Dada v. MukaseyDada v. Mukasey
Lead Opinion
We decide in this case whether an alien who has requested and been granted voluntary departure from the United States, a form of discretionary relief that avoids certain statutory penalties, must adhere to that election and depart within the
Without some means, consistent with the Act, to reconcile the two commands — one directing voluntary departure and the other directing termination of the motion to reopen if an alien departs the United States — an alien who seeks reopening has two poor choices: The alien can remain in the United States to ensure the motion to reopen remains pending, while incurring statutory penalties for overstaying the voluntary departure date; or the alien can avoid penalties by prompt departure but abandon the motion to reopen.
The issue is whether Congress intended the statutory right to reopen to be qualified by the voluntary departure process. The alien, who is petitioner here, urges that filing a motion to reopen tolls the voluntary departure period pending the motion’s disposition. We reject this interpretation because it would reconfigure the voluntary departure scheme in a manner inconsistent with the statutory design. We do not have the authority to interpret the statute as petitioner suggests. Still, the conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days remains untenable if these are the only two choices available to the alien. Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires. Petitioner attempted to avail himself of this opportunity below. The Court of Appeals for the Fifth Circuit did not disturb the Board of Immigration Appeals’ (BIA or Board) denial of petitioner’s request to withdraw the voluntary departure election. We now reverse its decision and remand the case.
I
Petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came to the United States in April 1998 on a temporary nonimmigrant visa. He overstayed it. In 1999, petitioner alleges, he married an American citizen. Petitioner’s wife filed an 1-130 Petition for Alien Relative on his behalf. The necessary documentary evidence was not provided, however, and the petition was denied in February 2003.
In 2004, the Department of Homeland Security (DHS) charged petitioner with being removable under § 237(a)(1)(B) of the Immigration and Nationality Act (INA), as redesignated by IIRIRA § 305(a)(2), 110 Stat. 3009-598, and as amended,
Two days before expiration of the 30-day period, on December 2, 2005, petitioner sought to withdraw his request for voluntary departure. At the same time he filed with the BIA a motion to reopen removal proceedings under
The Court of Appeals for the Fifth Circuit affirmed. Dada v. Gonzales,
We granted certiorari, see Dada v. Keisler,
II
Resolution of the questions presented turns on the interaction of two statutory schemes — the statutory right to file a motion to reopen in removal proceedings and the rules governing voluntary departure.
A
Voluntary departure is a discretionary form of relief that allows certain favored aliens — either before the conclusion of removal proceedings or after being found deportable — to leave the country willingly. Between 1927 and 2005, over 42 million aliens were granted voluntary departure; almost 13 million of those departures occurred between 1996 and 2005 alone. See Dept. of Homeland Security, Aliens Expelled: Fiscal Years 1892 to 2005, Table 38 (2005), online at http:// Avww.dhs.gov/ximgtn/statistics/publications/YrBk05En.shtm (all Internet materials as visited June 13, 2008, and available in Clerk of Court’s case file).
Voluntary departure was “originally developed by administrative officers, in the absence of a specific mandate in the statute.” 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 74.02[1], p. 74-15 (rev. ed. 2007) (hereinafter Gordon). The practice was first codified in the Alien Registration Act of 1940, § 20, 54 Stat. 671. The Alien Registration Act amended §19 of the Immigration Act of Feb. 5,1917,39 Stat. 889, to provide that an alien “deportable under any law of the United States and who has proved good moral character for the preceding
In 1996, perhaps in response to criticism of immigration officials who had expressed frustration that aliens granted voluntary departure were “permitted to continue their illegal presence in the United States for months, and even years,” Letter from Benjamin G. Habberton, Acting Commissioner on Immigration and Naturalization, to the Executive Director of the President’s Commission on Immigration and Naturalization, reprinted in Hearings before the House Committee on the Judiciary, 82d Cong., 2d Sess., 1954 (Comm. Print 1952), Congress curtailed the period of time during which an alien may remain in the United States pending voluntary departure. The Act, as pertinent to voluntary departures requested at the conclusion of removal proceedings, provides:
“The Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense if, at the conclusion of a proceeding undersection 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that—
“(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 1229(a) of this title;
“(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien’s application for voluntary departure;
“(C) the alien is not deportable undersection 1227(a)(2)(A)(iii) orsection 1227(a)(4) of this title; and
“(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so.”8 U. S. C. § 1229c(b)(l) .
