Dada v. Mukasey

Statutory Background

Under the Immigration and Nationality Act ("INA"), aliens are entitled to file a single motion to reopen proceedings within ninety days of a final order of removal. 8 U.S.C. 1229a(c)(7). A motion to reopen will be considered withdrawn if the person filing the motion has departed the United States. 8 C.F.R. 1003.2(d). Unless otherwise decided by the Board of Immigration Appeals ("BIA"), the Immigration Judge ("IJ"), or an authorized officer of the Immigration and Naturalization Service ("INS"), a motion to reopen will not stay the performance of any decision in a case. 8 C.F.R. 1003.2(f).

Under 8 U.S.C. 1229c, the Attorney General may grant an alien voluntary departure from the United States after a removal proceeding. 8 U.S.C. 1229c. Voluntary departure permits an alien to make arrangements before leaving the United States. Brief for Petitioner at 5. An alien qualifies for voluntary departure only if: (i) the alien has been present in the United States for at least one year before service of the notice to appear, (ii) the alien has demonstrated good moral character for at least five years before requesting voluntary departure, (iii) the alien is not deportable subject to other sections, and (iv) the alien demonstrates that she has the ability to depart the United States and intends to depart. 8 U.S.C. 1229c(b)(1). The departure period may not exceed sixty days. 8 U.S.C. 1229c(b)(2). An alien who fails to leave within sixty days must pay a civil penalty and becomes disqualified for further post-removal relief. 8 U.S.C. 1229c(d).

Did Congress intend tolling?

According to Dada, the Fifth Circuit improperly interpreted the INA's voluntary departure provision. Brief for Petitioner at 24. Under the Fifth Circuit's interpretation, an alien granted departure privileges waives the right to reopen. Id. However, Dada argues, this reading causes section 1229c to conflict with an earlier INA provision permitting aliens to seek reopening. Id. (referring to 8 U.S.C. � 1229a(c)(7)).

Dada asserts that Congress did not intend that aliens enjoying voluntary departure should waive their right to post-removal motions to reopen. Id. Dada points out that aliens who request voluntary departure during removal proceedings waive their right to appeal a final removal order. Brief for Petitioner at 25-26. By comparison, aliens who seek voluntary departure after proceedings do not. Id. at 26. Moreover, Dada urges, the Fifth Circuit's reading would violate established law that requires waivers to be knowing and voluntary. Id. at 27.

The Attorney General argues that the Fifth Circuit's interpretation does not cause the voluntary departure provision to conflict with the provision recognizing aliens' right to seek reopening. Brief for Respondent at 28. A factor considered in the granting of voluntary departure is ability and intent to depart the United States. Id. at 29 (citing 8 U.S.C. 1229c(b)(1)(D)). An alien who requests voluntary departure, the argument goes, must accept the advantages and the disadvantages associated with the provision. Id. at 29 (quoting Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004)). The risk of legal fees and penalties for failure to leave before a certain date is the price aliens pay for the freedom to decide when and how to respectably leave the country. Id. at 29-30.

The Attorney General further points out that Congress specifically established a limited time period to depart under section 1229c. Id. at 32. The Attorney General fears that tolling this period will encourage aliens to file motions solely to delay removal. Id. at 34. Consequently, tolling will hinder the purpose of voluntary departure and render the Government less inclined to grant aliens this privilege. Id.

Does the statutory language require tolling?

The Attorney General argues that 8 U.S.C. 1229c expressly limits the voluntary departure period-and thus cabins this Court's judicial discretion to extend this period. Brief for Respondent at 19. The Attorney General asserts that an alien does not have a fundamental right to voluntary departure. Id. at 21. Rather, voluntary departure is a privilege granted to qualified aliens. Id. The simple act of filing a motion to reopen, the Attorney General urges, should not change the effect of specific guidelines governing the timing of voluntary departure. Id.

Dada responds that the Court should exert its established authority to toll statutory time periods of motions to reopen or reconsider. Brief for Petitioner at 34. Dada asserts that the Court, absent "strict statutory language" to the contrary, has the authority to permit tolling and has exercised this authority in previous related cases. Id. at 35 (citing Morse v. United States, 270 U.S. 151 (1926); United States v. Ibarra, 502 U.S. 1 (1991)). Dada argues that tolling is particularly compelling in voluntary departure cases. Id. at 37. Although the Court has refused to toll timelines determining jurisdiction, such as timelines to determine petitions for certiorari, the voluntary departure timeline is not jurisdictional. Id.

Does the constitutional avoidance canon require tolling?

Dada argues that adopting the Fifth Circuit's no-tolling rule would violate the constitutional avoidance doctrine. Under the constitutional avoidance doctrine, if a statute can reasonably be interpreted in more than one way, and one interpretation raises "serious constitutional doubts," courts must reject that interpretation. Brief for Petitioner at 38 (citing Clark v. Martinez, 435 U.S. 371, 380-382 (2005)). Dada argues that a no-tolling rule would violate the Due Process Clause of the United States Constitution. Id. at 39. Without tolling, the argument goes, the fate of aliens' motions to reopen depends on immigration courts' efficiency. Id. at 40, 43. Consequently, immigration courts could arbitrarily deprive aliens of protected liberty and property interests. Id. Dada further argues that this outcome raises concerns under the Constitution's Equal Protection Clause. Id. at 46. Furthermore, the BIA's arbitrary approach differently treats aliens who have the same rights and have been granted voluntary departure. Id. at 47 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)).

The Attorney General argues that no constitutional doubt would be raised if the Court adopts a no-tolling rule. Brief for Respondent at 49. The Attorney General asserts that a no-tolling rule accords with the statutory and regulatory provisions and the view of the Executive Branch officials responsible for voluntary departure. Id.

Should the Court permit an exception in Dada's particular case?

Dada finally argues that even if the Court adopts the Fifth Circuit's no-tolling interpretation of the voluntary departure provision, the Court should make an exception in the present case. Brief for Petitioner at 49. Dada urges that an exception is warranted by the circumstances of Dada's case, including denial of Dada's withdrawal of the voluntary departure request and the disregard for Dada's request for a stay. Id. Dada argues that he did not knowingly waive his right to obtain reconsideration-indeed, he explicitly reserved appeal after the voluntary departure proceeding. Id. at 49-50. Finally, Dada points out that Banda-Ortiz had not been decided at the time Dada filed his reconsideration motion, and before this case, the courts of appeals to have addressed the question had unanimously permitted tolling. Id.

The Attorney General replies that the Court should not recognize an exception in Dada's case. Brief for Respondent at 50. The Attorney General argues that Dada did not assert infringement upon his personal liberty or property interests. Id. Moreover, the BIA's resolution in Dada's case disqualified Dada for the relief he sought from a motion to reopen. Id. The Attorney General further points out that Dada filed for reconsideration when only two days remained in his voluntary departure period, and thus it was unreasonable for Dada to expect the IJ to resolve his motion within this brief window. Id. at 51. Finally, Dada's plea for an exception undermines his argument that similarly-situated aliens should receive similar treatment. Id.