IMMIGRATION

SUPREME COURT RULING ON MOTION TO REOPEN IN REMOVAL CASES

	Gail S. Seeram

By GAIL S. SEERAM

On June 16, 2008, the U.S. Supreme Court issued a decision in Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16, 2008), that addresses the interplay between the voluntary departure provision and a motion to reopen provision.

By way of background, under the immigration statutes, a person is permitted to file a motion to reopen within 90 days of the final administrative order of removal. However, individuals with voluntary departure usually must depart within 30 or 60 days or risk being ineligible for suspension of deportation, adjustment of status, change of status, registry, and voluntary departure for ten years. Additionally, after a person departs, the government deems a motion to reopen withdrawn. Because the government generally does not adjudicate motions to reopen before the voluntary departure period expires, individuals granted voluntary departure who then become eligible for relief following the final order may have no means to pursue this relief.

Therefore, the U.S. Supreme Court ruled that individuals must be permitted to withdraw their voluntary departure request before the period expires. The Supreme Court, however, disagreed with several circuit courts that previously had held that the voluntary departure period is tolled (stops running) during the pendency of a motion to reopen.

Keep in mind, the U.S. Supreme Court's decision only affects individuals who filed or plan to file their motions to reopen before their voluntary departure period expires. The decision allows individuals to unilaterally withdraw their requests for voluntary departure. Therefore, individuals who wish to file a motion to reopen can withdraw their voluntary departure and avoid the consequences of overstaying the voluntary departure period if the motion to reopen is not adjudicated before the expiration of the period. It is unclear from the decision whether the filing of a motion to reopen will be construed as a request to withdraw the voluntary departure. However, the Court noted that the government has issued a proposed regulation that construes the filing of a motion to reopen during the voluntary departure period as an automatic termination of the voluntary departure grant, and that the proposed regulation "warrants respectful consideration.'"

Nonetheless, until it is clear how the government and the courts are going to interpret this decision, individuals may consider explicitly requesting withdrawal of voluntary departure when they file a motion to reopen prior to the expiration of the departure period.

In addition, keep in mind, without voluntary departure, a person is subject to an order of removal. Therefore, individuals who withdraw their voluntary departure may want to file a motion to stay their removal during the pendency of the motion to reopen.

Those individuals whose voluntary departure period has not expired may want to consider requesting withdrawal of their voluntary departure request. If the voluntary departure period has expired, individuals may argue that the initial motion to reopen should be construed as a request to withdraw the voluntary departure request.

Gail S. Seeram, an immigration attorney, handles cases involving family petitions, business/investors visas, citizenship, deportation, asylum, work authorization, and extension of status. Call her office toll free at 1-877-GAIL-LAW (1-877-424-5529), send an email at [email protected] or visit her Web site at www.go2lawyer.com.