Dada v. Mukasey: The Supreme Court Addresses the Conflict between th Motion to Reopen Voluntary Departure Provisions
By T. Douglas Stump and Kelli J. Stump
On June 16, 2008, the U.S. Supreme Court issued its decision in Dada v. Mukasey,1 holding that an individual who has been granted voluntary departure must be permitted to request withdrawal of such grant and proceed on a motion to reopen. The decision resolved the split among several circuit courts and disagreed with those circuit courts that had previously held the voluntary departure period is tolled upon the timely filing of a motion to reopen. This article will briefly discuss the conflict between the voluntary departure and motion to reopen provisions and address the court’s resolution of the conflict in Dada.
VOLUNTARY DEPARTURE AND THE MOTION TO REOPEN PROVISIONS: THE ‘CATCH-22’
Individuals placed in immigration removal proceedings are often given the opportunity to voluntarily depart the United States provided they are able to meet certain eligibility requirements.2 An order of voluntary departure cannot exceed 120 days, and if granted at the conclusion of proceedings, the period cannot exceed 60 days.3 A grant of voluntary departure is often desirable because it allows the individual to leave the United States without being subject to the consequences that result from an order of removal. Serious consequences result, however, when one fails to depart the United States before the lapse of the voluntary departure date. For instance, the individual may be subject to a monetary fine of up to $5,000, and he or she is subject to a 10-year bar4 from several forms of relief including adjustment of status, cancellation of removal, change of status, registry and voluntary departure.5 Further, the voluntary departure order becomes a removal order upon failure to timely depart.6
The voluntary departure period begins to run immediately from the time the immigration judge enters the order. If an individual is granted voluntary departure at the close of removal proceedings and then timely appeals his or her case to the Board of Immigration Appeals (BIA), the voluntary departure period is tolled.7 If the appeal is dismissed, the BIA will reinstate the voluntary departure for a period not exceeding 60 days.8 While the voluntary departure period is tolled during the pendency of an appeal before the BIA, it has repeatedly held that the voluntary departure period is not tolled upon the filing of a motion to reopen.9 Thus, the consequences for failure to timely depart become an issue when an individual files a motion to reopen his or her case because the BIA will unlikely decide the case before lapse of the voluntary departure period.
Since 1996, an individual under a final order of removal is entitled to only one motion to reopen, absent limited exceptions, and has only 90 days to file a motion to reopen his case.10 Thus an issue arises because the voluntary departure period usually expires before the deadline to file the motion to reopen. Because the BIA has held that the voluntary departure period is not tolled upon the filing of a motion to reopen, an individual has very little time to file the motion and obtain a decision before lapse of the voluntary departure period. For instance, if the BIA’s decision dismissing an appeal reinstates voluntary departure for 60 days, in order to avoid the consequences for failure to timely depart, the individual must discover the basis for reopening, file the motion to reopen, and obtain a decision within 60 days. Such turnaround is highly unlikely, as the “BIA rarely if ever rules on a motion to reopen before an alien’s voluntary departure period has expired.”11 While an individual may apply for an extension of the voluntary departure, an extension is unlikely because the voluntary departure period cannot exceed 60 days in most cases, as an individual filing a motion to reopen likely received voluntary departure at the conclusion of proceedings.12 Additionally, if an individual departs the United States for any reason, including voluntary departure, while a motion to reopen is pending, a conflict arises because the motion is deemed abandoned.13 Thus, prior to Dada, many individuals found themselves in a “Catch-22” because if they left the country to avoid the voluntary departure consequences, they abandoned their motion to reopen. Alternatively, if they remained in the United States to pursue their case, they risked the consequences associated with failing to depart.14
PRE-DADA CIRCUIT SPLIT: TOLLING OF THE VOLUNTARY DEPARTURE PERIOD
