Monday, July 7, 2008

Voluntary Departure, conclusion of removal proceedings

Supreme Court Holds that Alien Must Be Allowed to Withdraw Request for Voluntary Departure but Voluntary Departure Is Not Automatically Tolled
Dada v. Mukasey, 128 S. Ct. 2307 (U.S. June 16, 2008)

Petitioner, a native and citizen of Nigeria, who had requested and been granted voluntary departure, petitioned for review of Board of Immigration Appeals' (BIA) denial of petitioner's request to withdraw voluntary departure. The Court of Appeals for the Fifth Circuit, 207 Fed.Appx. 425, affirmed BIA's denial of request to withdraw voluntary departure.

Holding: The Supreme Court, Justice Kennedy, held that to safeguard the right to pursue a motion to reopen for voluntary departure recipients, petitioner had to be permitted an opportunity to withdraw a motion for voluntary departure, provided the request was made before the departure period expired. Reversed and remanded.

Justice Scalia, with whom Chief Justice Roberts and Justice Thomas joined, dissented and filed opinion.

Justice Alito dissented and filed opinion.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. 8 U.S.C.S. § 1229a(c)(7). The Act also provides, however, that if the alien's request for voluntary departure is granted after he or she is found removable, the alien is required to depart within the period prescribed by immigration officials, which cannot exceed 60 days. 8 U.S.C.S. § 1229c(b)(2). Failure to depart within the prescribed period renders the alien ineligible for certain forms of relief, including adjustment of status, for a period of 10 years. 8 U.S.C.S. § 1229c(d)(1). Pursuant to regulation, however, departure has the effect of withdrawing the motion to reopen. 8 C.F.R. § 1003.2(d) (2007).

Voluntary departure is a discretionary form of relief that allows certain favored aliens -- either before the conclusion of removal proceedings or after being found deportable -- to leave the country willingly.

When voluntary departure is requested at the conclusion of removal proceedings, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides a voluntary departure period of not more than 60 days. 8 U.S.C.S. § 1229c(b)(2). The alien can receive up to 120 days if he or she concedes removability and requests voluntary departure before or during removal proceedings. 8 U.S.C.S. § 1229c(a)(2)(A). Appropriate immigration authorities may extend the time to depart but only if the voluntary departure period is less than the statutory maximum in the first instance. The voluntary departure period in no event may exceed 60 or 120 days for § 1229c(b) and § 1229c(a) departures, respectively. 8 C.F.R. § 1240.26(f) (2007).

The voluntary departure period typically does not begin to run until immigration administrative appeals are concluded. 8 U.S.C.S. § 1101(47)(B). 8 U.S.C.S. § 1229c(b)(1) provides that the Attorney General may permit voluntary departure at the conclusion of removal proceedings.

An alien involuntarily removed from the United States is ineligible for readmission for a period of 5, 10, or 20 years, depending upon the circumstances of removal. 8 U.S.C.S. § 1182(a)(9)(A)(i), (ii). An alien who makes a timely departure under a grant of voluntary departure, on the other hand, is not subject to these restrictions -- although he or she otherwise may be ineligible for readmission based, for instance, on an earlier unlawful presence in the United States, § 1182(a)(9)(B)(i).

A motion to reopen is a form of procedural relief that asks the Board of Immigration Appeals to change its decision in light of newly discovered evidence or a change in circumstances since the hearing. Like voluntary departure, reopening is a judicial creation later codified by federal statute. The reopening of a case by the immigration authorities for the introduction of further evidence is treated as a matter for the exercise of their discretion; where the alien was given a full opportunity to testify and to present all witnesses and documentary evidence at the original hearing, judicial interference has been deemed unwarranted.

To safeguard the right to pursue a motion to reopen for voluntary departure recipients, an alien must be permitted an opportunity to withdraw a motion for voluntary departure, provided the request is made before the departure period expires; 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. Immigration and Nationality Act, §§ 240(c)(7), 240B(b), (d)(1), 8 U.S.C.A. §§ 1229a(c)(7), 1229c(b), (d)(1).

"The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that--

"(A) the alien has been physically present in the United States for a period of at least one year im- mediately preceding the date the notice to appear was served under section 1229(a) of this title;

"(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure;

"(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and

"(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so." 8 U.S.C. § 1229c(b)(1).

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