Supreme Court: Dada v. Mukasey and Voluntary Departure
On June 16, 2008, the U.S. Supreme Court issued an important immigration law in Dada v. Mukasey.
The case involved the issue of voluntary departure and the poor choice certain individuals must make between abiding by a voluntary departure order or filing a motion to reopen their removal case if they believe new facts justify a re-opening.
A person in removal proceedings who has asked for voluntary departure as an alternative form of relief from removal and who has been given the standard 30-60 days (under some circumstances, it can be up to 120 days) to voluntarily depart absolutely must depart the U.S. before the deadline or suffer serious consequences. If one fails to abide by their order of voluntary departure, the immigration court order automatically becomes an order of removal and there are civil and criminal penalties too.
On the other hand, one who has been granted voluntary departure might have a legitimate reason to ask that their case be re-opened if new facts develop or other evidence that could not be submitted earlier is now available. If they file the motion to re-open but leave the U.S. as required under their order of voluntary departure, the motion to re-open is abandoned. So, it’s a poor choice to have to make.
The Supreme Court recognized the tension between the motion to re-open provisions and the voluntary departure provisions and ruled that a person must be permitted to withdraw their request for voluntary departure as long as they do it before the deadline by which they were ordered to depart. In this way, the person can freely pursue their motion to re-open with suffering the consequences of failing to voluntarily depart.
However, it’s not a clear win for aliens because the Supreme Court specifically did NOT hold that the voluntary departure period was stayed while a motion to re-open is pending. So the dilemma really is still there—if one wants to file a motion to re-open without suffering the consequences of failing to voluntarily depart, one must give up voluntary departure and its benefits. If the motion to re-open is denied, the individual has lost out on voluntary departure and is subject to a removal order and its 10 year bar on re-entry.
The decision may actually have limited affect because the USCIS has proposed a regulation by which the filing of a motion to re-open would automatically terminate an order of voluntary departure, something the Court said “warrants respectful consideration.”
