(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DADA v. MUKASEY, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 06–1181. Argued January 7, 2008—Decided June 16, 2008
Petitioner, a native and citizen of Nigeria, alleges that he married an
American citizen in 1999. His wife filed an I–130 Petition for Alien
Relative on his behalf that was denied in 2003. The Department of
Homeland Security (DHS) charged Dada with being removable under
the Immigration and Nationality Act for overstaying his temporary
nonimmigrant visa. The Immigration Judge (IJ) denied the request
for a continuance pending adjudication of a second I–130 petition,
found Dada eligible for removal, and granted his request for volun-
tary departure under 8 U. S. C. §1229c(b). The Board of Immigration
Appeals (BIA) affirmed and ordered Dada to depart within 30 days or
suffer statutory penalties. Two days before the end of the 30-day pe-
riod, Dada sought to withdraw his voluntary departure request and
filed a motion to reopen removal proceedings under 8 U. S. C.
§1229a(c)(7), contending that new and material evidence demon-
strated a bona fide marriage and that his case should be continued
until resolution of the second I–130 petition. After the voluntary de-
parture period had expired, the BIA denied the request, reasoning
that an alien who has been granted voluntary departure but does not
depart in a timely fashion is statutorily barred from receiving ad-
justment of status. It did not consider Dada’s request to withdraw
his voluntary departure request. The Fifth Circuit affirmed.
Held: An alien must be permitted an opportunity to withdraw a motion
for voluntary departure, provided the request is made before expira-
tion of the departure period. Pp. 5–20.
(a) Resolution of this case turns on the interaction of two aspects of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996—the alien’s right to file a motion to reopen in removal proceed-
ings and the rules governing voluntary departure. Pp. 5–12.
2 DADA v. MUKASEY
Syllabus
(1) Voluntary departure is discretionary relief that allows certain
favored aliens to leave the country willingly. It benefits the Govern-
ment by, e.g., expediting the departure process and avoiding deporta-
tion expenses, and benefits the alien by, e.g., facilitating readmission.
To receive these benefits, the alien must depart timely. As relevant
here, when voluntary departure is requested at the conclusion of re-
moval proceedings, the departure period may not exceed 60 days. 8
U. S. C. §1229c(b)(2). Pp. 5–9.
(2) An alien is permitted to file one motion to reopen,
§1229a(c)(7)(A), asking the BIA to change its decision because of
newly discovered evidence or changed circumstances. The motion
generally must be filed within 90 days of a final administrative re-
moval order, §1229a(c)(7)(C)(1). Although neither the text of §1229c
or §1229a(c)(7) nor the applicable legislative history indicates
whether Congress intended for an alien granted voluntary departure
to be permitted to pursue a motion to reopen, the statutory text
plainly guarantees to each alien the right to file “one motion to re-
open proceedings under this section,” §1229a(c)(7)(A). Pp. 9–12.
(b) Section 1229c(b)(2) unambiguously states that the voluntary
departure period “shall not be valid” for more than “60 days,” but
says nothing about the motion to reopen; and nothing in the statutes
or past usage indicates that voluntary departure or motions to reopen
cannot coexist. In reading a statute, the Court must not “look merely
to a particular clause,” but consider “in connection with it the whole
statute.” Kokoszka v. Belford, 417 U. S. 642, 650. Reading the Act as
a whole, and considering the statutory scheme governing voluntary
departure alongside §1229a(c)(7)(A)’s right to pursue “one motion to
reopen,” the Government’s position that an alien who has agreed to
voluntarily depart is not entitled to pursue a motion to reopen is un-
sustainable. It would render the statutory reopening right a nullity
in most voluntary departure cases since it is foreseeable, and quite
likely, that the voluntary departure time will expire long before the
BIA decides a timely-filed motion to reopen. Absent tolling or some
other remedial action by this Court, then, the alien who is granted
voluntary departure but whose circumstances have changed in a
manner cognizable by a motion to reopen is between Scylla and
Charybdis: The alien either may leave the United States in accor-
dance with the voluntary departure order, with the effect that the
motion to reopen is deemed withdrawn, or may stay in the United
States to pursue the case’s reopening, risking expiration of the depar-
ture period and ineligibility for adjustment of status, the underlying
relief sought. Because a motion to reopen is meant to ensure a
proper and lawful disposition, this Court is reluctant to assume that
the voluntary departure statute is designed to make reopening un-
Cite as: 554 U. S. ____ (2008) 3
Syllabus
available for the distinct class of deportable aliens most favored by
the same law, when the statute’s plain text reveals no such limita-
tion. Pp. 12–16.
(c) It is thus necessary to read the Act to preserve the alien’s right
to pursue reopening while respecting the Government’s interest in
the voluntary departure arrangement’s quid pro quo. There is no
statutory authority for petitioner’s proposal to automatically toll the
voluntary departure period during the motion to reopen’s pendency.
Voluntary departure is an agreed-upon exchange of benefits, much
like a settlement agreement. An alien who is permitted to stay past
the departure date to wait out the motion to reopen’s adjudication
cannot then demand the full benefits of voluntary departure, for the
Government’s benefit—a prompt and costless departure—would be
lost. It would also invite abuse by aliens who wish to stay in the
country but whose cases are unlikely to be reopened. Absent a valid
regulation otherwise, the appropriate way to reconcile the voluntary
departure and motion to reopen provisions is to allow an alien to
withdraw from the voluntary departure agreement. The Department
of Justice, which has authority to adopt the relevant regulations, has
made a preliminary determination that the Act permits an alien to
withdraw a voluntary departure application before expiration of the
departure period. Although not binding in the present case, this pro-
posed interpretation “warrants respectful consideration.” Wisconsin
Dept. of Health and Family Servs. v. Blumer, 534 U. S. 473, 497. To
safeguard the right to pursue a motion to reopen for voluntary depar-
ture recipients, the alien must be permitted to withdraw, unilater-
ally, a voluntary departure request before the departure period ex-
pires, without regard to the motion to reopen’s underlying merits.
The alien has the option either to abide by the voluntary departure’s
terms, and receive its agreed-upon benefits; or, alternatively, to forgo
those benefits and remain in the country to pursue an administrative
motion. An alien selecting the latter option gives up the possibility of
readmission and becomes subject to the IJ’s alternative order of re-
moval. The alien may be removed by the DHS within 90 days, even if
the motion to reopen has yet to be adjudicated. But the alien may
request a stay of the removal order, and, though the BIA has discre-
tion to deny a motion for a stay based on the merits of the motion to
reopen, it may constitute an abuse of discretion for the BIA to deny a
motion for stay where the motion states nonfrivolous grounds for re-
opening. Though this interpretation still confronts the alien with a
hard choice, it avoids both the quixotic results of the Government’s
proposal and the elimination of benefits to the Government that
would follow from petitioner’s tolling rule. Pp. 16–20.
