DADA v. MUKASEY, ATTORNEY GENERAL
No. 06-1181
SUPREME COURT OF THE UNITED STATES
Argued January 7, 2008—Decided June 16, 2008
554 U.S. 1
Christopher J. Meade argued the cause for petitioner. With him on the briefs were Seth P. Waxman and Raed Gonzalez.
Deputy Solicitor General Kneedler argued the cause for respondent. With him on the brief were former Solicitor General Clement, Acting Assistant Attorney General Buchholtz, Deputy Assistant Attorney General Dupree, Toby J. Heytens, Donald E. Keener, and Quynh Bain.*
JUSTICE KENNEDY delivered the opinion of the Court.
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 time prescribed, even if doing so causes the alien to forgo a ruling on a pending, unresolved motion to reopen the removal proceedings. The case turns upon the interaction of relevant provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546 (IIRIRA or Act). The Act provides that every alien ordered removed from the United States has a right to file
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
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 I-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
On February 8, 2006, more than two months after the voluntary departure period expired, the BIA denied the motion to reopen on the ground that petitioner had overstayed his voluntary departure period. Under § 240B(d) of the INA,
The Court of Appeals for the Fifth Circuit affirmed. Dada v. Gonzales, 207 Fed. Appx. 425 (2006) (per curiam). Relying on its decision in Banda-Ortiz v. Gonzales, 445 F. 3d 387 (2006), the court held that the BIA‘s reading of the applicable statutes as rendering petitioner ineligible for relief was reasonable. The Fifth Circuit joined the First and Fourth Circuits in concluding that there is no automatic tolling of the voluntary departure period. See Chedad v. Gonzales, 497 F. 3d 57 (CA1 2007); Dekoladenu v. Gonzales, 459 F. 3d 500 (CA4 2006). Four other Courts of Appeals have reached the opposite conclusion. See, e. g., Kanivets v. Gonzales, 424 F. 3d 330 (CA3 2005); Sidikhouya v. Gonzales, 407 F. 3d 950 (CA8 2005); Azarte v. Ashcroft, 394 F. 3d 1278 (CA9 2005); Ugokwe v. United States Atty. Gen., 453 F. 3d 1325 (CA11 2006).
We granted certiorari, see Dada v. Keisler, 551 U. S. 1188 (2007), to resolve the disagreement among the Courts of Appeals. After oral argument we ordered supplemental briefing, see 552 U. S. 1138 (2008), to address whether an alien may withdraw his request for voluntary departure be-
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://www.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 five years” may be permitted by the Attorney General to “depart the United States to any country of his choice at his own expense, in lieu of deportation.” § 20(c), 54 Stat. 672.
“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 under section 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 under section 1227(a)(2)(A)(iii) or section 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)(1) .
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
The voluntary departure period typically does not begin to run until administrative appeals are concluded. 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
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, 236 F. 579 (ND Cal.); see also Chew Hoy Quong v. White, 244 F. 749, 750 (CA9 1917) (addressing an application to reopen to correct discrepancies in testimony). “The reopening of a case by the immigration authorities for the introduction of further evidence” was treated then, as it is now, as “a matter for the exercise of their discretion“; where the alien was given a “full opportunity to testify and to present all witnesses and documentary evidence at the original hearing,” judicial in-
In 1958, when the BIA was established, the Attorney General promulgated a rule for the reopening and reconsideration of removal proceedings, 8 CFR § 3.2, upon which the current regulatory provision is based. See 23 Fed. Reg. 9115, 9118-9119 (1958), final rule codified at 8 CFR § 3.2 (1959) (“The Board may on its own motion reopen or reconsider any case in which it has rendered a decision” upon a “written motion“); see also BIA: Powers; and Reopening or Reconsideration of Cases, 27 Fed. Reg. 96-97 (1962). Until 1996, there was no time limit for requesting the reopening of a case due to the availability of new evidence.
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 8 CFR § 3.2 (1996).
“(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
III
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, 417 U. S. 642, 650 (1974) (quoting Brown v. Duchesne, 19 How. 183, 194 (1857); internal quotation marks omitted); see also Gozlon-Peretz v. United States, 498 U. S. 395, 407 (1991) (“In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy” (quoting Crandon v. United States, 494 U. S. 152, 158 (1990))); United States v. Heirs of Boisdoré, 8 How. 113, 122 (1850) (“[W]e must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy“).