See also
When voluntary departure is requested at the conclusion of removal proceedings, as it was in this case, the statute provides a voluntary departure period of not more than 60 days. See
Voluntary departure, under the current structure, allows the Government and the alien to agree upon a quid pro quo. From the Government’s standpoint, the alien’s agreement to leave voluntarily expedites the departure process and avoids the expense of deportation — including procuring necessary documents and detaining the alien pending deportation. The Government also eliminates some of the costs and burdens associated with litigation over the departure. With the apparent purpose of ensuring that the Government attains the benefits it seeks, the Act imposes limits on the time for voluntary departure, see supra, at 10, and prohibits judicial review of voluntary departure decisions, see
Benefits to the alien from voluntary departure are evident as well. He or she avoids extended detention pending completion of travel arrangements; is allowed to choose when to depart (subject to certain constraints); and can select the country of destination. And, of great importance, by departing voluntarily the alien facilitates the possibility of readmission. The practice was first justified as involving “no warrant of deportation ... so that if [the alien reapplies] for readmission in the proper way he will not be barred.” 2 National Commission on Law Observance and Enforcement: Report on the Enforcement of the Deportation Laws of the United States 57, 102-103 (1931) (Report No. 5). The current statute likewise allows an alien who voluntarily departs to sidestep some of the penalties attendant to deportation. Under the current Act, an alien involuntarily removed from the United States is ineligible for readmission for a period of 5, 10, or 20 years, depending upon the circumstances of removal. See
B
A motion to reopen is a form of procedural relief that “asks the Board to change its decision in light of newly discovered evidence or a change in circumstances since the hearing.” 1 Gordon §3.05[8][c], at 3-76.32. Like voluntary departure, reopening is a judicial creation later codified by federal statute. An early reference to the procedure was in 1916, when a Federal District Court addressed an alien’s motion to reopen her case to provide evidence of her marriage to a United States citizen. See Ex parte Chan Shee,
In 1958, when the BIA was established, the Attorney General promulgated a rule for the reopening and reconsideration of removal proceedings,
Then, in 1990, “fear[ful] that deportable or excludable aliens [were] try[ing] to prolong their stays in the U. S. by filing one type of discretionary relief . . . after another in immigration proceedings,” Justice Dept. Finds Aliens Not Abusing Requests for Relief, 68 Interpreter Releases 907, 908 (July 22, 1991) (No. 27), Congress ordered the Attorney General to “issue regulations with respect to . . . the period of time in which motions to reopen . . . may be offered in deportation proceedings,” including “a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions,” Immigration Act of 1990, § 545(d)(1), 104 Stat. 5066. The Attorney General found little evidence of abuse, concluding that requirements for reopening are a disincentive to bad faith filings. See 68 Interpreter Releases, supra. Because “Congress . . . neither rescinded [n]or amended its mandate to limit the number and time frames of motions,” however, the Department of Justice (DOJ) issued a regulation imposing new time limits and restrictions on filings. The new. regulation allowed the alien to file one motion to reopen within 90 days. Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18900, 18901, 18905 (1996); see
With the 1996 enactment of the Act, Congress adopted the recommendations of the DOJ with respect to numerical and time limits. The current provision governing motions to reopen states:
“(A) In general
“An alien may file one motion to reopen proceedings under this section ....
“(B) Contents
“The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.
“(C) Deadline
“(i) In general
“Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.”8 U. S. C. § 1229a(c)(7) (2000 ed., Supp. V).
To qualify as “new,”
The Act, to be sure, limits in significant ways the availability of the motion to reopen. It must be noted, though, that the Act transforms the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien. Nowhere in
Ill
The Government argues that, by requesting and obtaining permission to voluntarily depart, the alien knowingly surrenders the opportunity to seek reopening. See Brief for Respondent 29-30. Further, according to the Government, petitioner’s proposed rule for tolling the voluntary departure period would undermine the “carefully crafted rules governing voluntary departure,” including the statutory directive that these aliens leave promptly. Id., at 18, 46-47.