207 Fed. Appx. 425, reversed and remanded.
4 DADA v. MUKASEY
Syllabus
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissent-
ing opinion, in which ROBERTS, C. J., and THOMAS, J., joined. ALITO, J.,
filed a dissenting opinion.
Cite as: 554 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1181
_________________
SAMSON TAIWO DADA, PETITIONER v. MICHAEL B.
MUKASEY, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 16, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
We decide in this case whether an alien who has re-
quested 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. The case turns
upon the interaction of relevant provisions of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996, 110 Stat. 3009–546 (IIRIRA or Act). The Act pro-
vides that every alien ordered removed from the United
States has a right to file one motion to reopen his or her
removal proceedings. See 8 U. S. C. §1229a(c)(7) (2000
ed., Supp. V). The statute also provides, however, that if
the alien’s request for voluntary departure is granted after
he or she is found removable, the alien is required to
depart within the period prescribed by immigration offi-
cials, which cannot exceed 60 days. See §1229c(b)(2) (2000
ed.). Failure to depart within the prescribed period ren-
ders the alien ineligible for certain forms of relief, includ-
2 DADA v. MUKASEY
Opinion of the Court
ing adjustment of status, for a period of 10 years.
§1229c(d)(1) (2000 ed., Supp. V). Pursuant to regulation,
however, departure has the effect of withdrawing the
motion to reopen. See 8 CFR §1003.2(d) (2007).
Without some means, consistent with the Act, to recon-
cile the two commands—one directing voluntary departure
and the other directing termination of the motion to re-
open if an alien departs the United States—an alien who
seeks reopening has two poor choices: The alien can re-
main in the United States to ensure the motion to reopen
remains pending, while incurring statutory penalties for
overstaying the voluntary departure date; or the alien can
avoid penalties by prompt departure but abandon the
motion to reopen.
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 inter-
pret the statute as petitioner suggests. Still, the conflict
between the right to file a motion to reopen and the provi-
sion requiring voluntary departure no later than 60 days
remains untenable if these are the only two choices avail-
able to the alien. 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.
Cite as: 554 U. S. ____ (2008) 3
Opinion of the Court
I
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. Peti-
tioner’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 Febru-
ary 2003.
In 2004, the Department of Homeland Security (DHS)
charged petitioner with being removable under
§237(a)(1)(B) of 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 filed 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 and
noted that those petitions take an average of about three
years to process. The IJ found petitioner to be removable
but granted the request for voluntary departure under
§1229c(b) (2000 ed.). The BIA affirmed on November 4,
2005, without a written opinion. It ordered petitioner to
depart within 30 days or suffer statutory penalties, includ-
ing a civil fine of not less than $1,000 and not more than
$5,000 and ineligibility for relief under §§240A, 240B, 245,
248, and 249 of the INA for a period of 10 years. See App.
to Pet. for Cert. 5–6.
Two days before expiration of the 30-day period, on
December 2, 2005, petitioner sought to withdraw his
request for voluntary departure. At the same time he filed
with the BIA a motion to reopen removal proceedings
under 8 U. S. C. §1229a(c)(7) (2000 ed., Supp. V). He
contended that his motion recited new and material evi-
dence demonstrating a bona fide marriage and that his
case should be continued until the second I–130 petition
was resolved.
4 DADA v. MUKASEY
Opinion of the Court
On February 8, 2006, more than two months after the
voluntary departure period expired, the BIA denied the
motion to reopen on the ground that petitioner had over-
stayed his voluntary departure period. Under §240B(d) of
the INA, 8 U. S. C. §1229c(d) (2000 ed. and Supp. V), the
BIA reasoned, an alien who has been granted voluntary
departure but fails to depart in a timely fashion is statuto-
rily barred from applying for and receiving certain forms
of discretionary relief, including adjustment of status. See
App. to Pet. for Cert. 3–4. The BIA did not address peti-
tioner’s motion to withdraw his request for voluntary
departure.
The Court of Appeals for the Fifth Circuit affirmed.
Dada v. Gonzales, 207 Fed. Appx. 425 (2006) (per curiam).
Relying on its decision in Banda-Ortiz v. Gonzales, 445
F. 3d 387 (2006), the court held that the BIA’s reading of
the applicable statutes as rendering petitioner ineligible
for relief was reasonable. The Fifth Circuit joined the
First and Fourth Circuits in concluding that there is no
automatic tolling of the voluntary departure period. See
Chedad v. Gonzales, 497 F. 3d 57 (CA1 2007); Dekoladenu
v. Gonzales, 459 F. 3d 500 (CA4 2006). Four other Courts
of Appeals have reached the opposite conclusion. See, e.g.,
Kanivets v. Gonzales, 424 F. 3d 330 (CA3 2005); Sidik
houya v. Gonzales, 407 F. 3d 950 (CA8 2005); Azarte v.
Ashcroft, 394 F. 3d 1278 (CA9 2005); Ugokwe v. United
States Atty. Gen., 453 F. 3d 1325 (CA11 2006).
We granted certiorari, see Dada v. Keisler, 551 U. S. ___
(2007), to resolve the disagreement among the Court of
Appeals. After oral argument we ordered supplemental
briefing, see 552 U. S. ___ (2008), to address whether an
alien may withdraw his request for voluntary departure
before expiration of the departure period. Also after oral
argument, on January 10, 2008, petitioner’s second I–130
application was denied by the IJ on the ground that his
marriage is a sham, contracted solely to obtain immigra-
Cite as: 554 U. S. ____ (2008) 5
Opinion of the Court
tion benefits.
II
Resolution of the questions presented turns on the
interaction of two statutory schemes—the statutory right
to file a motion to reopen in removal proceedings; and the
rules governing voluntary departure.
A
Voluntary departure is a discretionary form of relief
that allows certain favored aliens—either before the con-
clusion of removal proceedings or after being found de-
portable—to leave the country willingly. Between 1927 to
2005, over 42 million aliens were granted voluntary depar-
ture; almost 13 million of those departures occurred be-
tween 1996 and 2005 alone. See Dept. of Homeland Secu-
rity, Aliens Expelled: Fiscal Years 1892 to 2005, Table 38
(2005), online at http://www.dhs.gov/ximgtn/statistics/
publications/YrBk05En.shtm (all Internet materials as
visited June 13, 2008, and available in Clerk of Court’s
case file).
