A week after hearing oral argument in a case testing the federal law that allows an alien to leave the country voluntarily, the Supreme Court on Monday expanded its review — putting back into the case for new briefing a point that the Court itself had taken out earlier. In an order released mid-afternoon in Dada v. Mukasey (06-1181), the Court told counsel on both sides to file new briefs in the next two weeks on whether an alien given permission to leave the U.S. may withdraw the request to leave if he does so before time expires.

Here is the question as posed by the Court: “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.” Both sides must file open briefs by 2 p.m. Friday, Jan. 25, with reply briefs before 2 p.m. Friday, Feb. 1.

When counsel for a native of Nigeria, Samson Taiwo Dada, filed a petition for review, they raised these questions: “1. Whether [he] was rendered statutorily ineligible for adjustment of status to lawful permanent resident because he did not depart the United States voluntarily pursuant an order of the Board of Immigration Appeals, despite the fact that [he] had timely withdrawn his request for voluntary departure? 2. Alternatively, whether the period of voluntary departure granted by the BIA was tolled by the timely filing of [his] motion to reopen and reconsider his removal to seek relief in the form of adjustment of status?”

In granting review on Sept. 25, the Court said it would only address a version of the second question — that is, whether Dada could gain extra time to remain in the U.S. before departing voluntarily if he filed a motion to reopen deportation proceedings.” That is the question counsel briefed and then argued.

Under immigration law, an alien who otherwise faces deportation may be given permission to leave on his own, at his own expense. In that case, an alien avoids the requirement under a forced deportation order to remain away from the U.S. for five to ten years before seeking re-admittance. The law also allows such an alien to decide where he will go, and to get his affairs in order before departing. But, if permission is granted, he must leave within 60 days; failing to do so leads to forced deportation. The law allows one motion to reopen deportation proceedings, provided it is filed within 90 days after a deportation order. As the case went before the Court on Jan. 7, Dada was seeking to extend the time to depart beyond the 60 days allowed.

With the new question, the Court will now weigh — perhaps in addition to the previously granted question — whether Dada can withdraw his departure request, and proceed with his motion to reopen the deportation proceeding to seek an adjustment of his status to that of permanent resident alien.

Posted in Dada v. Mukasey, Uncategorized