Request for Voluntary Departure Can Be Withdrawn in Limited Cases
Posted Jul 11, 2008
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On June 16, 2008, the U.S. Supreme Court held in Dada v. Mukasey that a foreign national who agrees to voluntarily depart the United States may, in fact, "be permitted an opportunity to withdraw a motion for voluntary departure, provided the request is made before the expiration of the departure period." This clarification of the decision entered by the Supreme Court is for the benefit of MurthyDotCom and MurthyBulletin readers, in response to the many questions on this subject that have come to our firm. There have been concerns as to whether it provides some type of broad new benefit for persons who are out of status. Others who have contacted our firm were confused as to who may be able to benefit. In fact, the decision applies to a small number of individuals in specific circumstances. It is a procedural matter that applies to individuals who are in removal (deportation) proceedings.
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Facts of Dada v. Mukasey
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The Petitioner in this case is a Nigerian citizen married to an American citizen, who filed an I-130 Petition for Alien Relative. (The foreign national is being referred to as the Petitioner, as he petitioned the Supreme Court for review of his case. This should not to be confused with his U.S. citizen spouse, who acted as petitioner in the context of the I-130 filing.) The I-130 petition was denied in 2003 and the Department of Homeland Security (DHS) initiated removal proceedings against the Petitioner. The Immigration Judge (IJ) did not permit the foreign national Petitioner to continue his case to await the outcome of a second I-130 petition filed by the Petition's spouse. The foreign national had overstayed his initial period of entry and did not have the I-130 approval (which was needed in this situation to file the I-485, Application for Adjustment of Status, to request permanent residence through the Immigration Court), the IJ found the Petitioner to be removable from the U.S. However, the IJ granted the Petitioner's request for voluntary departure. Voluntary departure is a form of discretionary relief that permits individuals who have been placed in removal proceedings to leave the U.S. voluntarily, within a specified period. This is in contrast to having an order of removal issued, as the order of removal results in certain statutory penalties, including certain bars on reentry to the United States.
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Two days before the expiration of the voluntary departure period, the Petitioner sought to reopen removal proceedings in light of the new evidence in support of his case. The IJ, and later the Board of Immigration Appeals (BIA), denied his request. The BIA ordered the Petitioner to depart within 30 days or be subject to statutory penalties. This decision was later affirmed by the Court of Appeals for the Fifth Circuit.
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Decision of the Supreme Court
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The Supreme Court decided a single issue of whether a foreign national, "who has requested and been granted voluntary departure [...] must depart within the time prescribed" even if this would result in abandonment of the foreign national's motion to reopen his or her removal proceedings. The Supreme Court rejected the lower court's opinion 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," reasoning that there is no express prohibition in the relevant laws and statutes on continuing one's removal proceedings even when an individual has received a grant of voluntary departure. Therefore, the Supreme Court held that "an alien must be permitted an opportunity to withdraw a request for voluntary departure, provided the request is made before expiration of the departure period."
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Conclusion
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The Supreme Court’s decision gives some foreign nationals who overstay their visas more flexibility to remain in the U.S. legally, to pursue Motions to Reopen their removal proceedings. This gives certain persons in removal proceedings additional opportunities to argue the merits of their cases. However, it does not create a new immigration benefit for those who are unlawfully present or out of status. It should be noted that this decision is limited in its application and anyone who thinks that s/he may benefit from it should seek advice from an experienced, qualified immigration attorney.
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