Voluntary departure was “originally developed by ad-
ministrative officers, in the absence of a specific mandate
in the statute.” 6 C. Gordon, S. Mailman, & S. Yale-Loehr,
Immigration Law and Procedure §74.02[1], p. 74–15 (rev.
ed. 2007) (hereinafter Gordon). The practice was first
codified in the Alien Registration Act of 1940, §20, 54 Stat.
671. The Alien Registration Act amended §19 of the Im-
migration Act of Feb. 5, 1917, 39 Stat. 889, to provide that
an alien “deportable under any law of the United States
and who has proved good moral character for the preced-
ing five years” may be permitted by the Attorney General
to “depart the United States to any country of his choice at
his own expense, in lieu of deportation.” §20(c), 54 Stat.
672.
In 1996, perhaps in response to criticism of immigration
6 DADA v. MUKASEY
Opinion of the Court
officials who had expressed frustration that aliens granted
voluntary departure were “permitted to continue their
illegal presence in the United States for months, and even
years,” Letter from Benjamin G. Habberton, Acting Com-
missioner on Immigration and Naturalization, to the
Executive Director of the President’s Commission on
Immigration and Naturalization, reprinted in Hearings
before the House of Representatives Committee on the
Judiciary, 82d Cong., 2d Sess., 1954 (Comm. Print 1952),
Congress curtailed the period of time during which an
alien may remain in the United States pending voluntary
departure. The Act, as pertinent to voluntary departures
requested at the conclusion of removal proceedings,
provides:
“The Attorney General may permit an alien voluntar-
ily to depart the United States at the alien’s own ex-
pense if, at the conclusion of a proceeding under sec-
tion 1229a of this title, the immigration judge enters
an order granting voluntary departure in lieu of re-
moval and finds that—
“(A) the alien has been physically present in the
United States for a period of at least one year im-
mediately preceding the date the notice to appear
was served under section 1229(a) of this title;
“(B) the alien is, and has been, a person of good
moral character for at least 5 years immediately
preceding the alien’s application for voluntary de-
parture;
“(C) the alien is not deportable under section
1227(a)(2)(A)(iii) or section 1227(a)(4) of this title;
and
“(D) the alien has established by clear and convinc-
ing evidence that the alien has the means to depart
the United States and intends to do so.” 8 U. S. C.
§1229c(b)(1).
Cite as: 554 U. S. ____ (2008) 7
Opinion of the Court
See also §1229c(a)(1) (“The Attorney General may permit
an alien voluntarily to depart the United States at the
alien’s own expense under this subsection” in lieu of being
subject to removal proceedings or prior to the completion
of those proceedings; the alien need not meet the require-
ments of §1229c(b)(1) if removability is conceded).
When voluntary departure is requested at the conclu-
sion of removal proceedings, as it was in this case, the
statute provides a voluntary departure period of not more
than 60 days. See §1229c(b)(2). The alien can receive up
to 120 days if he or she concedes removability and re-
quests voluntary departure before or during removal
proceedings. See §1229c(a)(2)(A). Appropriate immigra-
tion authorities may extend the time to depart but only if
the voluntary departure period is less than the statutory
maximum in the first instance. The voluntary departure
period in no event may exceed 60 or 120 days for §1229c(b)
and §1229c(a) departures, respectively. See 8 CFR
§1240.26(f) (2007) (“Authority to extend the time within
which to depart voluntarily specified initially by an immi-
gration judge or the Board is only within the jurisdiction
of the district director, the Deputy Executive Associate
Commissioner for Detention and Removal, or the Director
of the Office of Juvenile Affairs. . . . In no event can the
total period of time, including any extension, exceed 120
days or 60 days as set forth in section 240B of the Act”).
The voluntary departure period typically does not begin
to run until administrative appeals are concluded. See 8
U. S. C. §1101(47)(B) (“The order . . . shall become final
upon the earlier of—(i) a determination by the Board of
Immigration Appeals affirming such order; or (ii) the
expiration of the period in which the alien is permitted to
seek review of such order by the Board of Immigration
Appeals”); §1229c(b)(1) (Attorney General may permit
voluntary departure at conclusion of removal proceedings);
see also 8 CFR §1003.6(a) (2007) (“[T]he decision in any
8 DADA v. MUKASEY
Opinion of the Court
proceeding . . . from which an appeal to the Board may be
taken shall not be executed during the time allowed for
the filing of an appeal . . . ”). In addition some Federal
Courts of Appeals have found that they may stay volun-
tary departure pending consideration of a petition for
review on the merits. See, e.g., Thapa v. Gonzales, 460
F. 3d 323, 329–332 (CA2 2006); Obale v. Attorney General
of United States, 453 F. 3d 151, 155–157 (CA3 2006). But
see Ngarurih v. Ashcroft, 371 F. 3d 182, 194 (CA4 2004).
This issue is not presented here, however, and we leave its
resolution for another day.
Voluntary departure, under the current structure, al-
lows the Government and the alien to agree upon a quid
pro quo. From the Government’s standpoint, the alien’s
agreement to leave voluntarily expedites the departure
process and avoids the expense of deportation—including
procuring necessary documents and detaining the alien
pending deportation. The Government also eliminates
some of the costs and burdens associated with litigation
over the departure. With the apparent purpose of assur-
ing that the Government attains the benefits it seeks, the
Act imposes limits on the time for voluntary departure,
see supra, at 7, and prohibits judicial review of voluntary
departure decisions, see 8 U. S. C. §§1229c(f) and
1252(a)(2)(B)(i).
Benefits to the alien from voluntary departure are evi-
dent as well. He or she avoids extended detention pending
completion of travel arrangements; is allowed to choose
when to depart (subject to certain constraints); and can
select the country of destination. And, of great impor-
tance, by departing voluntarily the alien facilitates the
possibility of readmission. The practice was first justified
as involving “no warrant of deportation . . . so that if [the
alien reapplies] for readmission in the proper way he will
not be barred.” 2 National Commission on Law Obser-
vance and Enforcement: Report on the Enforcement of the
Cite as: 554 U. S. ____ (2008) 9
Opinion of the Court
Deportation Laws of the United States 57, 102–103 (1931)
(Report No. 5). The current statute likewise allows an
alien who voluntarily departs to sidestep some of the
penalties attendant to deportation. Under the current
Act, an alien involuntarily removed from the United
States is ineligible for readmission for a period of 5, 10, or
20 years, depending upon the circumstances of removal.