To be sure,
In reading a statute we must not “look merely to a particular clause,” but consider “in connection with it the whole statute.” Kokoszka v. Belford,
Reading the Act as a whole, and considering the statutory scheme governing voluntary departure alongside the statutory right granted to the alien by
Since 2000, the BIA has adopted new procedures to reduce its backlog and shorten disposition times. In 2002, the DOJ introduced rules to improve case management, including an increase in the number of cases referred to a single Board member and use of summary disposition procedures for cases without basis in law or fact. See BIA: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54878 (2002), final rule codified at
Absent tolling or some other remedial action by the 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: He or she can leave the United States in accordance with the voluntary departure order; but, pursuant to regulation, the motion to reopen will be deemed withdrawn. See
The purpose of a motion to reopen is to ensure a proper and lawful disposition. We must be reluctant to assume that the voluntary departure statute was designed to remove this important safeguard for the distinct class of deportable aliens most favored by the same law. See
IV
A
It is necessary, then, to read the Act to preserve the alien’s right to pursue reopening while respecting the Government’s interest in the quid pro quo of the voluntary departure arrangement.
Some solutions, though, do not conform to the statutory design. Petitioner, as noted, proposes automatic tolling of the voluntary departure period during the pendency
B
Although a statute or regulation might be adopted to resolve the dilemma in a different manner, as matters now stand the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw the request for voluntary departure before expiration of the departure period.
The DOJ, which has authority to adopt regulations relevant to the issue at hand, has made a preliminary determination that the Act permits an alien to withdraw an application for voluntary departure before expiration of the departure period. According to this proposal, there is nothing in the Act or the implementing regulations that makes the grant of voluntary departure irrevocable. See 72 Fed. Reg. 67679. Accordingly, the DOJ has proposed an amendment to
We hold that, 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 expiration of the departure period, without regard to the underlying merits of the motion to reopen. As a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure; or, alternatively, to forgo
If the alien selects the latter option, he or she gives up the possibility of readmission and becomes subject to the IJ’s alternative order of removal. See
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. Contrary to the Government’s assertion, the rule we adopt does not alter the quid pro quo between the Government and the alien. If withdrawal is requested prior to expiration of the voluntary departure period, the alien has not received benefits without costs; the alien who withdraws from a voluntary departure arrangement is in the same position as an alien who was not granted voluntary departure in the first instance. Allowing aliens to withdraw from their voluntary departure agreements, moreover, establishes a greater probability that their motions to reopen will be considered. At the same time, it gives some incentive to limit filings to non-frivolous motions to reopen; for aliens with changed circumstances of the type envisioned by Congress in drafting
A more expeditious solution to the untenable conflict between the voluntary departure scheme and the motion to reopen might be to permit an alien who has departed the United States to pursue a motion to reopen postdeparture, much as Congress has permitted with respect to judicial review of a removal order. See IIRIRA § 306(b), 110 Stat. 3009-612 (repealing
* * *
Petitioner requested withdrawal of his motion for voluntary departure prior to expiration of his 30-day departure period. The BIA should have granted this request, without regard to the merits of petitioner’s 1-130 petition, and permitted petitioner to pursue his motion to reopen. We find this same mistake implicit in the Court of Appeals’ decision. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Dissenting Opinion
dissenting.
The statutory provision at issue here authorizes the Attorney General to permit an alien who has been found deport-able, if he so requests, to depart the country voluntarily. This enables the alien to avoid detention pending involuntary deportation, to select his own country of destination, to leave according to his own schedule (within the prescribed period), and to avoid restrictions upon readmission that attend involuntary departure. The statute specifies that the permission “shall not be valid for a period exceeding 60 days,”
The Court is resolute in its belief that there is a “conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days.” Ante, at 5. The statute cannot be interpreted to put the alien to the choice of either (1) “remaining] in the United States to ensure [his] motion to reopen remains pending, while incurring statutory penalties for overstaying the voluntary departure date” or (2) “avoiding] penalties by prompt departure but abandoning] the motion to reopen.” Ibid. This, according to the Court, would “render the statutory right to seek reopening a nullity in most cases of voluntary departure.” Ante, at 16. Indeed, the problem is of mythological proportions: “[T]he 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: He or she can leave the United States in accordance with the voluntary departure order; but, pursuant to regulation, the motion to reopen will be deemed withdrawn.” Ante, at 18. So certain is the Court of this premise that it is asserted no less than seven times during the course of today’s opinion. See ante, at 5, 16, 18-22.
