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US Supreme
Court grants major relief to immigrants
Historic judgment to allow reopening of cases granted voluntary
departure
Jagmohan Singh
 In
a landmark 5-4 judgment which can have major ramifications for Sikhs
and other immigrant communities in the United States, the US Supreme
Court has upheld the right of all immigrants who have been granted
voluntary departure to appeal for reopening of their cases.
According to the historic verdict of the US Supreme Court, any
person who has been granted voluntary departure order can seek to
get this order revoked before the period of voluntary departure ends
by filing a motion to open petition in the said court.
Simultaneously, he can apply for stoppage of deportation, and the
court cannot compulsorily order the deportation of the immigrant.
The said court would be bound to hear proceedings of the motion to
open case and only if the case is without merit that the impugned
person can be asked to leave the country for which another period of
90 days would be given to him/her.
As there is huge
backlog of pending immigration cases, the case of Samson Taiwo Dada
versus Michael B. Mukasey-the US attorney General, was being
followed with keen interest by all immigrant communities. The
court’s decision came in a writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit.
Outlining the crux of the issue, Justice Kennedy, who wrote the
judgement for the majority judges said that, "We decide in this case
whether an alien who has requested and been granted voluntary
departure from the United States, a form of discretionary relief
that avoids certain statutory penalties, must adhere to that
election and depart within the time prescribed, even if doing so
causes the alien to forgo a ruling on a pending, unresolved motion
to reopen the removal proceedings.”
He
further says, “The issue is whether Congress intended the statutory
right to reopen to be qualified by the voluntary departure process.
The alien, who is petitioner here, urges that filing a motion to
reopen tolls the voluntary departure period pending the motion’s
disposition. We reject this interpretation because it would
reconfigure the voluntary departure scheme in a manner inconsistent
with the statutory design. We do not have the authority to interpret
the statute as petitioner suggests. Still, the conflict between the
right to file a motion to reopen and the provision requiring
voluntary departure no later than 60 days remains untenable if these
are the only two choices available to the alien.”
Elaborating further the judgement says, “Absent a valid regulation
resolving the dilemma in a different way, we conclude the alien must
be permitted an opportunity to withdraw the motion for voluntary
departure, provided the request is made before the departure period
expires. Petitioner attempted to avail himself of this opportunity
below. The Court of Appeals for the Fifth Circuit did not disturb
the Board of Immigration Appeals’ (BIA or Board) denial of
petitioner’s request to withdraw the voluntary departure election.
We now reverse its decision and remand the case.”
The
petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came
to the United States in April 1998 on a temporary nonimmigrant visa.
He overstayed it. In 1999, petitioner alleges, he married an
American citizen. Petitioner’s wife filed an I–130 Petition for
Alien Relative on his behalf. The necessary documentary evidence was
not provided, however, and the petition was denied in February
2003. After a long drawn-out battle over a period of ten years,
running from one court to another, including the Board of
Immigration, all courts had upheld the order of deportation to
Nigeria.
Immigration lawyer and attorney at law, Jaspreet Singh, while
referring to the judgment pointed out the significance of the
judgment to thousands of pending immigration cases and said that
“this case would be a milestone in the annals of immigration laws in
this country”. The Sikh community feels grateful to people like him
who help to decode and deconstruct court judgments in order to make
them intelligible to immigrants.
However another expert, James M. Tyler, writing on the Philadelphia
Immigration Lawyer blog says, “However,
it’s not a clear win for aliens because the Supreme Court
specifically did NOT hold that the voluntary departure period was
stayed while a motion to re-open is pending. So the dilemma really
is still there—if one wants to file a motion to re-open without
suffering the consequences of failing to voluntarily depart, one
must give up voluntary departure and its benefits. If the motion to
re-open is denied, the individual has lost out on voluntary
departure and is subject to a removal order and its 10 year bar on
re-entry.
The decision
may actually have limited affect because the USCIS has proposed a
regulation by which the filing of a motion to re-open would
automatically terminate an order of voluntary departure, something
the Court said “warrants respectful consideration.”
Significantly, the American Civil Liberties Union, which was an
amicus curie petitioner in the case is byoued by the judgment and
sees it as a historic development for immigrants.
For
a full copy of the judgment, log on to:
http://www.law.com/jsp/scm/LawDecisionSCM.jsp?id=1202422306842
For full details of the case, log on to:
http://www.scotuswiki.com/index.php?title=Dada_v._Mukasey
2
July, 2008
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