Proposed DOJ regulation would resolve immigration question in Dada

In a move with potential consequences for the pending case Dada v. Mukasey (06-1181), the Justice Department earlier today published a proposed regulation that, if adopted, would resolve the precise question at issue – i.e. whether the time in which a noncitizen must leave the country under an order of voluntary departure should automatically toll upon the filing of a motion to reopen removal proceedings. In September, the Supreme Court granted certiorari to resolve a split between four circuits (the 3rd, 8th, 9th and 11th) that found the deadline should toll and three circuits (the 1st, 4th and 5th) that found it should not. Under the proposed rule, whose entry in the Federal Register discusses the split and grant of certiorari in Dada (see here), any voluntary departure order would simply terminate upon the filing of a motion to reopen or petition for judicial review.

The case, scheduled for oral argument January 7, involves Nigerian citizen Samson T. Dada, who overstayed the temporary visa on which he entered the country almost a decade ago. He subsequently married a U.S. citizen but was found eligible for deportation after the couple failed to submit the proper paperwork with his green card petition. In late 2005 the Board of Immigration Appeals (BIA), affirming an immigration judge’s prior grant of voluntary departure, gave Dada thirty days to leave the country. Two days before his window expired, however, Dada sought to reopen his case to process a subsequent application. At the same time, he asked that his previous grant of voluntary departure be withdrawn. The BIA denied both requests and, because Dada had overstayed the thirty-day departure period, found him ineligible to reapply for a green card for at least ten years. The Fifth Circuit affirmed.

If enacted, the proposed regulation would only apply to orders of voluntary departure issued after the effective date of the final rule. While the Court could thus not apply the regulation to Dada himself, its publication will almost surely be discussed during oral argument. Legal sources also said the government could, in theory, strike an agreement with Dada to hold the case in abeyance pending the final outcome of the regulation. In its original brief in opposition filed last June, the government cited the issuance of forthcoming regulations as a reason the Court should deny certiorari (see page 15).

Dada’s merits brief was submitted in early November (available here). The government’s brief is due at the Court by 2 p.m. on Monday.