The conflict between the voluntary departure and motion to reopen provisions resulted in a split among the circuits regarding the interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) changes to the provisions and whether or not the timely filing of a motion to reopen tolled the voluntary departure period. Prior to Dada, the 3rd, 8th, 9th and 11th Circuits had found that the timely filing of a motion to reopen automatically tolled the voluntary departure period if filed prior to the voluntary departure deadline.15 The 1st, 4th and 5th Circuits concluded that the voluntary departure period was not tolled.16
The first court to address the issue was the 9th Circuit in Azarte v. Ashcroft. In Azarte, the court granted a petition for review of the BIA’s denial of a motion to reopen on the basis that the petitioners were ineligible for relief because they had overstayed the voluntary departure period at the time of the decision.17 After the BIA dismissed the petitioners’ appeal and reinstated voluntary departure, the petitioners discovered new evidence and before lapse of their voluntary departure period, they filed a motion to reopen based on the new evidence and on the basis of ineffective assistance of counsel.18 Six months later, after lapse of the voluntary departure period, the BIA denied the motion to reopen on the basis that the petitioners overstayed the voluntary departure period and were consequently ineligible for the relief requested should the case be reopened.19
The petitioners timely filed a petition for review in the U.S. District Court for the 9th Circuit Court of Appeals. The 9th Circuit considered Matter of Shaar, the BIA precedent holding that the voluntary departure period is not tolled upon the filing of a motion to reopen, and the court noted that Shaar applied to pre-IIRIRA statutes.20 Before IIRIRA, there were no time limits on motions to reopen or voluntary departure.21 Individuals were given long periods to depart, which could be extended, and motions to reopen were never time-barred.22 Citing to traditional canons of statutory construction, the 9th Circuit noted that new statutes require new interpretation and it must look at the statute as a whole and give meaning to all its provisions.23 The court noted that the new motion to reopen provisions did not “establish a time by which the BIA must make its decision regarding a motion to reopen.”24 Consequently, the court found that the BIA’s interpretation deprived the motion to reopen provision of meaning as it eliminated the availability of motions to people granted voluntary departure.25 As a result, the court held that the voluntary departure period is tolled when an individual files a motion to reopen before lapse of the voluntary departure date and when he or she requests stay of deportation or an extension of voluntary departure.26
The 3rd, 8th and 11th Circuits later agreed with the 9th Circuit and held that the filing of a motion to reopen prior to lapse of the voluntary departure date tolled the voluntary departure period pending a decision on the motion to reopen.27 The 5th Circuit was the first court to decide otherwise and hold that the filing of a motion to reopen before the lapse of the voluntary departure date did not toll the voluntary departure period.
In Banda-Ortiz v. Gonzales, the 5th Circuit considered the policy regarding voluntary departure and stated that “voluntary departure is the result of an agreed-upon exchange of benefits between an alien and the Government.”29 “It is not granted ‘unless the alien requests such voluntary departure and agrees to its terms and conditions.’”30 The court held that tolling the voluntary departure period for motions to reopen would deprive the government of its benefit in granting voluntary departure.31 The court compared the situation to “the accused in a criminal prosecution demand[ing] not only the chance of acquittal at trial but also the benefits that go with a guilty plea and the acceptance of responsibility.”32 Thus, in light of the purpose behind voluntary departure, the 5th Circuit held that the BIA reasonably interpreted the governing statutes to prevent the tolling of the voluntary departure period.33 The court further noted that an alien is permitted to file the motion to reopen, but it must be resolved before the agreed upon voluntary departure date and to avoid interference with the government’s interest in the finality of an alien’s voluntary departure.34 The 1st and 4th Circuits later followed Banda-Ortiz and held that the voluntary departure period is not tolled upon the filing of a motion to reopen.35 The Supreme Court granted certiorari to resolve the disagreement among the Court of Appeals in Dada v. Mukasey.36
DADA V. MUKASEY: YOU CAN HAVE YOUR CAKE, BUT YOU CAN’T EAT IT, TOO.