See 8 U. S. C. §1182(a)(9)(A)(i) (“Any alien who has been
ordered removed under section 1225(b)(1) of this title or at
the end of proceedings under section 1229a of this title
initiated upon the alien’s arrival in the United States and
who again seeks admission within 5 years of the date of
such removal (or within 20 years in the case of a second or
subsequent removal . . . ) is inadmissible”); §1182(a)(9)
(A)(ii) (“Any alien not described in clause (i) who—(I) has
been ordered removed under section [240] or any other
provision of law, or (II) departed the United States while
an order of removal was outstanding, and who seeks ad-
mission within 10 years of the date of such alien’s depar-
ture or removal . . . is inadmissible”). An alien who
makes a timely departure under a grant of voluntary
departure, on the other hand, is not subject to these re-
strictions—although he or she otherwise may be ineligible
for readmission based, for instance, on an earlier unlawful
presence in the United States, see §1182(a)(9)(B)(i).
B
A motion to reopen is a form of procedural relief that
“asks the Board to change its decision in light of newly
discovered evidence or a change in circumstances since the
hearing.” 1 Gordon §3.05[8][c]. Like voluntary departure,
reopening is a judicial creation later codified by federal
statute. An early reference to the procedure was in 1916,
when a Federal District Court addressed an alien’s motion
to reopen her case to provide evidence of her marriage to a
United States citizen. See Ex parte Chan Shee, 236 F. 579
10 DADA v. MUKASEY
Opinion of the Court
(ND Cal. 1916); see also Chew Hoy Quong v. White, 244 F.
749, 750 (CA9 1917) (addressing an application to reopen
to correct discrepancies in testimony). “The reopening of a
case by the immigration authorities for the introduction of
further evidence” was treated then, as it is now, as “a
matter for the exercise of their discretion”; where the alien
was given a “full opportunity to testify and to present all
witnesses and documentary evidence at the original hear-
ing,” judicial interference was deemed unwarranted.
Wong Shong Been v. Proctor, 79 F. 2d 881, 883 (CA9 1935).
In 1958, when the BIA was established, the Attorney
General promulgated a rule for the reopening and recon-
sideration of removal proceedings, 8 CFR §3.2, upon which
the current regulatory provision is based. See 23 Fed.
Reg. 9115, 9118–9119 (1958), final rule codified at 8 CFR
§3.2 (1959) (“The Board may on its own motion reopen or
reconsider any case in which it has rendered a decision”
upon a “written motion”); see also Board of Immigration
Appeals: Powers; and Reopening or Reconsideration of
Cases, 27 Fed. Reg. 96–97 (Jan. 5, 1962). Until 1996,
there was no time limit for requesting the reopening of a
case due to the availability of new evidence.
Then, in 1990, “fear[ful] that deportable or excludable
aliens [were] try[ing] to prolong their stays in the U. S. by
filing one type of discretionary relief . . . after another in
immigration proceedings,” Justice Dept. Finds Aliens Not
Abusing Requests for Relief, 68 No. 27 Interpreter Re-
leases 907 (July 22, 1991), Congress ordered the Attorney
General to “issue regulations with respect to . . . the period
of time in which motions to reopen . . . may be offered in
deportation proceedings,” including “a limitation on the
number of such motions that may be filed and a maximum
time period for the filing of such motions,” §545(d)(1), 104
Stat. 5066. The Attorney General found little evidence of
abuse, concluding that requirements for reopening are a
disincentive to bad faith filings. See 68 Interpreter Re-
Cite as: 554 U. S. ____ (2008) 11
Opinion of the Court
leases, supra. Because “Congress . . . neither rescinded
[n]or amended its mandate to limit the number and time
frames of motions,” however, the Department of Justice
(DOJ) issued a regulation imposing new time limits and
restrictions on filings. The new regulation allowed the
alien to file one motion to reopen within 90 days. Execu-
tive Office for Immigration Review; Motions and Appeals
in Immigration Proceedings, 61 Fed. Reg. 18900, 18901,
18905 (1996); see 8 CFR §3.2(c) (1996).
With the 1996 enactment of the Act, Congress adopted
the recommendations of the DOJ with respect to numeri-
cal and time limits. The current provision governing
motions to reopen states:
“(A) In general
“An alien may file one motion to reopen proceedings
under this section . . . .
“(B) Contents
“The motion to reopen shall state the new facts that
will be proven at a hearing to be held if the motion is
granted, and shall be supported by affidavits or other
evidentiary material.
“(C) Deadline
(i) “In general
“Except as provided in this subparagraph, the mo-
tion to reopen shall be filed within 90 days of the date
of entry of a final administrative order of removal.” 8
U. S. C. §1229a(c)(7) (2000 ed., Supp. V).
To qualify as “new,” §1229a(c)(7)(B), the facts must be
“material” and of the sort that “could not have been dis-
covered or presented at the former hearing,” 8 CFR
§1003.2(c)(1) (2007); 1 Gordon §3.05[8][c] (“Evidence is not
previously unavailable merely because the movant chose
not to testify or to present evidence earlier, or because the
IJ refused to admit the evidence”). There are narrow
exceptions to the 90-day filing period for asylum pro-
12 DADA v. MUKASEY
Opinion of the Court
ceedings and claims of battered spouses, children, and
parents, see 8 U. S. C. §§1229a(c)(7)(C)(ii), (iv) (2000 ed.,
Supp. V), which are not applicable here.
The Act, to be sure, limits in significant ways the avail-
ability of the motion to reopen. It must be noted, though,
that the Act transforms the motion to reopen from a regu-
latory procedure to a statutory form of relief available to
the alien. Nowhere in §1229c(b) or §1229a(c)(7) did Con-
gress discuss the impact of the statutory right to file a
motion to reopen on a voluntary departure agreement.
And no legislative history indicates what some Members of
Congress might have intended with respect to the motion’s
status once the voluntary departure period has elapsed.
But the statutory text is plain insofar as it guarantees to
each alien the right to file “one motion to reopen proceed-
ings under this section.” §1229a(c)(7)(A) (2000 ed., Supp.
V).
III
The Government argues that, by requesting and obtain-
ing permission to voluntarily depart, the alien knowingly
surrenders the opportunity to seek reopening. See Brief
for Respondent 29–30. Further, according to the Govern-
ment, petitioner’s proposed rule for tolling the voluntary
departure period would undermine the “carefully crafted
rules governing voluntary departure,” including the statu-
tory directive that these aliens leave promptly. Id., at 18,
46–47.
To be sure, 8 U. S. C. §1229c(b)(2) contains no ambigu-
ity: The period within which the alien may depart volun-
tarily “shall not be valid for a period exceeding 60 days.”
