Dada v. Mukasey (06-1181)

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Oral argument: January 7, 2008

Appealed from: United States Court of Appeals, 5th Circuit (Nov. 28, 2006)


Samson Taiwo Dada, a citizen of Nigeria, overstayed a temporary visitor's visa. After removal proceedings, Dada was granted voluntary departure. Dada failed to leave the United States within the voluntary departure period and instead moved before the Board of Immigration Appeals to reopen his removal proceedings. Dada argued that the voluntary departure period should be tolled pending the outcome of his motion. Dada contended that otherwise, he and similarly situated aliens would be forced either to abandon their motions to reopen or illegally remain in the United States beyond the voluntary departure period. The Board denied Dada's motion and the Fifth Circuit affirmed. The outcome of this case will settle a circuit split concerning the legal effect of motions to reopen and will influence aliens' decisions to seek to reopen removal proceedings.

Question presented

Whether the filing of a motion to reopen removal proceedings automatically tolls the period within which an alien must depart the United States under an order granting voluntary departure.



Whether the time allotted for departure under a voluntary departure order is suspended when an alien files a motion to reopen removal proceedings.



Samson Taiwo Dada, a citizen of Nigeria, was legally admitted into the United States on a nonimmigrant visa in 1998. Brief for Petitioner at 9. After Dada's visa expired, he married an American citizen who filed a Petition for Alien Relative, Form I-130, on Dada's behalf in 1999. Id. The I-130 petition was subsequently denied for failure to present documents requested by the Bureau of Citizenship and Immigration Services. Id.

In 2004, the United States ("Government") charged Dada with overstaying his visa, in violation of Section 237(a)(1)(B) of the Immigration and Nationality Act ("INA"). Brief for Petitioner at 9. Dada was found to be removable. Brief for Respondent at 10. Subsequently, Dada's wife filed a second I-130 petition. Id. At the conclusion of the removal hearing, the Immigration Judge ("IJ") granted Dada a 60-day voluntary departure period. Brief for Petitioner at 10. Voluntary departure is granted to an alien who has been physically present in the United States for at least a year before service of the notice of appearance, has demonstrated "good moral character for at least five years," and has "established by clear and convincing evidence that [he] has the means to depart the United States and intends to do so." Brief for Respondent at 4.

In 2005, the Board of Immigration Appeals ("BIA") affirmed the IJ's voluntary departure decision and reinstated a 30-day departure period. Brief for Petitioner at 10. Two days before Dada's departure period expired, Dada filed a motion with the BIA to reopen his removal proceedings and to permit him to seek "adjustment of status" based on the pending second I-130 petition. Brief for Respondent at 12. Dada asked that his removal be postponed until after the Board had reached a decision concerning his motion to reopen. Brief for Petitioner at 10. Accordingly, Dada sought to retract his voluntary departure request and to instead obtain an order of deportation. Id.

In 2006, the BIA denied Dada's motion to reopen. Brief for Petitioner at 10. The BIA found that Dada's failure to depart the United States within the voluntary departure period disqualified him for status adjustment. Id. at 11. Dada petitioned the United States Court of Appeals for the Fifth Circuit to review the BIA's decision. Id. Citing its decision in Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), the Fifth Circuit denied Dada's petition, holding that the filing of a motion to reopen does not suspend the voluntary departure period. See id.



Should the timely filing of a motion to reopen removal proceedings under section 1229a(c)(7) of Immigration and Nationality Act ("INA"), 8 U.S.C. � 1101 et seq., toll a voluntary departure period granted under section 1229c of the Act? The case of Samson Taiwo Dada has brought this question before the United States Supreme Court. The Court's decision in Dada v. Mukasey will resolve a circuit split over whether a motion to reopen suspends the period of voluntary departure. An outcome in this case will impact courts' interpretation of INA provisions governing motions to reopen filed within voluntary departure periods. Dada will also influence aliens' decisions to request voluntary departure and, if granted voluntary departure, to file legal claims during the granted period.

