In the case of Dada v. Mukasey, the Court was faced with the issue of reconciling a problematic area in immigration law — how to treat aliens who voluntary agree to depart the U.S., but before their window to leave the country expired, sought to reopen their cases on the basis of new facts.
The petitioner, Samson Dada, a Nigerian, entered the U.S. in 1998 on a valid visa, permitting him to stay in the U.S. for four months. However, Dada did not return to Nigeria upon the expiration of his valid entry and eventually wed an American woman.
For failure to submit required documentation, the petition of Dada’s wife for an “immediate relative” was denied. One year after the denial, the government sought to remove Dada from the country. His wife responded by filing a second petition to legalize Dada’s status in the U.S. Dada then asked an immigration judge to continue his case pending the outcome of the legalization petition. As such petitions took about three years to decide, the judge refused to extend his removal proceedings. However, she did grant Dada’s alternate request to depart voluntarily rather than be deported.
Two days before his departure window ended, Dada filed a motion to reopen his case. He also asked that his earlier grant of voluntary departure be withdrawn.
Circuit courts have varying positions on such a situation. Four circuit courts said that the departure period must be tolled, until immigration officials could resolve the new petition. However, the Board, along with other circuit courts said that, while aliens who agreed to depart voluntarily retained the right to file motions to reopen, they remained obligated to leave the country whether or not their claim had already been resolved.
On June 16, 2008, the court ruled 5-4, that someone who is in the U.S. illegally may withdraw his voluntarily agreement to depart and continue to try to get approval to remain in the country.
The majority opinion was penned by Justice Kennedy. Full text of the decision is available here.
Posted by immigrationboss 