See also 8 CFR §1240.26(f) (2007) (“In no event can the
total period of time, including any extension, exceed” the
statutory periods prescribed by 8 U. S. C. §1229c(a) and
§1229c(b)); §1229c(d) (2000 ed. and Supp. V) (imposing
statutory penalties for failure to depart). Further,
Cite as: 554 U. S. ____ (2008) 13
Opinion of the Court
§1229a(c)(7) does not forbid a scheme under which an
alien knowingly relinquishes the right to seek reopening
in exchange for other benefits, including those available to
the alien under the voluntary departure statute. That
does not describe this case, however. Nothing in the stat-
utes or past usage with respect to voluntary departure or
motions to reopen indicates they cannot coexist. Neither
§1229a(c)(7) nor §1229c(b)(2) says anything about the
filing of a motion to reopen by an alien who has requested
and been granted the opportunity to voluntarily depart.
And there is no other statutory language that would place
the alien on notice of an inability to seek the case’s reopen-
ing in the event of newly discovered evidence or changed
circumstances bearing upon eligibility for relief.
In reading a statute we must not “look merely to a
particular clause,” but consider “in connection with it the
whole statute.” Kokoszka v. Belford, 417 U. S. 642, 650
(1974) (quoting Brown v. Duchesne, 19 How. 183, 194
(1857); internal quotation marks omitted); see also Gozlon-
Peretz v. United States, 498 U. S. 395, 407 (1991) (“ ‘In
determining the meaning of the statute, we look not only
to the particular statutory language, but to the design of
the statute as a whole and to its object and policy’ ” (quot-
ing Crandon v. United States, 494 U. S. 152, 158 (1990)));
United States v. Heirs of Boisdoré, 8 How. 113, 122 (1850)
(“[W]e must not be guided by a single sentence or member
of a sentence, but look to the provisions of the whole law,
and to its object and policy”).
Reading the Act as a whole, and considering the statu-
tory scheme governing voluntary departure alongside the
statutory right granted to the alien by 8 U. S. C.
§1229a(c)(7)(A) (2000 ed., Supp. V) to pursue “one motion
to reopen proceedings,” the Government’s position that the
alien is not entitled to pursue a motion to reopen if the
alien agrees to voluntarily depart is unsustainable. It
would render the statutory right to seek reopening a
14 DADA v. MUKASEY
Opinion of the Court
nullity in most cases of voluntary departure. (And this
group is not insignificant in number; between 2002 and
2006, 897,267 aliens were found removable, of which
122,866, or approximately 13.7%, were granted voluntary
departure. See DOJ, Executive Office for Immigration
Review, FY 2006 Statistical Year Book, at Q 1 (Feb. 2007).)
It is foreseeable, and quite likely, that the time allowed for
voluntary departure will expire long before the BIA issues
a decision on a timely filed motion to reopen. See Pro-
posed Rules, DOJ, Executive Office for Immigration Re-
view, Voluntary Departure: Effect of a Motion to Reopen
or Reconsider or a Petition for Review, 72 Fed. Reg. 67674,
67677, and n. 2 (2007) (“As a practical matter, it is often
the case that an immigration judge or the Board cannot
reasonably be expected to adjudicate a motion to reopen or
reconsider during the voluntary departure period”). These
practical limitations must be taken into account. In the
present case the BIA denied petitioner’s motion to reopen
68 days after he filed the motion—and 66 days after his
voluntary departure period had expired. Although the
record contains no statistics on the average disposition
time for motions to reopen, the number of BIA proceedings
has increased over the last two decades, doubling between
1992 and 2000 alone; and, as a result, the BIA’s backlog
has more than tripled, resulting in a total of 63,763 unde-
cided cases in 2000. See Dorsey & Whitney LLP, Study
Conducted for: the American Bar Association Commission
on Immigration Policy, Practice and Pro Bono Re: Board of
Immigration Appeals: Procedural Reforms to Improve
Case Management 13 (2003), online at http://www.dorsey.
com/files/upload/DorseyStudyABA_8mgPDF.pdf.
Since 2000, the BIA has adopted new procedures to
reduce its backlog and shorten disposition times. In 2002,
the DOJ introduced rules to improve case management,
including an increase in the number of cases referred to a
single Board member and use of summary disposition
Cite as: 554 U. S. ____ (2008) 15
Opinion of the Court
procedures for cases without basis in law or fact. See BIA:
Procedural Reforms to Improve Case Management, 67
Fed. Reg. 54878 (2002), final rule codified at 8 CFR §1003
(2006); see also §1003.1(e)(4) (summary affirmance proce-
dures). Nevertheless, on September 30, 2005, there were
33,063 cases pending before the BIA, 18% of which were
more than a year old. See FY 2006 Statistical Year Book,
supra, at U1. On September 30, 2006, approximately 20%
of the cases pending had been filed during fiscal year
2005. See ibid. Whether an alien’s motion will be adjudi-
cated within the 60-day statutory period in all likelihood
will depend on pure happenstance—namely, the backlog of
the particular Board member to whom the motion is as-
signed. Cf. United States v. Wilson, 503 U. S. 329, 334
(1992) (arbitrary results are “not to be presumed lightly”).
Absent tolling or some other remedial action by the
Court, then, the alien who is granted voluntary departure
but whose circumstances have changed in a manner cogni-
zable by a motion to reopen is between Scylla and Charyb-
dis: He or she can leave the United States in accordance
with the voluntary departure order; but, pursuant to
regulation, the motion to reopen will be deemed with-
drawn. See 8 CFR §1003.2(d); see also 23 Fed. Reg. 9115,
9118, final rule codified at 8 CFR §3.2 (1958). Alterna-
tively, if the alien wishes to pursue reopening and remains
in the United States to do so, he or she risks expiration of
the statutory period and ineligibility for adjustment of
status, the underlying relief sought. See 8 U. S. C.
§1229c(d)(1) (2000 ed., Supp. V) (failure to timely depart
renders alien “ineligible, for a period of 10 years,” for
cancellation of removal under §240A, adjustment of status
under §245, change of nonimmigrant status under §248,
and registry under §249 of the INA); see also App. to Pet.
for Cert. 3–4 (treating petitioner’s motion to reopen as
forfeited for failure to depart).
