Parties split over withdrawal approach in Dada

In supplemental briefs filed with the Court earlier this afternoon, lawyers for the government and a Nigerian citizen sharply disagreed over whether aliens should be permitted to withdraw previously granted requests for voluntary departure before their time to leave the country has expired. Attorneys for Samson T. Dada, the petitioner in the case, said allowing aliens to withdraw such requests appropriately reconciled two competing provisions of the Immigration and Nationality Act, while the government said nothing in the statute or federal regulations permitted such an approach. (Click here for Dada’s brief and here for the government’s. For previous filings in the case, No. 06-1181, Dada v. Mukasey, click here.)

The controversy stems from two seemingly conflicting provisions of the INA, one which permits aliens eligible for deportation to instead leave the country voluntarily within 60 days, and another which gives any alien facing removal the ability to reopen their cases on the basis of new evidence within 90 days. The Court granted certiorari to resolve a split between four circuit courts that said the time period in which an alien must leave the country under an order of voluntary departure should toll (i.e. stop) upon the filing of a timely motion to reopen, and three which held it should not. Following the grant of certiorari, the Justice Department proposed a regulation (available here) offering a third approach: that an order of voluntary departure would simply terminate upon the filing of a motion to reopen.

Filed nearly three weeks after oral argument, today’s briefs came in response to a Court order – available here – seeking an answer to a question that seemed to puzzle numerous Justices: Why should an alien who previously requested voluntary departure, but who later decided to reopen his case on the basis of new facts, not be allowed to simply withdraw his request before the departure window has expired?

Noting that Dada himself made just such a request before the Board of Immigration Appeals, his attorneys argued in today’s filing that the Court should permit withdrawal if they decline to adopt a tolling construction. Doing so would do nothing more than place such aliens in the same position as those that never requested or were deemed ineligible for voluntary departure, they argued, while allowing aliens granted the privilege to avoid the “unworkable trap” resulting from the government’s interpretation.

As a practical matter, Dada contends, permitting an alien to withdraw a voluntary departure request in order to reopen his case would be no different than the government’s proposed solution of automatic termination in the event of such a filing. In any event, the brief argues, the Justice Department already permits aliens to withdraw voluntary departure requests in some circumstances – citing, as one example, a request that happened to be filed on the exact same day Dada filed his motion to reopen.

The government’s brief maintains that nothing in the INA or federal regulations either permits an alien granted voluntary departure to unilaterally withdraw his request, or requires the BIA to permit withdrawal. Citing the Restatement of Contracts, the government calls “black-letter law” the proposition one party cannot simply renege on a voluntarily incurred obligation immediately before his own performance.

If Dada wanted to withdraw his request, the government argues, he should have done so in the months between his appeal from the immigration judge to the BIA. The government further contends the BIA retained discretion to deny Dada’s request if it concluded he had presented no “new facts” in support of his motion to reopen. In a footnote, the government says that on January 10 – three days after oral argument – the Department of Homeland Security denied Dada’s green card petition on grounds it was based on a “sham” marriage. (Dada’s supplemental brief makes no mention of the development.)

Reply briefs, if any, are due by 2 p.m. next Friday, Feb. 1.