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 8 CFR § 1003.1 et seq. (2006); see also § 1003.1(e)(4) (summary affirmance procedures). Nevertheless, on September 30, 2005, there were 33,063 cases pending before the BIA, 18% of which were more than a year old. See FY 2006 Statistical Year Book, supra, at U1. On September 30, 2006, approximately 20% of the cases pending had been filed during fiscal year 2005. See ibid. Whether 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. Cf. United States v. Wilson, 503 U. S. 329, 334 (1992) (arbitrary results are “not to be presumed lightly“).
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 of the motion to reopen. We do not find statutory authority for this result. 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.
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 8 CFR § 1240.26 that, prospectively, would “provide for the automatic termination of a grant of voluntary departure upon the timely filing of a motion to reopen or reconsider, as long as the motion is filed prior to the expiration of the voluntary departure period.” 72 Fed. Reg. 67679, Part IV-D; cf. id., at 67682, Part VI (“The provisions of this proposed rule will be applied prospectively only, that is, only with respect to immigration judge orders issued on or after the effective date of the final rule that grant a period of voluntary departure“). Although not binding in the present case, the DOJ‘s proposed interpretation of the statutory and regulatory scheme as allowing an alien to withdraw from a voluntary departure agreement “warrants respectful consideration.” Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U.S. 473 (2002)
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 those benefits and remain in the United States to pursue an administrative motion.
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
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 I-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 re-
It is so ordered.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
The statutory provision at issue here authorizes the Attorney General to permit an alien who has been found deportable, 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) “remain[ing] in the United States to ensure [his] motion to reopen remains pending, while incurring statutory penalties for overstaying the voluntary departure date” or (2) “avoid[ing] penalties by prompt departure but abandon[ing] 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 depart at your own convenience rather than ours, and to the destination that you rather than we select, and you will not suffer the statutory restrictions upon reentry that accompany involuntary departure. If you accept this deal, how-
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
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 burdens is that the alien is bound to his agreement. The Court is quite right that the Act does not allow us to require that an alien who agrees to depart voluntarily must receive the benefits of his bargain without the costs. But why does it allow us to convert the alien‘s statutorily required promise to depart voluntarily into an “option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure; or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion“? Ante, at 21. And why does it allow us to nullify the provision of
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 case 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.
And since 60 days is merely the maximum period for a voluntary departure, it is theoretically possible for the right to reopen to be limited to one week, or even one day. Given that reality, it is not at all hard to believe that the statute allows nullification of motions to reopen requesting adjustment of status filed within the 60-day departure period and not ruled upon before departure. Indeed, it seems to me much more likely that the statute allows that than that it allows judicial imposition of the unheard-of rule that a promise to depart is not a promise to depart, and judicial nullification of a statutorily prescribed penalty for failure to depart by the gimmick of allowing the request for voluntary departure to be “withdrawn.”
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 instances foreclose, his ability to pursue a motion to reopen at a later date. Even if the alien who has agreed to voluntary departure is permitted to renege within the specified departure period, that period can be no longer than 60 days after entry of the order of removal—meaning that he has been deprived of at least 30 days of his right to reopen. Thus, the Court has not “reconciled” statutory provisions; it has simply rewritten two of them to satisfy its notion of sound policy—the requirement of a commitment to depart and the prescription that a failure to do so prevents adjustment of status.
The Court suggests that the statute compels its conclusion because otherwise “[w]hether 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
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.1 According to the Court, the proposed regulation “‘warrants respectful consideration.‘” Ante, at 20. What this evidently means is respectful adoption of that portion of the proposed regulation with which the Court agrees, and sub silentio rejection of that portion it disfavors, namely: “The provisions of this proposed rule will be applied . . . only with respect to immigration judge orders issued on or after the effective date of the final rule that grant a period of voluntary departure,” 72 Fed. Reg. 67682. See Supp. Brief for Respondent 8-9 (observing that the rule “will not apply to petitioner‘s case“).
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 departure are too harsh and should be revised for the future, perhaps along the very lines that the Justices in today‘s majority would choose if they were the Attorney General. It shows, in other words, that today‘s interpretive gymnastics may have been performed, not for the enjoyment of innumerable aliens in the future, but for Mr. Dada alone.
* * *
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.2
This case presents two questions: (1) “[w]hether 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) “[w]hether 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,” 552 U. S. 1138 (2008). I agree with the Court that the answer to the first question is no. Ante, at 5.
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., 517 U. S. 735, 740-741 (1996) (noting the “presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency“);
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.