Dada v. Mukasey

The Supreme Court is going to decide this Term the fate of immigrants who try to get their cases reopened after voluntarily agreeing to leave the country.

The case, Dada v. Mukasey, No. 06-1181, arose when Nigerian immigrant Samson Dada married an American citizen and tried to win the right to stay in the United States legally. Dada entered the country in April 1998 on a visa permitting him a four-month stay. Dada did not return to Nigeria as scheduled, and eventually wed an American woman.

Shortly after the wedding, Dada's wife filed a "immediate relative" visa petition for him. Four years later, the Department of Homeland Security decided that the couple had abandoned the petition because they had failed to supply documentation of their marriage. As a result, the petition was denied. A year later, the government sought to remove Dada from the country. His wife responded by filing a second petition to legalize him. He then asked an immigration judge to continue his case pending the outcome of the legalization petition. The judge, explaining that such petitions took about three years to decide, refused to extend his removal proceedings. However, she did grant Dada's alternate request to depart voluntarily rather than be deported.

Dada appealed this decision to the Board of Immigration Appeals, which effectively delayed the effective date for his voluntary departure. The Board eventually affirmed the judge's opinion, and set a December 4, 2005 deadlne for Dada to leave the country.

Two days before the deadline, Dada asked the Board to reopen his case and remand it to the immigration judge in order to seek an "adjustment of status" based on the pending legalization petition. He also attempted to withdraw his request for voluntary departure.

Two months later, well after the departure deadline, the Board denied Dada's motion to reopen the case. It also noted that because Dada had overstayed his legal welcome, he was "statutorily barred" from seeking adjustment of status, even though the government otherwise would have had the discretion to grant him relief. The Fifth Circuit Court of Appeals affirmed the Board's decision.

In asking the Supreme Court to step in, Dada argued that the Fifth Circuit opinion was a dramatic departure from the approach taken in the Third, Eighth and Ninth Circuits. He also argued that the Fifth Circuit's view of the federal immigration statute hamstrings aliens who agree to leave the United States voluntarily: It holds that those who do leave are deemed to have abandoned their motions to reopen, while directing that those who do not leave are barred from getting the relief they seek.

The government countered, in opposing certiorari, that only one in ten aliens agree to leave the country voluntarily. When they do so, they agree to abide by the more specific provisions governing willing departure and forfeit reliance on the general provisions governing reopening of cases.

The Court is set to hear the case in the next several months.

A divided Supreme Court sided with immigrants who try to get their cases reopened after voluntarily agreeing to leave the country.

The case, Dada v. Mukasey, No. 06-1181, arose when Nigerian immigrant Samson Dada married an American citizen and tried to win the right to stay in the United States legally. Dada entered the country in April 1998 on a visa permitting him a four-month stay. Dada did not return to Nigeria as scheduled, and eventually wed an American woman.

Shortly after the wedding, Dada's wife filed a "immediate relative" visa petition for him. Four years later, the Department of Homeland Security decided that the couple had abandoned the petition because they had failed to supply documentation of their marriage. As a result, the petition was denied. A year later, the government sought to remove Dada from the country. His wife responded by filing a second petition to legalize him. He then asked an immigration judge to continue his case pending the outcome of the legalization petition. The judge, explaining that such petitions took about three years to decide, refused to extend his removal proceedings. However, she did grant Dada's alternate request to depart voluntarily rather than be deported.

Dada appealed this decision to the Board of Immigration Appeals, which effectively delayed the effective date for his voluntary departure. The Board eventually affirmed the judge's opinion, and set a December 4, 2005 deadlne for Dada to leave the country.

Two days before the deadline, Dada asked the Board to reopen his case and remand it to the immigration judge in order to seek an "adjustment of status" based on the pending legalization petition. He also attempted to withdraw his request for voluntary departure.

Two months later, well after the departure deadline, the Board denied Dada's motion to reopen the case. It also noted that because Dada had overstayed his legal welcome, he was "statutorily barred" from seeking adjustment of status, even though the government otherwise would have had the discretion to grant him relief. The Fifth Circuit Court of Appeals affirmed the Board's decision.

In asking the Supreme Court to step in, Dada argued that the Fifth Circuit opinion was a dramatic departure from the approach taken in the Third, Eighth and Ninth Circuits. He also argued that the Fifth Circuit's view of the federal immigration statute hamstrings aliens who agree to leave the United States voluntarily: It holds that those who do leave are deemed to have abandoned their motions to reopen, while directing that those who do not leave are barred from getting the relief they seek.

The government countered, in opposing certiorari, that only one in 10 aliens agree to leave the country voluntarily. When they do so, they agree to abide by the more specific provisions governing willing departure and forfeit reliance on the general provisions governing reopening of cases.

On June 16, a closely divided Supreme Court reversed the Fifth Circuit's decision.

"The conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days remains untenable if these are the only two choices available to the alien," Justice Anthony M. Kennedy writes for the 5-4 majority. "Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires."

In dissent, Justice Antonin Scalia -- joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas -- declared that "the court lacks the authority to impose its chosen remedy."

In a separate dissent, Justice Samuel A. Alito Jr. wrote that while he agrees with the majority on the first question, "as to the second question, the Court’s reasoning escapes me."