The purpose of a motion to reopen is to ensure a proper
16 DADA v. MUKASEY
Opinion of the Court
and lawful disposition. We must be reluctant to assume
that the voluntary departure statute was designed to
remove this important safeguard for the distinct class of
deportable aliens most favored by the same law. See 8
U. S. C. §§1229c(a)(1), (b)(1)(C) (barring aliens who have
committed, inter alia, aggravated felonies or terrorism
offenses from receiving voluntary departure);
§1229c(b)(1)(B) (requiring an alien who obtains voluntary
departure at the conclusion of removal proceedings to
demonstrate “good moral character”). This is particularly
so when the plain text of the statute reveals no such limi-
tation. See Costello v. INS, 376 U. S. 120, 127–128 (1964)
(counseling long hesitation “before adopting a construction
of [the statute] which would, with respect to an entire
class of aliens, completely nullify a procedure so intrinsic a
part of the legislative scheme”); see also Stone v. INS, 514
U. S. 386, 399 (1995) (“Congress might not have wished to
impose on the alien” the difficult choice created by treating
a motion to reopen as rendering the underlying order
nonfinal for purposes of judicial review); INS v. St. Cyr,
533 U. S. 289, 320 (2001) (recognizing “ ‘the longstanding
principle of construing any lingering ambiguities in depor-
tation statutes in favor of the alien’ ” (quoting INS v.
Cardoza-Fonseca, 480 U. S. 421, 449 (1987))).
IV
A
It is necessary, then, to read the Act to preserve the
alien’s right to pursue reopening while respecting the
Government’s interest in the quid pro quo of the voluntary
departure arrangement.
Some solutions, though, do not conform to the statutory
design. Petitioner, as noted, proposes automatic tolling of
the voluntary departure period during the pendency of the
motion to reopen. We do not find statutory authority for
this result. Voluntary departure is an agreed-upon ex-
Cite as: 554 U. S. ____ (2008) 17
Opinion of the Court
change of benefits, much like a settlement agreement. In
return for anticipated benefits, including the possibility of
readmission, an alien who requests voluntary departure
represents that he or she “has the means to depart the
United States and intends to do so” promptly. 8 U. S. C.
§1229c(b)(1)(D); 8 CFR §§1240.26(c)(1)–(2) (2007); cf.
§1240.26(c)(3) (the judge may impose additional conditions
to “ensure the alien’s timely departure from the United
States”). Included among the substantive burdens im-
posed upon the alien when selecting voluntary departure
is the obligation to arrange for departure, and actually
depart, within the 60-day period. Cf. United States v.
Brockamp, 519 U. S. 347, 352 (1997) (substantive limita-
tions are not subject to equitable tolling). If the alien is
permitted to stay in the United States past the departure
date to wait out the adjudication of the motion to reopen,
he or she cannot then demand the full benefits of volun-
tary departure; for the benefit to the Government—a
prompt and costless departure—would be lost. Further-
more, it would invite abuse by aliens who wish to stay in
the country but whose cases are not likely to be reopened
by immigration authorities.
B
Although a statute or regulation might be adopted to
resolve the dilemma in a different manner, as matters now
stand the appropriate way to reconcile the voluntary
departure and motion to reopen provisions is to allow an
alien to withdraw the request for voluntary departure
before expiration of the departure period.
The DOJ, which has authority to adopt regulations
relevant to the issue at hand, has made a preliminary
determination that the Act permits an alien to withdraw
an application for voluntary departure before expiration of
the departure period. According to this proposal, there is
nothing in the Act or the implementing regulations that
18 DADA v. MUKASEY
Opinion of the Court
makes the grant of voluntary departure irrevocable. See
72 Fed. Reg. 67679. Accordingly, the DOJ has proposed
an amendment to 8 CFR §1240.26 that, prospectively,
would “provide for the automatic termination of a grant of
voluntary departure upon the timely filing of a motion to
reopen or reconsider, as long as the motion is filed prior to
the expiration of the voluntary departure period.” 72 Fed.
Reg. 67679, Part IV–D; cf. id., at 67682, Part VI (“The
provisions of this proposed rule will be applied prospec-
tively only, that is, only with respect to immigration judge
orders issued on or after the effective date of the final rule
that grant a period of voluntary departure”). Although not
binding in the present case, the DOJ’s proposed interpre-
tation of the statutory and regulatory scheme as allowing
an alien to withdraw from a voluntary departure agree-
ment “warrants respectful consideration.” Wisconsin Dept.
of Health and Family Servs. v. Blumer, 534 U. S. 473, 497
(2002) (citing United States v. Mead Corp., 533 U. S. 218
(2001), and Thomas Jefferson Univ. v. Shalala, 512 U. S.
504 (1994)).
We hold that, to safeguard the right to pursue a motion
to reopen for voluntary departure recipients, the alien
must be permitted to withdraw, unilaterally, a voluntary
departure request before expiration of the departure pe-
riod, without regard to the underlying merits of the mo-
tion to reopen. As a result, the alien has the option either
to abide by the terms, and receive the agreed-upon bene-
fits, of voluntary departure; or, alternatively, to forgo
those benefits and remain in the United States to pursue
an administrative motion.
If the alien selects the latter option, he or she gives up
the possibility of readmission and becomes subject to the
IJ’s alternate order of removal. See 8 CFR §1240.26(d).
The alien may be removed by the Department of Home-
land Security within 90 days, even if the motion to reopen
has yet to be adjudicated. See 8 U. S. C. §1231(a)(1)(A).
Cite as: 554 U. S. ____ (2008) 19
Opinion of the Court
But the alien may request a stay of the order of removal,
see BIA Practice Manual §6.3(a), online at http://
www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm; cf. 8
U. S. C. §1229a(b)(5)(C) (providing that a removal order
entered in absentia is stayed automatically pending a
motion to reopen); and, though the BIA has discretion to
deny the motion for a stay, it may constitute an abuse of
discretion for the BIA to do so where the motion states
nonfrivolous grounds for reopening.
Though this interpretation still confronts the alien with
a hard choice, it avoids both the quixotic results of the
Government’s proposal and the elimination of benefits to
the Government that would follow from petitioner’s tolling
rule. Contrary to the Government’s assertion, the rule we
adopt does not alter the quid pro quo between the Gov-
ernment and the alien. If withdrawal is requested prior to
expiration of the voluntary departure period, the alien has
not received benefits without costs; the alien who with-
draws from a voluntary departure arrangement is in the
same position as an alien who was not granted voluntary
departure in the first instance. Allowing aliens to with-
draw from their voluntary departure agreements, more-
over, establishes a greater probability that their motions
to reopen will be considered. At the same time, it gives
some incentive to limit filings to nonfrivolous motions to
reopen; for aliens with changed circumstances of the type
envisioned by Congress in drafting §1229a(c)(7) (2000 ed.
and Supp. V) are the ones most likely to forfeit their pre-
vious request for voluntary departure in return for the
opportunity to adjudicate their motions. Cf. Supplemental
Brief for Respondent 1–2 (“[I]t is extraordinarily rare for
an alien who has requested and been granted voluntary
departure by the BIA to seek to withdraw from that ar-
rangement within the voluntary departure period”).
