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Dada v. Mukasey - 554 U.S. 1, 128 S. Ct. 2307 (2008)

Rule:

To safeguard the right to pursue a motion to reopen for voluntary departure recipients, an alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen. As a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure; or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion. If the alien selects the latter option, he or she gives up the possibility of readmission and becomes subject to the immigration judge's alternate order of removal. 8 C.F.R. § 1240.26(d). The alien may be removed by the Department of Homeland Security within 90 days, even if the motion to reopen has yet to be adjudicated. 8 U.S.C.S. § 1231(a)(1)(A). But the alien may request a stay of the order of removal, and, though the Board of Immigration Appeals (BIA) has discretion to deny the motion for a stay, it may constitute an abuse of discretion for the BIA to do so where the motion states nonfrivolous grounds for reopening.

Facts:

Petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came to the United States in April 1998 on a temporary nonimmigrant visa, which he overstayed. In 1999, petitioner alleged, he married an American citizen. Dada’s wife filed an I-130 Petition for Alien Relative on his behalf. The necessary documentary evidence was not provided, however, and the petition was denied in February 2003. Thereafter, Department of Homeland Security (DHS) charged Dada with being removable under the Immigration and Nationality Act for overstaying his temporary nonimmigrant visa. The Immigration Judge (IJ) denied the request for a continuance pending adjudication of a second I-130 petition, found Dada eligible for removal, and granted his request for voluntary departure under 8 U.S.C. § 1229c(b). The Board of Immigration Appeals (BIA) affirmed and ordered Dada to depart within 30 days or suffer statutory penalties. Two days before the end of the 30-day period, Dada sought to withdraw his voluntary departure request and filed a motion to reopen removal proceedings under § 1229a(c)(7), contending that new and material evidence demonstrated a bona fide marriage and that his case should be continued until resolution of the second I-130 petition. After the voluntary departure period had expired, the BIA denied the request, reasoning that an alien who has been granted voluntary departure but did not depart in a timely fashion was statutorily barred from receiving adjustment of status. It did not consider Dada's request to withdraw his voluntary departure request. The Fifth Circuit affirmed.

Issue:

Should Dada be given an opportunity to withdraw his voluntary departure request, in light of new and material evidence?

Answer:

Yes.

Conclusion:

The Court held that an alien must be permitted an opportunity to withdraw a motion for voluntary departure, provided the request was made before expiration of the departure period. According to the Court, to safeguard the right to pursue a motion to reopen for voluntary departure recipients, an alien had to be permitted to withdraw, unilaterally, a voluntary departure request before the departure period expired, without regard to the merits of the motion to reopen. The alien then had the option either to voluntarily depart or remain in the United States to pursue an administrative motion. If he remained and pursued the administrative motion, he gave up the possibility of readmission and became subject to the alternate order of removal. The Court averred that the request to withdraw the motion for voluntary departure should have been granted without regard to the merits of the adjustment of status petition, to allow pursuit of the motion to reopen.

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