The premise is false. It would indeed be extraordinary (though I doubt it would justify a judicial rewrite) for a statute to impose that stark choice upon an alien: depart and lose your right to seek reopening, or stay and incur statutory penalties. But that is not the choice this statute imposes. It offers the alien a deal, if he finds it in his interest and wishes to take it: “Agree to depart voluntarily (within the specified period, of course) and you may lose your right to pursue reopening, but you will not suffer detention, you can
Petitioner requested and accepted the above described deal, but now — to put the point bluntly but entirely accurately — he wants to back out. The case is as simple as that. Two days before the deadline for his promised voluntary departure, he filed a motion asking the Board of Immigration Appeals (BIA) to reopen his removal proceedings and remand his case to the Immigration Judge for adjustment of status based on his wife’s pending visa petition. Administrative Record 3; see id., at 8-21. The motion also asked the BIA to “withdraw his request for voluntary departure” and “instead accep[t] an order of deportation.” Id., at 10. After the voluntary departure period expired, the BIA denied petitioner’s motion to reopen, explaining that under
It seems to me that the BIA proceeded just as it should have, and just as petitioner had every reason to expect. To be sure, the statute provides for the right to file (and presumably to have ruled upon in due course) a petition to reopen. But it does not forbid the relinquishment of that right in exchange for other benefits that the BIA has discretion to provide. Nor does it suggest any weird departure from the ancient rule that an offer (the offer to depart voluntarily in exchange for specified benefits, and with specified consequences for default) cannot be “withdrawn” after it has been accepted and after the quid pro quo promise (to depart) has been made.
The Court’s rejection of this straightforward analysis is inconsistent with its treatment of petitioner’s argument that the statute requires automatic tolling of the voluntary departure period while a motion to reopen is pending. With respect to that argument, the Court says:
“Voluntary departure is an agreed-upon exchange of benefits, much like a settlement agreement. In return for anticipated benefits, including the possibility of readmission, an alien who requests voluntary departure represents that he or she ‘has the means to depart the United States and intends to do so’ promptly. Included among the substantive burdens imposed upon the alien when selecting voluntary departure is the obligation to arrange for departure, and actually depart, within the 60-day period.” Ante, at 19 (citations omitted).
Precisely so. But also among the substantive burdens is the inability to receive certain relief through a motion to reopen once the promised departure date has passed; and perhaps paramount among the substantive
Of course it is not unusual for the Court to blue-pencil a statute in this fashion, directing that one of its provisions, severable from the rest, be disregarded. But that is done when the blue-penciled provision is unconstitutional. It would be unremarkable, if the Court found that the alien had a constitutional right to reopen, and that conditioning permission for voluntary departure upon waiver of that right was an unconstitutional condition, for the Court to order that the alien cannot be held to his commitment. But that is not the ease here. The Court holds that the plain requirement of the statute and of validly adopted regulations cannot be enforced because the statute itself forbids it.
Not so. The Court derives this prohibition from its belief that an alien must, no matter what, be given the full benefit of the right to reopen, even if that means creating an extra-statutory option to renege upon the statutorily contemplated agreement to depart voluntarily. “We must be reluctant to assume,” the Court says, “that the voluntary departure statute was designed to remove this important safeguard [of the motion to reopen],” “particularly so when the plain text of the statute reveals no such limitation.” Ante, at 18. But in fact that safeguard is not sacrosanct. The “plain text of the statute” does cause voluntary departure to remove that safeguard for at least 30 days of its 90-day existence, and permits voluntary departure to remove it almost entirely.