A more expeditious solution to the untenable conflict
between the voluntary departure scheme and the motion
20 DADA v. MUKASEY
Opinion of the Court
to reopen might be to permit an alien who has departed
the United States to pursue a motion to reopen post-
departure, much as Congress has permitted with respect
to judicial review of a removal order. See IIRIRA §306(b),
110 Stat. 3009–612 (repealing 8 U. S. C. §1105a(c) (1994
ed.), which prohibited an alien who “departed from the
United States after the issuance of the order” to seek
judicial review). As noted previously, 8 CFR §1003.2(d)
provides that the alien’s departure constitutes withdrawal
of the motion to reopen. This regulation, however, has not
been challenged in these proceedings, and we do not con-
sider it here.
* * *
Petitioner requested withdrawal of his motion for volun-
tary departure prior to expiration of his 30-day departure
period. The BIA should have granted this request, without
regard to the merits of petitioner’s I–130 petition, and
permitted petitioner to pursue his motion to reopen. We
find this same mistake implicit in the Court of Appeals’
decision. We reverse the judgment of the Court of Appeals
and remand the case for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 554 U. S. ____ (2008) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1181
_________________
SAMSON TAIWO DADA, PETITIONER v. MICHAEL B.
MUKASEY, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 16, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
The statutory provision at issue here authorizes the
Attorney General to permit an alien who has been found
deportable, if he so requests, to depart the country volun-
tarily. This enables the alien to avoid detention pending
involuntary deportation, to select his own country of des-
tination, to leave according to his own schedule (within the
prescribed period), and to avoid restrictions upon readmis-
sion that attend involuntary departure. The statute speci-
fies that the permission “shall not be valid for a period
exceeding 60 days,” 8 U. S. C. §1229c(b)(2), and that fail-
ure to depart within the prescribed period causes the alien
to be ineligible for certain relief, including adjustment of
status, for 10 years, §1229c(d)(1) (2000 ed., Supp. V).
Moreover, pursuant to a regulation that the Court accepts
as valid, departure (whether voluntary or involuntary)
terminates the alien’s ability to move for reopening of his
removal proceeding, and withdraws any such motion filed
before his departure. See 8 CFR §1003.2(d) (2007). All of
these provisions were in effect when petitioner agreed to
depart, and the Court cites no statute or regulation cur-
rently in force that permits an alien who has agreed vol-
untarily to depart to change his mind. Yet the Court holds
that petitioner must be permitted to renounce that agree-
2 DADA v. MUKASEY
SCALIA, J., dissenting
ment (the opinion dresses this up as “withdraw[ing] the
motion for voluntary departure”) provided the request is
made before the departure period expires. Ante, at 2.
That is “necessary,” the Court says, to “preserve the
alien’s right to pursue reopening,” ante, at 16, forfeiture of
which was the known consequence of the departure he had
agreed to. The Court’s perceived “necessity” does not
exist, and the Court lacks the authority to impose its
chosen remedy. I respectfully dissent.
* * *
The Court is resolute in its belief that there is a “conflict
between the right to file a motion to reopen and the provi-
sion requiring voluntary departure no later than 60 days.”
Ante, at 2. The statute cannot be interpreted to put the
alien to the choice of either (1) “remain[ing] in the United
States to ensure [his] motion to reopen remains pending,
while incurring statutory penalties for overstaying the
voluntary departure date” or (2) “avoid[ing] penalties by
prompt departure but abandon[ing] the motion to reopen.”
Ibid. This, according to the Court, would “render the
statutory right to seek reopening a nullity in most cases of
voluntary departure.” Ante, at 13–14. Indeed, the prob-
lem is of mythological proportions: “[T]he alien who is
granted voluntary departure but whose circumstances
have changed in a manner cognizable by a motion to re-
open is between Scylla and Charybdis: He or she can leave
the United States in accordance with the voluntary depar-
ture order; but, pursuant to regulation, the motion to
reopen will be deemed withdrawn.” Ante, at 15. So cer-
tain is the Court of this premise that it is asserted no less
than seven times during the course of today’s opinion. See
ante, at 2, 13, 15–19.
The premise is false. It would indeed be extraordinary
(though I doubt it would justify a judicial rewrite) for a
statute to impose that stark choice upon an alien: depart
Cite as: 554 U. S. ____ (2008) 3
SCALIA, J., dissenting
and lose your right to seek reopening, or stay and incur
statutory penalties. But that is not the choice this statute
imposes. It offers the alien a deal, if he finds it in his
interest and wishes to take it: “Agree to depart voluntarily
(within the specified period, of course) and you may lose
your right to pursue reopening, but you will not suffer
detention, you can depart at your own convenience rather
than ours, and to the destination that you rather than we
select, and you will not suffer the statutory restrictions
upon reentry that accompany involuntary departure. If
you accept this deal, however, but do not live up to it—if
you fail to depart as promised within the specified pe-
riod—you will become ineligible for cancellation of re-
moval, adjustment of status, and voluntary departure.”
Seems entirely reasonable to me. Litigants are put to
similar voluntary choices between the rock and the whirl-
pool all the time, without cries for a judicial rewrite of the
law. It happens, for example, whenever a criminal defen-
dant is offered a plea bargain that gives him a lesser
sentence than he might otherwise receive but deprives
him of his right to trial by jury and his right to appeal. It
is indeed utterly commonplace that electing to pursue one
avenue of relief may require the surrender of certain other
remedies.
Petitioner requested and accepted the above described
deal, but now—to put the point bluntly but entirely accu-
rately—he wants to back out. The case is as simple as
that. Two days before the deadline for his promised vol-
untary departure, he filed a motion asking the Board of
Immigration Appeals (BIA) to reopen his removal proceed-
ings and remand his case to the Immigration Judge for
adjustment of status based on his wife’s pending visa
petition. Administrative Record 3; see id., at 8–21. The
motion also asked the BIA to “withdraw his request for
voluntary departure” and “instead accep[t] an order of
deportation.” Id., at 10. After the voluntary departure
4 DADA v. MUKASEY
SCALIA, J., dissenting
period expired, the BIA denied petitioner’s motion to
reopen, explaining that under 8 U. S. C. §1229c(d) (2000
ed. and Supp. V), “an alien who fails to depart following a
grant of voluntary departure . . . is statutorily barred from
applying for certain forms of discretionary relief.” App. to
Pet. for Cert. 3–4.
