future aliens to accept orders of voluntary departure. At the time of the Fifth Circuit's decision in Dada's case, three circuits had held that timely motions to reopen should automatically toll aliens' period of voluntary departure. The first of these decisions, the 9th Circuit's ruling in Azarte v. Ashcroft, noted that "the BIA rarely if ever rules on a motion to reopen before an alien's voluntary departure period has expired." As a result, aliens granted voluntary departure would in most cases be effectively denied the ability to file motions to reopen should new information relevant to their case become available. Thus, the Azarte court concluded, interpreting the voluntary departure provision to allow for automatic tolling upon the filing of a timely motion to reopen would be "more consistent with the statute as a whole." The petition also cited a subsequently issued Eleventh Circuit decision criticizing the Fifth Circuit for favoring the INA provision requiring aliens granted voluntary departure to leave within their allotted departure period at the expense of the provision allowing all aliens 90 days to file a motion to reopen to reopen. Dada's petition also argued that from a practical perspective, the Fifth Circuit decision would make aliens and their counsel much less likely to request voluntary departure. If that were to occur, the petition said, "an important tool provided in the Immigration and Nationality Act for efficient administration of the immigration laws will become useless."

The government's brief in opposition did not deny the existence of the circuit split, but argued the Fifth Circuit had nonetheless correctly resolved the competing statutory provisions. The government's brief relied heavily on a Fourth Circuit opinion, not cited in the petition for certiorari, which rejected the automatic tolling argument. In Deckladenu v. Gonzales, the Fourth Circuit specifically rebuffed the Ninth Circuit's reasoning, finding that "to adopt the Azarte approach and mandate tolling of the voluntary departure period when an alien files a motion to reopen would have the effect of rendering the time limits for voluntary departure meaningless." Under such a rule, the panel concluded, aliens granted voluntary departure could easily extend their window to leave the country by filing a motion to reopen their original removal proceedings. Indeed, the government argued, automatically tolling periods of departure would work to prevent aliens' rapid exit from the country, and thus deny the government one of the main benefits of allowing aliens to depart voluntarily in the first place. Again citing Dekoladenu, the government argued that because voluntary departure is a privilege, it is appropriate to require aliens granted the benefit to relinquish their right to file "“ and be able to have resolved "“ a motion to reopen.

Merits stage

Petitioner's brief

In his merits brief, Dada principally argues that basic principles of statutory interpretation require a voluntary departure period to be tolled upon the timely filing of a motion to reopen. Maintaining that the statute should be read as "as a whole," Dada contends a no-tolling rule would essentially eliminate aliens' statutory right to file motions to reopen in the event of changed circumstances. Moreover, Dada argues, because voluntary departure remains available only to aliens who can show they have been of "good moral character" of the previous five years, it would be paradoxical to deprive them of a potential form of relief eligible to aliens facing removal due to criminal convictions.

Dada also argues that the government's construction of the statute would put aliens facing changed circumstances in worse positions than if they ever been granted voluntary departure. As a result, it would present aliens eligible for voluntary departure with the "Hobson's choice" of foregoing the ability to reopen their cases in the event of changed circumstances. In addition, Dada argues, in enacting a set of 1996 amendments to the INA, Congress chose not to require aliens granted orders of voluntary departure to waive judicial or administrative appeals.

Even if the Court finds the government's construction of the statute more persuasive, Dada urges the Justices to nonetheless reject a no-tolling rule because it could raise constitutional concerns under the 5th Amendment. In the absence of tolling, Dada contends, the ability to have motions to reopen decided on the merits would depend entirely on how quickly the Board of Immigration Appeals happens to decide a particular case. "The result is a system in which arbitrary government action jeopardizes aliens' protected interests under the Due Process Clause and treats identically situated classes of aliens differently absent any rationale."

Finally, Dada asks the Court to toll the period of voluntary departure in his case even if the Justices opt not to do so in future cases, given that all circuit courts had adopted a tolling rule at the time of the filing of his motion to reopen, and that he had originally sought to withdraw his grant of voluntary departure.

Respondent's brief

In response, Mukasey argues that Dada seeks not so much a tolling of the voluntary departure period as the term is traditionally understood "“ i.e. the suspension of a limitations period for filing a legal claim "“ but rather an extension of the time in which he previously agreed to leave the country. The government contends that under the INA, aliens who accept orders of voluntary departure inherit an obligation to actually leave the country within the specified period of time. According to the respondents, adopting an automatic tolling rule would simply invite aliens to "manipulate the voluntary departure process."

Mukasey further maintains that Dada's arguments, as well as those of the circuit courts to have adopted a tolling rule, "suffer from the same fundamental flaw: They ignore the fact that voluntary departure is entirely voluntary." And while the government concedes that imposing a no-tolling rule may effectively prevent some aliens granted voluntary departure from reopening their cases in the event of changes circumstances, the brief contends it to be "commonplace that a party's choice to seek one remedy may sometimes foreclose his ability to obtain another." Furthermore, the government argues that taken to its logical extreme, Dada's argument would require the BIA to consider a motion to reopen filed even after the voluntary departure window had closed.

On Dada's constitutional avoidance argument, the government asserts aliens have neither a liberty nor property interest in the granting of a motion to reopen, as Congress left such decisions entirely within the discretion of the BIA.

Proposed regulation

On Nov. 30, days before the submission of the government's brief, the Department of Justice proposed a regulation that would, going forward, resolve the precise question at issue in Dada. Under the proposed rule (available here), any voluntary departure order would simply terminate upon an alien's timley filing of a motion to reopen or petition for judicial review. If enacted, the proposed regulation would only apply to orders of voluntary departure issued after the effective date of the final rule. While the Court could thus not apply the regulation to Dada himself, its publication will almost surely be discussed during oral argument.

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