Federal Judiciary

Parties split over withdrawal approach in Dada

By Akin Gump Supreme Court Practice Group

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?

Full post as published by SCOTUSBLOG on January 25, 2008 (boomark / email).