Dada v. Mukasey
Headline: Immigration ruling lets people granted voluntary departure withdraw that request before the deadline to seek reopening, forcing a choice between staying to pursue relief or keeping voluntary-departure benefits.
Holding: An immigrant granted voluntary departure must be allowed to withdraw that departure request before the departure period expires so they can pursue a motion to reopen, but withdrawing forfeits voluntary-departure benefits and risks removal.
- Allows immigrants with voluntary-departure orders to withdraw and pursue motions to reopen before the deadline.
- If withdrawn, they lose voluntary-departure benefits and may face removal and inadmissibility.
- Clarifies agency discretion and may increase stay requests and reopening filings.
Summary
Background
A Nigerian man who overstayed a temporary visa says he married a U.S. citizen and that his wife filed immigration petitions on his behalf. An immigration judge found him removable but granted voluntary departure; the Board of Immigration Appeals affirmed and ordered him to leave within 30 days. Two days before the deadline he asked to withdraw the voluntary-departure request and filed a motion to reopen his removal proceedings with new evidence about his marriage. After the 30-day period expired the Board denied his motion as barred, and the Fifth Circuit affirmed.
Reasoning
The Court examined how two rules interact: the right to file one motion to reopen (generally within 90 days) and the limited voluntary-departure period (no more than 60 days when granted at the end of proceedings). The Court rejected the idea that filing to reopen automatically stops the voluntary-departure clock. Nor would tolling fit the statutory design. To reconcile the rules, the Court held that an immigrant who was given voluntary departure must be allowed, before the departure period ends, to withdraw that voluntary-departure request so they can pursue a motion to reopen. If they withdraw, they forgo the benefits of voluntary departure and are subject to the alternate removal order and possible removal while the motion remains pending.
Real world impact
The decision gives people a clear option: keep the voluntary-departure deal and its readmission benefits, or withdraw before the deadline to try reopening. Withdrawal means losing voluntary-departure benefits and exposing oneself to removal and ineligibility rules. The ruling is procedural and not a final merits decision; the case was sent back for further administrative consideration.
Dissents or concurrances
Several Justices dissented, arguing the statute and valid regulations allow the Government to deny withdrawal and that the Court lacked authority to create this withdrawal right. Another Justice would remand because the Board did not state its reason for denying withdrawal.
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