Parties' Arguments

Dada argues that immigration officials should interpret the INA to allow timely-filed motions to reopen to toll voluntary departure periods. See Brief for Petitioner at 11. Without tolling, Dada claims, the outcome of motions will depend upon arbitrary government action. Id. at 12. Dada further claims that the Government's refusal to toll the voluntary departure period would hinder the ability of aliens to appeal the decisions in their removal proceedings. Id. at 11.

The Attorney General responds that Dada's motion to reopen should not delay the period within which the alien must depart from the United States. Brief for Respondent at 14. The Attorney General argues that Congress did not intend motions to extend the voluntary departure period. Id. at 15. The Attorney General further contends that the Board of Immigration Appeals ("BIA") has discretion over the tolling issue and permitting tolling in this case would be inconsistent with prior BIA decisions. See id. at 16.

Implications of Possible Outcomes

An outcome in this case will influence aliens' decisions to pursue post-removal remedies. If the United States Supreme Court decides in favor of Dada and allows motions to reopen to toll voluntary departure periods, aliens may more vigorously pursue post-removal remedies. Under current law, an alien granted voluntary departure who seeks to reopen removal proceedings faces a dilemma. If the alien leaves the United States within the departure period, the alien's motion to reopen is deemed withdrawn. Brief for Petitioner at 2. However, if the alien overstays the period, he or she risks fines and disqualification for reopening. Id. at 2, 8. Following a decision in favor of Dada, aliens would no longer face this Hobson's choice.

On the other hand, if the Supreme Court decides in favor of the Attorney General and does not permit tolling, aliens may be more hesitant to take advantage of post-removal remedies. This is because the outcome of aliens' post-removal motions could be subject to arbitrary decision-making. Brief for Petitioner at 12. Whether aliens are deported ultimately would depend upon whether courts efficiently resolve aliens' post-removal motions. Id. However, not tolling would discourage aliens from making futile motions to reopen. Brief for Respondent at 34.

Adil Chedad, an individual who has a pending similar case, disagrees with the Fifth Circuit's interpretation of the motion to reopen and voluntary departure provisions. Brief of Adil Chedad at 4. Chedad contends that limiting voluntary departure to the stipulated sixty-day period would render meaningless the statutory right to reopen cases, because the BIA rarely considers such motions within the sixty-day opening. Id. at 4. Congress, the argument goes, did not intend the timing of the provisions to conflict. Id. Chedad also argues that Congress did not intend the voluntary departure provision to negatively affect aliens who are in good standing with the Government while not affecting aliens ineligible for voluntary departure. Id. at 5.

The American Immigration Law Foundation ("AILF"), American Immigration Lawyers Association, and Catholic Charities Community Services assert that the voluntary departure provision does not benefit aliens. Brief of American Immigration Law Foundation at 3. The AILF argues that aliens often do not knowingly request voluntary departure and that once granted permission, many aliens do not find themselves in a better situation. Id. The AILF also suggests that aliens are unlikely to file motions to reopen solely to delay departure given the expense and complicated administrative requirements associated with such motions. Id. at 4.



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.



The Supreme Court's decision in Dada's case will resolve the circuit courts' conflicting interpretations of the voluntary departure and motion to reopen provisions. A decision in Dada's favor will result in the tolling of the voluntary departure period when legal claims are brought within this period. Tolling would enable aliens eligible for voluntary departure to stay in the United States until their claims are resolved but may undermine the specific statutory time limits on the voluntary departure period. On the other hand, a decision in the Attorney General's favor would result in the strict adherence to the time limitations placed on voluntary departure periods. However, a no-tolling provision may discourage aliens from requesting voluntary departure for fear that their request will indirectly result in the waiver of the right to bring legal claims after removal proceedings have taken place.


Prepared by: Tiffany Sepulveda

Edited by: Ferve Ozturk


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