Dada reply says proposed reg weakens government argument

Earlier today, lawyers filed the reply brief (available here) in No. 06-1181, Dada v. Muskasey, arguing among other things that a recent Justice Department regulation “undercuts” the government’s interpretation of the statute at issue and offers the Court an alternative way to resolve the underlying circuit split.

The question presented asks whether the time during which noncitizens must leave the country under an order of voluntary departure should automatically toll if they subsequently seek to reopen their removal proceedings. Four circuits have held that the deadline should toll, while three circuits have held that it should not. Under the proposed regulation (available here), an order of voluntary departure would simply terminate upon the filing of a motion to reopen or petition for judicial review.

In Friday’s filing, lawyers for Nigerian native Samson T. Dada argue that the regulation “apparently rejects the Government’s view that Congress intended that the voluntary departure bargain requires the forfeiture of motions to reopen.” The Justices, the brief says, can “interpret that statute consistent with the solution in the proposed rule: to permit an alien granted voluntary departure to withdraw the voluntary departure request and instead be subject to a final order of removal. Such an alien would be placed in the same position as other aliens (such as criminal aliens and others who are not eligible for voluntary departure) and could await a ruling on his motion to reopen without being subject to additional penalties.”

The merits brief for petitioner Dada is available here, and for respondent Michael Mukasey here. An amicus brief from the American Immigration Lawyers Association is available here.