Under the Immigration and Nationality Act, the government may permit aliens who are otherwise eligible for deportation to instead depart the country voluntarily, often within a period of 60 days. Meanwhile, under a separate provision of the INA, aliens may also seek to reopen their removal proceedings within 90 days of a final deportation order "“ so long as they remain inside the country while the motion is under consideration. On Tuesday, the Supreme Court grated certiorari in Dada v. Keisler (06-1181) to resolve a question that has divided the courts of appeal about these somewhat conflicting provisions: whether the filing of a motion to reopen removal proceedings automatically tolls the period in which aliens granted voluntary departure must leave the country.

The case "“ one of 17 granted on Tuesday "“ involves Samson Dada, a Nigerian citizen who entered the country in mid-1998 on a temporary visa for artists and entertainers. Dada overstayed the visa but married a U.S. citizen the following year, making him eligible for permanent residence under INA section 245(a). Dada's wife failed to provide required documentation when filing his green card petition, however, and in 2004 the government found Dada removable. An immigration judge granted Dada's request for voluntary departure, which began running once the Board of Immigration Appeals affirmed the removal order in November 2005. 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 In so doing, he asked that the voluntary departure order be withdrawn, to avoid the 10-year bar on future re-entry that accompanies a failure to leave the country within the allotted time.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 BIA denied both requests, and Dada appealed to the Fifth Circuit. At the time of Dada's appeal, the Third, Eighth and Ninth Circuits had held the filing a motion to reopen automatically tolled the voluntary departure window. (The Eleventh Circuit reached the same conclusion after the appeal.) The Fifth Circuit held otherwise and, because Dada's voluntary departure period had expired, found him subject to the 10-year bar on future re-entry.

In his petition for certiorari, Dada argued that because motions to reopen removal proceedings frequently take longer to resolve "“ indeed, months or years longer "“ than the departure period, upholding the Fifth Circuit's decision would vastly reduce the number of aliens willing to depart the country voluntarily. While voluntary departure is of principle benefit to the alien, the petition argues, it also saves government resources that would otherwise be spent transporting them to their home countries. Opposing certiorari, the government emphasized that voluntary departure is a discretionary form of relief, and that it remains sensible to require aliens granted the benefit to give up their right to reopen their removal proceedings. Tolling the voluntary departure period of aliens who seek to reopen their removal proceedings, the government argued, would effectively render the departure period meaningless. While it acknowledged the circuit conflict, it said the Department of Justice planned to issue regulations to clarify the tolling question.

Dada's original complaint was filed against former Attorney General Alberto Gonzalez. In Tuesday's order the Court listed the case as Dada v. Keisler, reflecting the name of Acting Attorney General Peter Keisler. The case is expected to be argued in January.

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