Dada v. Mukasey: Withdrawal of Voluntary Departure Preserved the Motion-to-Reopen Right

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Dada received voluntary departure, then moved to reopen based on a pending family petition before the departure period expired. The case exposed tension between departure obligations and the statutory reopening right.

Facts and procedural posture

The immigration judge denied cancellation but granted voluntary departure. Dada later filed a timely motion to reopen and asked that departure not defeat the motion.

Issue and competing approaches

Automatic tolling would preserve both remedies, while strict departure would force a choice. The government resisted tolling; Dada argued the statutory motion right required protection.

Reasoning and holding

The Court rejected automatic tolling but held that a noncitizen must be allowed to withdraw voluntary departure before the period expires. That approach preserved the motion-to-reopen right while respecting the statutory departure scheme.

Disposition

The judgment was reversed and remanded.

Limits, subsequent use, and practical implications

Regulations adopted after Dada changed the interaction between voluntary departure and motions. Current rules and the order’s exact terms must be checked; the case is not a license to ignore a departure period.