U.S. Supreme Court rules 5 to 4 that IMMIGRATION AND NATURALIZATION ACT must be construed to allow alien opportunity to withdraw motion for voluntary departure, provided alien makes request before expiration of departure period


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Petitioner Samson Taiwo Dada (Petitioner), native and citizen of Nigeria, came to the U.S. in April 1998 on a temporary nonimmigrant visa. He overstayed it. Petitioner claims that he married an American citizen in 1999. His wife fi led an I-130 Page 89 Petition for Alien Relative on his behalf. She failed to produce the required documentary evidence in support, however, so immigration authorities denied his petition in February 2003.

In 2004, the Department of Homeland Security (DHS) charged Petitioner with being removable under the Immigration and Nationality Act (INA) [66 Stat. 201, as amended, 8 U.S.C. § 1227(a)(1)(B) (2000 ed., Supp. V)] for overstaying his visa. Petitioner's wife then fi led a second I-130 petition. The Immigration Judge (IJ) denied Petitioner's request for a continuance pending adjudication of the newly filed I-130 petition, pointing out that those petitions take an average of about three years to process. The IJ found Petitioner removable but granted his request for voluntary departure under the INA.

The Board of Immigration Appeals (BIA) affirmed on November 4, 2005, without a written opinion. It ordered Petitioner to depart within 30 days or suff er certain statutory penalties. These involved a civil fi ne of not less than $1,000 nor more than $5,000, and ineligibility for relief under the INA for 10 years.

On December 2, 2005, two days before the 30-day period ran out, Petitioner asked to withdraw his request for voluntary departure. At the same time he fi led with the BIA a motion to reopen removal proceedings under the INA. He argued that his motion recited new and material evidence showing a bona fi de marriage and that the IJ should continue his case until the decision on the second I-130 petition.

After the voluntary departure period had ended, the BIA denied the request. It reasoned that the statute bars an alien on the voluntary departure track who fails to leave the U.S. in a timely fashion from receiving adjustment of status. It did not consider Petitioner's request to withdraw his voluntary departure request. The Fifth Circuit affirmed. On a grant of certiorari, a bare majority of the Supreme Court reverses and remands. It rules that the statute must allow an alien a chance to withdraw a motion for voluntary departure, provided he or she makes the request before the departure period has run out.

Resolution of this case turns on the interplay between two aspects of the Illegal Immigration Reform...

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