The same analysis makes it true that, even under the Court’s reconstructed statute, a removable alien’s agreement to depart voluntarily may limit, and in some
The Court suggests that the statute compels its conclusion because otherwise “[wjhether an alien’s motion will be adjudicated within the 60-day statutory period in all likelihood will depend on pure happenstance — namely, the backlog of the particular Board member to whom the motion is assigned” and because “arbitrary results are ‘not to be presumed lightly.’” Ante, at 17-18. It is, however, a happenstance that the alien embraces when he makes his commitment to leave, and its effect upon him is therefore not arbitrary. If he wants to be sure to have his motion to reopen considered, he should not enter into the voluntary departure agreement. A reading of the statute that permits that avoidable happenstance seems to me infinitely more plausible than a reading that turns a commitment to depart into an option to depart.
But the most problematic of all the Court’s reasons for allowing petitioner to withdraw his motion to depart voluntarily is its reliance on the Department of Justice’s (DOJ) as-yet-unadopted proposal that is in some respects (though not the crucial one) similar to the Court’s rule. See ante, at 20-21 (citing Proposed Rules, DOJ, Executive Office for Immigration Review, Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a Petition for Review, 72 Fed. Reg. 67674, 67677, and n. 2 (2007)). I shall assume that the proposed rule would be valid, even though it converts the statutory requirement of departure within the prescribed period (on pain of losing the right to seek adjustment of status) into an option to depart.
It must be acknowledged, however, that the Department’s proposed regulation has some bearing upon this case: It demonstrates that the agency is actively considering whether the terms it has prescribed for its discretionary grants of voluntary
* * *
In the final analysis, the Court’s entire approach to interpreting the statutory scheme can be summed up in this sentence from its opinion: “Allowing aliens to withdraw from their voluntary departure agreements . . . establishes a greater probability that their motions to reopen will be considered.” Ante, at 22. That is true enough. What does not appear from the Court’s opinion, however, is the source of the Court’s authority to increase that probability in flat contradiction to the text, of the statute. Just as the Government can (absent some other statutory restriction) relieve criminal defendants of their plea agreements for one reason or another, the Government may well be able to let aliens who have agreed to depart the country voluntarily repudiate their agreements. This Court lacks such authority, and nothing in the statute remotely dictates the result that today’s judgment decrees. I would affirm the judgment of the Court of Appeals.
Notes
An agency need not adopt, as we must, the best reading of a statute, but merely one that is permissible. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
Justice Alito agrees that the statute does not require the BIA to grant petitioner’s motion to withdraw from his agreement to depart voluntarily. He chooses to remand the case because the BIA did not give the reason for its denial of the withdrawal motion, and he believes the reason would be the wrong one if the BIA thought it lacked statutory authority to grant. Post, at 32 (dissenting opinion). But petitioner has challenged neither the adequacy of the BIA’s reason for denying his motion, nor the BIA’s failure to specify a reason. He has argued only that the statute requires that he be allowed to withdraw.
Dissenting Opinion
dissenting.
This case presents two questions: (1) “[wjhether the filing of a motion to reopen removal proceedings automatically tolls the period within which an alien must depart... under an order granting voluntary departure,” Brief for Petitioner i, and (2) “[wjhether an alien who has been granted voluntary departure and has filed a timely motion to reopen should be permitted to withdraw the request for voluntary departure prior to the expiration of the departure period,”
As to the second question, the Court’s reasoning escapes me. The Court holds as follows: “Absent a valid regulation resolving the dilemma in a different way,” “the appropriate way to reconcile the” relevant provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 “is to allow an alien to withdraw the request for voluntary departure before expiration of the departure period.” Ante, at 5, 20 (emphasis added). Thus, the Court apparently does not hold that the statute compels the Government to permit an alien to withdraw a request for voluntary departure, only that the statute permits that approach, a proposition with which I agree.
Since the statute does not decide the question whether an alien should be permitted to withdraw a voluntary departure request, the authority to make that policy choice rests with the agency. See, e. g., Smiley v. Citibank (South Dakota), N. A.,
Neither the BIA nor the Fifth Circuit addressed petitioner’s motion to withdraw, see ante, at 7, and therefore the ground for the Board’s decision is unclear. I would affirm if the BIA either chose as a general matter not to permit the withdrawal of requests for voluntary departure or decided that permitting withdrawal was not appropriate under the facts of this case. However, if the BIA rejected the withdrawal request on the ground that it lacked the statutory authority to permit it, the Board erred. Because the ground for the BIA’s decision is uncertain, I would vacate and remand.