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Court Holds Noncitizens Granted Voluntary Departure may Seek Reopening

Dada v. Mukasey, 554 U.S. 1 (2008)

A divided Supreme Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period in order “to safeguard the right to pursue a motion to reopen.” The Court, however, rejected the argument that the voluntary departure period automatically tolls when a motion to reopen is filed.

This case resolves a circuit split. Four courts had found that the filing of a motion to reopen automatically tolls the voluntary departure period. See Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005); Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325 (11th Cir. 2006). Three courts concluded otherwise. See Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006), petition for cert. pending, No. 06-1252 (filed Mar. 22, 2007); Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), cert. denied, 127 S. Ct. 1874 (2007); Chedad v. Gonzales, 497 F.3d 57 (1st Cir. 2007) (pet. for reh'g filed Oct. 15, 2007).

Read a summary of the decision.

AILF and AILA appeared as amicus curiae in this case. AILF issued a Q&A offering analysis and initial steps to consider. Also, read AILF’s press release.