Dada v. Mukasey--Immigration Law Decision

About a month ago, noted NY Times Supreme Court columnist Linda Greenhouse pointed to a seemingly unexpected development in the jurisprudence of this year's Court: fewer than expected 5-4 decisions. Everyone had been thinking that the Court, divided between the four liberals (Stevens, Souter, Ginsburg, Breyer) and the four conservatives (Scalia, Thomas, Roberts, Alito), would be "Kennedy's Court." But, until last week there were only a few 5-4 decisions. Now, with the Guantanamo case and this case, we have two more 5-4 decisions. This one has to do with how you read two apparently contradictory provisions of the Immigration and Nationality Act, esp. 8 USC secs 1229a(c)(7) and 1229c(b) and (d)(1). How do you reconcile the provisions that allow an alien the right to file a motion to reopen his removal proceedings within 90 days of a departure order and the provisions requiring voluntary departure within 30 days of final order of departure? This essay summarizes the issue of the case and the decision of the Court (opinion by Kennedy). My previous essay gives you the complex factual and procedural issues in the case but I need to repeat some of the facts in order to understand what was at issue here.

Relevant Facts

"Petitioner, a native and citizen of Nigeria, alleges that he married an American citizen in 1999. His wife filed an I-130 Petition for Alien Relative on his behalf that was denied in 2003. The Department of Homeland Security (DHS) charged Dada with being removable under the Immigration and Nationality Act for overstaying his temporary nonimmigrant visa. The Immigration Judge (IJ) denied the request for a continuance pending adjudication of a second I-130 petition, found Dada eligible for removal, and granted his request for voluntary departure under 8 U.S.C. § 1229c(b). The Board of Immigration Appeals (BIA) affirmed and ordered Dada to depart within 30 days or suffer statutory penalties. Two days before the end of the 30-day period, Dada sought to withdraw his voluntary departure request and filed a motion to reopen removal proceedings under 8 U.S.C. § 1229a(c)(7), contending that new and material evidence demonstrated a bona fide marriage and that his case should be continued until resolution of the second I-130 petition. After the voluntary departure period had expired, the BIA denied the request, reasoning that an alien who has been granted voluntary departure but does not depart in a timely fashion is statutorily barred from receiving adjustment of status. It did not consider Dada's request to withdraw his voluntary departure request. The Fifth Circuit affirmed."

Legal Argument

Justice Kennedy began by describing the "voluntary departure" program, in effect when an alien willingly decides to leave the country after an order to leave is entered (or while still in trial for departure).

"Voluntary departure is discretionary relief that allows certain favored aliens to leave the country willingly. It benefits the Government by, e.g., expediting the departure process and avoiding deportation expenses, and benefits the alien by, e.g., facilitating readmission. To receive these benefits, the alien must depart timely. As relevant here, when voluntary departure is requested at the conclusion of removal proceedings, the departure period may not exceed 60 days. 8 U.S.C. § 1229c(b)(2)."

But then, the statute also has a provision regarding ability to reopen proceedings if one is ordered to leave. Here is a summary of that part of the statute:

"An alien is permitted to file one motion to reopen, § 1229a(c)(7)(A), asking the BIA to change its decision because of newly discovered evidence or changed circumstances. The motion generally must be filed within 90 days of a final administrative removal order, § 1229a(c)(7)(C)(1). Although neither the text of § 1229c or § 1229a(c)(7) nor the applicable legislative history indicates whether Congress intended for an alien granted voluntary departure to be permitted to pursue a motion to reopen, the statutory text plainly guarantees to each alien the right to file “one motion to reopen proceedings under this section,” § 1229a(c)(7)(A)."

So, there is your conflict. Each alien is allowed one motion to contest his removal, which must be filed within 90 days of a final administrative removal order; but a voluntary departure scheme requires departure within 30 (sometimes 60) days of the same order. If a person wants to reopen the proceeding, does s/he lose the more advantageous voluntary departure benefits?