In Dada, the Supreme Court granted certiorari after the 5th Circuit denied a petition for review the denial of a motion to reopen by the BIA.37 Similar to the other cases discussed herein, the BIA denied Dada’s motion to reopen on the basis he overstayed the voluntary departure period despite filing the motion prior to the voluntary departure deadline.38 Dada also sought to withdraw the voluntary departure request prior to the voluntary departure deadline. Dada filed a petition for review in the 5th Circuit.39 Relying on its decision in Banda-Ortiz, the 5th Circuit held that the BIA’s reading of the applicable statutes was reasonable and refused to toll the voluntary departure period.40
The Supreme Court held oral argument on Jan. 7, 2008, to resolve the conflict between the motion to reopen and voluntary departure provisions. After argument, the court ordered supplemental briefing regarding whether an alien may be permitted to withdraw his voluntary departure request prior to lapse of the voluntary departure deadline.41 In its decision six months later, the court considered the statute for motions to reopen and voluntary departure and the purpose for each mechanism. The court noted “the purpose of a motion to reopen is to ensure a proper and lawful disposition… [and expressed its reluctance] to assume that the voluntary departure statute was designed to remove this important safeguard.”42 Consequently, the court decided that it must “read the Act to preserve the alien’s right to pursue reopening while respecting the Government’s interest in the quid pro quo of the voluntary departure arrangement.”43
In doing so, the court held that while it did not find statutory authority to toll the voluntary departure period because the government would lose its benefit of a cost-free departure, an alien must be permitted to withdraw his request for voluntary departure before expiration of the departure period and without regard to the underlying merits of the motion to reopen.44 Thus, pursuant to Dada, the alien has the choice to either abide by the terms of voluntary departure or, alternatively, to forfeit voluntary departure and risk a removal order to remain in the United States to pursue the motion, but the alien cannot have both.45 The court stated that allowing withdrawal of the voluntary departure request does not strip the government of its benefit because an alien who requests withdrawal is placed in the same position as an alien who did not receive voluntary departure.46 Similarly, the alien benefits if his motion is granted, as he will not suffer the consequences for failing to depart, but he suffers the consequences of a removal order if his motion is denied.47
Interestingly, the court hinted to future review as it noted that “a more expeditious solution to the untenable conflict between the voluntary departure scheme and the motion to reopen might be to permit an alien who has departed the United States to pursue a motion to reopen post-departure, much as Congress has permitted with respect to judicial review of a removal order.”48 Note, however, as previously discussed, the regulations state that an alien who departs the United States during the pendency of a motion to reopen is deemed to have abandoned the motion.49 The court stated that because the regulation was not challenged in Dada, it could not be considered.50 Thus, until that issue is presented and decided, an alien must withdraw his request for voluntary departure in order to pursue a motion to reopen.51
Although the Dada decision is considered to be a victory in the immigration community because it forces the government to permit withdrawals of the voluntary departure request and allow an individual to proceed on a motion to reopen, immigration advocates across the country remain unsatisfied. If the voluntary departure period is not tolled, the alien remains vulnerable because the filing of a motion to reopen does not protect the alien from removal. An alien must file a stay of removal with the same immigration authorities that ordered the original removal, and stays of deportation are difficult to obtain. Such situation places yet another hurdle before the alien because as previously discussed, a departure, including removal, from the United States renders the motion abandoned. Arguably, if immigration authorities execute the alien’s removal before a decision is reached on the motion to reopen, the alien is effectively prevented from pursuing the motion to reopen – the very relief Dada sought to safeguard.52
1. 128 S. Ct. 2307 (2008).
2. INA §240B, 8 U.S.C. §1229c
3. See generally INA §240B(a), 8 U.S.C. §1229c(a).
4. The rules pertaining to voluntary departure changed in 1996 with the implementation of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). IIRIRA significantly changed the voluntary departure rules as it limited the time individuals may be permitted to depart and limiting any extensions of the voluntary departure period. Additionally, under pre-IIRIRA voluntary departure, individuals who failed to depart the United States were subject to a five year bar of relief. Compare INA §240B(d) with INA §242B(e)(2)(A) (1995).
5. INA §240B(d), 8 U.S.C. §1229b(d)
6. 8 C.F.R. §241.7
7. Matter of Villegas Aguirre, 13 &&N Dec. 139 (BIA 1969).
8. Matter of A-M-, 23 I&N Dec. 737 (BIA 2005).
9. Matter of Shaar, 21 I&N Dec. 541 (BIA 1996).
10. INA §240(c)(7), 8 U.S.C. §1229a(c)(7). IIRIRA changed the status of motions to reopen in 1996, changing them to a statutory form of relief. Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005).
11. Azarte, 394 F.3d at 1282.
12. 8 C.F.R §1240.26(f).
