Dada v. Mukasey: Voluntary Departure and the Motion-to-Reopen Right

The Supreme Court's 2008 decision in Dada v. Mukasey resolved a genuine dilemma built into immigration law: a noncitizen who accepts voluntary departure and then seeks to reopen removal proceedings faces a trap in which leaving the country may moot the motion and staying beyond the departure deadline triggers serious penalties. The Court's answer was to permit the noncitizen to withdraw the voluntary-departure request before the period expires, thereby preserving the statutory right to file one motion to reopen.

Background and Procedural Posture

Samson Dada, a Nigerian national, entered the United States on a nonimmigrant visa and overstayed. After removal proceedings were initiated, an immigration judge denied his application for cancellation of removal and granted him sixty days of voluntary departure. Before that period expired, Dada filed a motion to reopen based on a pending I-130 family-based petition filed by his United States citizen wife.

The motion created a dilemma. If Dada departed voluntarily, he risked abandoning the motion to reopen. If he remained beyond the departure deadline, he faced a ten-year bar on admission and other statutory penalties. The Board of Immigration Appeals denied the motion to reopen, and the Seventh Circuit affirmed. The Supreme Court granted certiorari. Dada v. Mukasey, 554 U.S. 1, 5–10 (2008).

The Statutory Framework

The Immigration and Nationality Act grants noncitizens the right to file one motion to reopen removal proceedings. 8 U.S.C. § 1229a(c)(7). Separately, the Act permits an immigration judge to grant voluntary departure, allowing the noncitizen to leave at his own expense within a specified period rather than be formally removed. 8 U.S.C. § 1229c. Failure to depart within the period triggers automatic penalties, including a bar on certain forms of relief.

The tension between these provisions is structural. A noncitizen who files a motion to reopen during the voluntary-departure period may find that the motion is pending when the deadline arrives, forcing a choice between departing and potentially mooting the motion or staying and incurring penalties.

The Court's Holding

Writing for a five-Justice majority, Justice Kennedy held that a noncitizen must be permitted to withdraw a voluntary-departure request before the departure period expires. Dada, 554 U.S. at 19–22. This approach reconciles the two statutory provisions: the noncitizen who withdraws the departure request is no longer subject to the departure deadline and its penalties, and the motion to reopen can proceed on its merits.

The Court expressly rejected the government's argument that the voluntary-departure period should be automatically tolled while a motion to reopen is pending. Automatic tolling, the Court reasoned, would undermine the departure bargain that Congress created—a bargain in which the government agrees to allow voluntary departure in exchange for the noncitizen's commitment to leave within the specified time. Id. at 17–19. Permitting withdrawal, by contrast, allows the noncitizen to make a deliberate choice: accept the consequences of remaining in removal status and pursue reopening, or honor the departure commitment and forgo the motion.

What the Decision Does Not Decide

The Court's holding is procedural and narrow. The judgment reversed and remanded the Seventh Circuit's decision; it did not grant reopening, did not evaluate the merits of Dada's family-based petition, and did not excuse any failure to act within the voluntary-departure period. The Court also did not address what happens when a noncitizen neither departs nor withdraws the departure request before the deadline passes.

Regulatory Developments and Current Practice

Regulations adopted after Dada have further shaped the interaction between voluntary departure and motions to reopen. Practitioners must consult the current version of 8 C.F.R. § 1240.26, which addresses the consequences of filing motions or petitions during the voluntary-departure period and has been amended to reflect post-Dada agency rulemaking. The precise terms of the immigration judge's order, the exact departure deadline, and the filing dates of any motion or petition are all material to the analysis.

The historical holding in Dada should not be read as permission to ignore a departure deadline. The decision creates a mechanism—voluntary withdrawal of the departure request—that a noncitizen must affirmatively invoke before the period expires. Waiting until after the deadline has passed does not preserve the option.

Practical Significance

For noncitizens and their counsel, Dada establishes that the voluntary-departure bargain is not irrevocable. A noncitizen who receives new grounds for reopening—a changed country condition, a newly filed family petition, or other qualifying circumstances—during the departure period has a procedural path: withdraw the departure request before the deadline and pursue the motion to reopen in removal status. That path carries its own consequences, including the loss of the benefits associated with voluntary departure, and the decision to withdraw should be made with full awareness of those trade-offs.

Counsel should also verify whether any post-Dada regulatory change affects the specific procedural posture of the case, because agency rules in this area have continued to evolve.

Primary Authority

• Dada v. Mukasey, 554 U.S. 1 (2008)

This analysis is general information, not legal advice. Mission X Trial Lawyers evaluates matters in this practice area based on the governing law and the particular record.

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