Exploring the Conflict

Justice Kenedy then played with the tension between two parts of the law for a while:

"Section 1229c(b)(2) unambiguously states that the voluntary departure period “shall not be valid” for more than “60 days,” but says nothing about the motion to reopen; and nothing in the statutes or past usage indicates that voluntary departure or motions to reopen cannot coexist. In reading a statute, the Court must not “look merely to a particular clause,” but consider “in connection with it the whole statute.” Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 41 L.Ed.2d 374. Reading the Act as a whole, and considering the statutory scheme governing voluntary departure alongside § 1229a(c)(7)(A)'s right to pursue “one motion to reopen,” the Government's position that an alien who has agreed to voluntarily depart is not entitled to pursue a motion to reopen is unsustainable. It would render the statutory reopening right a nullity in most voluntary departure cases since it is foreseeable, and quite likely, that the voluntary departure time will expire long before the BIA decides a timely-filed motion to reopen. Absent tolling or some other remedial action by this Court, then, the alien who is granted voluntary departure but whose circumstances have changed in a manner cognizable by a motion to reopen is between Scylla and Charybdis: The alien either may leave the United States in accordance with the voluntary departure order, with the effect that the motion to reopen is deemed withdrawn, or may stay in the United States to pursue the case's reopening, risking expiration of the departure period and ineligibility for adjustment of status, the underlying relief sought. Because a motion to reopen is meant to ensure a proper and lawful disposition, this Court is reluctant to assume that the voluntary departure statute is designed to make reopening unavailable for the distinct class of deportable aliens most favored by the same law, when the statute's plain text reveals no such limitation."

It seems that the convincing factor for the majority (and Justice Kennedy as he writes) was that the inconsistency within the statute ought not to work against the petitioner. In other words, why should the deportee have to bear the burden of Congressional unclarity?

So, how does the majority "solve" this one? It is almost as if Kennedy tries to suggest a balancing test, where the alien's right to pursue reopening is balanced with the Government's interest in the quid pro quo feature of voluntary departure. He says:

"It is thus necessary to read the Act to preserve the alien's right to pursue reopening while respecting the Government's interest in the voluntary departure arrangement's quid pro quo. There is no statutory authority for petitioner's proposal to automatically toll the voluntary departure period during the motion to reopen's pendency. Voluntary departure is an agreed-upon exchange of benefits, much like a settlement agreement. An alien who is permitted to stay past the departure date to wait out the motion to reopen's adjudication cannot then demand the full benefits of voluntary departure, for the Government's benefit-a prompt and costless departure-would be lost. It would also invite abuse by aliens who wish to stay in the country but whose cases are unlikely to be reopened. Absent a valid regulation otherwise, the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw from the voluntary departure agreement. The Department of Justice, which has authority to adopt the relevant regulations, has made a preliminary determination that the Act permits an alien to withdraw a voluntary departure application before expiration of the departure period. Although not binding in the present case, this proposed interpretation “warrants respectful consideration.” Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U.S. 473, 497, 122 S.Ct. 962, 151 L.Ed.2d 935. To safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before the departure period expires, without regard to the motion to reopen's underlying merits. The alien has the option either to abide by the voluntary departure's terms, and receive its agreed-upon benefits; or, alternatively, to forgo those benefits and remain in the country to pursue an administrative motion. An alien selecting the latter option gives up the possibility of readmission and becomes subject to the IJ's alternative order of removal. The alien may be removed by the DHS within 90 days, even if the motion to reopen has yet to be adjudicated. But the alien may request a stay of the removal order, and, though the BIA has discretion to deny a motion for a stay based on the merits of the motion to reopen, it may constitute an abuse of discretion for the BIA to deny a motion for stay where the motion states nonfrivolous grounds for reopening. Though this interpretation still confronts the alien with a hard choice, it avoids both the quixotic results of the Government's proposal and the elimination of benefits to the Government that would follow from petitioner's tolling rule."

Conclusion

So rather than sending the issue back to Congress to rewrite the law, the Court has, as it were, construed it to allow a non-frivolous ground for reopening and no involuntary removal of the alien while the issue is pending but (and this is a big "but"), if the petition is unsuccessful, the alien cannot request another voluntary transfer. He would fall under the less favorable features of the removal part of the statute. This decision called forth the ire of four dissenters, but it tries to avoid shipwreck by steering between the Scylla of removal and Charbydis of voluntary departure.

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