13. 8 C.F.R. §1003.2(d). Note that some circuits have held that an individual may continue to have his case reviewed if he departs, other circuits have upheld the validity of the provision. See William v. Gonzales, 499 F.3d 329 (4th Cir. 2007)(holding the Board has jurisdiction to adjudicate a motion post departure because the regulation barring motions to reopen filed after a person departs or is removed, 8 C.F.R. § 1003.2(d), is invalid because it conflicts with the motion to reopen statute.); But see Singh v. Gonzales, 468 F.3d 135 (2d Cir. 2006).
14. This is another issue because while some courts have held that the reopening of a case extinguishes the removal order, including the voluntary departure order, other courts have held that the reopening of a case does not reopen the grant of voluntary departure and failure to depart bars the individual from the relief sought in reopening. See Orichitch v. Gonzales, 421, F.3d 595 (7th Cir. 2005) (The act of reopening vacates a voluntary departure order and consequently eliminates any §240B(d) bar to relief); Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002)(the BIA’s granting of the motion to reopen means there is no longer a final decision to review); but see Wright v. Ouellette, 171 F.3d 8, 12 (1st Cir. 1999)(filing a motion to reopen is more akin to starting a new proceeding); Singh v. Gonzales, 468 F.3d 135 (2d Cir. 2006)(holding that the respondent is barred from adjustment of status because IJ’s granting of MTR does not vacate the effect of prior noncompliance with a voluntary departure order). While the Dada decision should prevent the voluntary departure consequences in future cases because petitioners will have withdrawn their voluntary departure request, the outcome of cases pending pre-Dada that are reopened and the petitioner did not request withdrawal of the voluntary departure grant remains unknown.
15. See Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005), Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005), Azarte v. Aschroft, 394 F.3d 1278 (9th Cir. 2005), and Ugokwe v. United States Att’y Gen., 453 F.3d 1325 (11th Cir. 2006).
16. See Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006), Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), and Chedad v. Gonzales, 497 F.3d 57 (1st Cir.2007).
17. Azarte, 394 F.3d at 1289.
18. Id. at 1281.
20. Id. at 1286-87.
21. 8 U.S.C. § 1254(e) (1995) (repealed 1996); 8 C.F.R. § 3.2 (1995).
22. Azarte, 394 F.3d at 1286.
23. Id. at 1287-88.
24. Id. at 1284.
25. Id. at 1288.
26. Id. at 1289.
27. See Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005), Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005), and Ugokwe v. United States Att’y Gen., 453 F.3d 1325 (11th Cir. 2006).
28. 445 F.3d 387 (5th Cir. 2006).
29. Banda-Ortiz v. Gonzales, 445 F.3d 387, 389 (5th Cir. 2006).
30. Id. (quoting 8 C.F.R. §240.25(c)).
31. Id. at 390.
32. Id. at 391 (quoting Alimi v. Ashcroft, 391 F.3d 888, 892 (7th Cir. 2004)).
35. See Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006), Chedad v. Gonzales, 497 F.3d 57 (1st Cir.2007).
36. Dada v. Mukasey, 128 S. Ct. 2307, 2312 (2008).
38. Id. at 2311-12
39. Id. at 2312
42. Id. at 2318.
44. Id. at 2319.
45. Id. at 2319-20.
46. Id. at 2320
49. 8 C.F.R. §1003.2(d). See also Note 13, supra.
50. Dada, 128 S. Ct. at 2320
52. See Note 13, supra.
About The Authors
T. Douglas Stump has more than 25 years of experience in a practice focused on employment-based immigration law, complex deportation, federal litigation and family immigration matters. He is national secretary and member of the executive committee for the 11,500-member American Immigration Lawyers Association. He is the past president of AILA Texas Chapter and an adjunct professor of immigration law. He is a frequent speaker and author on immigration law topics.
Kelli J. Stump is an associate with Stump & Associates. She focuses her immigration law practice on complex deportation, federal litigation, and family- and employment-based immigrant petitions. She has argued the voluntary departure issue twice in the 10th Circuit Court of Appeals and she is currently serving her second term as the Oklahoma AILA Immigration Customs Enforcement Liaison for the Texas Chapter of AILA.
Originally published in the Oklahoma Bar Journal -- Feb.14, 2009 -- Vol.80, No. 4