When the Court granted certiorari last September in Dada v. Mukasey (06-1181), it appeared to face two possible ways of reconciling a thorny immigration question over which the federal courts of appeal were deeply divided – how to treat aliens subject to orders of voluntary departure who, before their window to leave the country expired, sought to reopen their cases on the basis of new facts. The petitioner, along with four circuit courts, said the departure period should “toll,” or stop, until immigration officials could resolve the new filing. The government, along with three circuit courts, said that while aliens who agreed to depart voluntarily retained a right to file motions to reopen, they remained obligated to leave the country whether or not their claim had been resolved.

But at oral argument in early January, a number of Justices expressed puzzlement over a preliminary question on which, incidentally, they had declined to grant certiorari: why aliens could not, as the petitioner had attempted to do in this case, simply withdraw an earlier request for voluntary departure. After ordering supplementary briefing on the question, the Court – by a 5-4 margin – ruled Monday (opinion here) that aliens in fact possess such an option. In so holding, the Court rejected both of the approaches – tolling and non-tolling – between which it initially seemed the Court would have to decide.  Writing for the Court, Justice Kennedy found that tolling the voluntary departure period would invite frivolous filings and rob the government of its end of the voluntary departure bargain, while the government’s solution would leave aliens “between Scylla and Charybdis” – forced to either flaunt the departure date (and incur additional statutory penalties) to wait for the motion to be resolved, or leave the country on time and forfeit a potentially valid claim.

The petitioner in the case, Nigerian native Samson T. Dada, married a U.S. citizen in 1999 after overstaying the temporary visa on which he entered the country. The government began deportation proceedings in 2004 after the couple failed to submit proper paperwork with Dada’s green card application. After finding Dada removable, an immigration judge granted his request for voluntary departure, a common agreement that allows the government to avoid the time and expense of physically transporting aliens to their country of origin, and that allows aliens to put their affairs in order and avoid the legal consequences of formal orders of deportation. Upon affirming the immigration judge’s order in late 2005, the Board of Immigration Appeals gave Dada 30 days to leave the country voluntarily.

Two days before his departure window closed, however, Dada filed a motion to reopen his case. At the same time, he asked that his earlier grant of voluntary departure be withdrawn. The Board denied both requests, thus rendering him subject to a formal order of deportation and ineligible to apply for readmission for 10 years. On appeal to the Fifth Circuit, Dada contended his departure window should have temporarily stopped the day he sought to reopen his case. The panel rejected his claim in per curiam opinion, relying on an earlier case that found a tolling approach would allow aliens to stay longer under orders of voluntary departure than Congress had ever intended.

In reversing the Fifth Circuit’s ruling, the Court said the Board should have simply granted Dada’s attempt to withdraw his initial grant of voluntary departure. Stating that nothing in the Immigration and Nationality Act made orders of voluntary departure irrevocable, the majority pointed to a pending Justice Department regulation – proposed following the grant of certiorari but before oral argument – that, if adopted, would terminate grants of voluntary departure of aliens who sought to reopen their cases. In the meantime, the Court found, allowing aliens to withdraw grants of voluntary departure – as Dada had attempted to do from the start – preserved both “the alien’s right to pursue reopening while respecting the Government’s interest in the quid pro quo of the voluntary departure arrangement.”

In a dissenting opinion joined by the Chief Justice and Justice Thomas, Justice Scalia said the majority opinion rested on a false premise – namely, that aliens who receive grants of voluntary departure maintain the ability to remain in the country should they later seek to reopen their cases. Likening voluntary departure to a plea bargain in which a defendant gives up a right to appeal, Scalia said that aliens granted orders of voluntary departure effectively forfeit their right to reopen their cases in the limited time in which they must depart. Calling it commonplace that litigants’ pursuit of one type of relief often requires the surrender of another, Scalia said the voluntary departure bargain “seems entirely reasonable to me.”

In a separate dissent, Justice Alito wrote that because the INA does not address whether aliens can unilaterally withdraw from grants of voluntary departure, he would remand the case to the Board to determine why it denied Dada’s request. The Board would have erred if it believed it lacked power to permit withdrawal, Alito wrote, but otherwise should be afforded discretion to forbid withdrawal as a matter of policy or under the specific facts of a case.

At the end of the majority opinion, Kennedy wrote that a “more expeditious solution” to the problem would be to allow aliens to pursue motions to reopen after they’ve left the country. Noting that the regulation forbidding the practice was not challenged in the case, the Court did not consider the possibility further.

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