It seems to me that the BIA proceeded just as it should
have, and just as petitioner had every reason to expect. To
be sure, the statute provides for the right to file (and
presumably to have ruled upon in due course) a petition to
reopen. But it does not forbid the relinquishment of that
right in exchange for other benefits that the BIA has
discretion to provide. Nor does it suggest any weird de-
parture from the ancient rule that an offer (the offer to
depart voluntarily in exchange for specified benefits, and
with specified consequences for default) cannot be “with-
drawn” after it has been accepted and after the quid pro
quo promise (to depart) has been made.
The Court’s rejection of this straightforward analysis is
inconsistent with its treatment of petitioner’s argument
that the statute requires automatic tolling of the volun-
tary departure period while a motion to reopen is pending.
With respect to that argument, the Court says:
“Voluntary departure is an agreed-upon exchange of
benefits, much like a settlement agreement. In return
for anticipated benefits, including the possibility of
readmission, an alien who requests voluntary depar-
ture represents that he or she ‘has the means to de-
part the United States and intends to do so’ promptly.
Included among the substantive burdens imposed
upon the alien when selecting voluntary departure is
the obligation to arrange for departure, and actually
depart, within the 60-day period.” Ante, at 16–17 (ci-
tations omitted).
Cite as: 554 U. S. ____ (2008) 5
SCALIA, J., dissenting
Precisely so. But also among the substantive burdens is
the inability to receive certain relief through a motion to
reopen once the promised departure date has passed; and
perhaps paramount among the substantive burdens is
that the alien is bound to his agreement. The Court is
quite right that the Act does not allow us to require that
an alien who agrees to depart voluntarily must receive the
benefits of his bargain without the costs. But why does it
allow us to convert the alien’s statutorily required promise
to depart voluntarily into an “option either to abide by the
terms, and receive the agreed-upon benefits, of voluntary
departure; or, alternatively, to forgo those benefits and
remain in the United States to pursue an administrative
motion”? Ante, at 18. And why does it allow us to nullify
the provision of §1229c(d)(1) that failure to depart within
the prescribed and promised period causes the alien to be
ineligible for certain relief, including adjustment of status
(which is what petitioner seeks here) for 10 years?
Of course it is not unusual for the Court to blue-pencil a
statute in this fashion, directing that one of its provisions,
severable from the rest, be disregarded. But that is done
when the blue-penciled provision is unconstitutional. It
would be unremarkable, if the Court found that the alien
had a constitutional right to reopen, and that conditioning
permission for voluntary departure upon waiver of that
right was an unconstitutional condition, for the Court to
order that the alien cannot be held to his commitment.
But that is not the case here. The Court holds that the
plain requirement of the statute and of validly adopted
regulations cannot be enforced because the statute itself
forbids it.
Not so. The Court derives this prohibition from its
belief that an alien must, no matter what, be given the full
benefit of the right to reopen, even if that means creating
an extrastatutory option to renege upon the statutorily
contemplated agreement to depart voluntarily. “We must
6 DADA v. MUKASEY
SCALIA, J., dissenting
be reluctant to assume,” the Court says, “that the volun-
tary departure statute was designed to remove this impor-
tant safeguard [of the motion to reopen],” “particularly so
when the plain text of the statute reveals no such limita-
tion.” Ante, at 16. But in fact that safeguard is not sacro-
sanct. The “plain text of the statute” does cause voluntary
departure to remove that safeguard for at least 30 days of
its 90-day existence, and permits voluntary departure to
remove it almost entirely. Section 1229a(c)(7) (2000 ed.,
Supp. V) generally permits the filing of a motion to reopen
“within 90 days of . . . entry of a final administrative order
of removal.” But as I have described, §1229c(b)(2) (2000
ed.) provides that a grant of voluntary departure issued at
the conclusion of removal proceedings “shall not be valid
for a period exceeding 60 days.” Since motions to reopen
cannot be filed after removal or departure, the unques-
tionable effect of the statutory scheme is to deprive the
alien who agrees to voluntary departure of the (sacro-
sanct) right to reopen for a full third of its existence. And
since 60 days is merely the maximum period for a volun-
tary departure, it is theoretically possible for the right to
reopen to be limited to one week, or even one day. Given
that reality, it is not at all hard to believe that the statute
allows nullification of motions to reopen requesting ad-
justment of status filed within the 60-day departure pe-
riod and not ruled upon before departure. Indeed, it
seems to me much more likely that the statute allows that
than that it allows judicial imposition of the unheard-of
rule that a promise to depart is not a promise to depart,
and judicial nullification of a statutorily prescribed pen-
alty for failure to depart by the gimmick of allowing the
request for voluntary departure to be “withdrawn.”
The same analysis makes it true that, even under the
Court’s reconstructed statute, a removable alien’s agree-
ment to depart voluntarily may limit, and in some in-
stances foreclose, his ability to pursue a motion to reopen
Cite as: 554 U. S. ____ (2008) 7
SCALIA, J., dissenting
at a later date. Even if the alien who has agreed to volun-
tary departure is permitted to renege within the specified
departure period, that period can be no longer than 60
days after entry of the order of removal—meaning that he
has been deprived of at least 30 days of his right to reopen.
Thus, the Court has not “reconciled” statutory provisions;
it has simply rewritten two of them to satisfy its notion of
sound policy—the requirement of a commitment to depart
and the prescription that a failure to do so prevents ad-
justment of status.
The Court suggests that the statute compels its conclu-
sion because otherwise “[w]hether an alien’s motion will
be adjudicated within the 60-day statutory period in all
likelihood will depend on pure happenstance—namely, the
backlog of the particular Board member to whom the
motion is assigned” and because “arbitrary results are ‘not
to be presumed lightly.’ ” Ante, at 15. It is, however, a
happenstance that the alien embraces when he makes his
commitment to leave, and its effect upon him is therefore
not arbitrary. If he wants to be sure to have his motion to
reopen considered, he should not enter into the voluntary
departure agreement. A reading of the statute that per-
mits that avoidable happenstance seems to me infinitely
more plausible than a reading that turns a commitment to
depart into an option to depart.
But the most problematic of all the Court’s reasons for
allowing petitioner to withdraw his motion to depart
voluntarily is its reliance on the Department of Justice’s
(DOJ) as-yet-unadopted proposal that is in some respects
(though not the crucial one) similar to the Court’s rule.
See ante, at 17–18 (citing Proposed Rules, DOJ, Executive
Office for Immigration Review, Voluntary Departure:
Effect of a Motion to Reopen or Reconsider or a Petition for
Review, 72 Fed. Reg. 67674, 67677, and n. 2 (2007)). I
shall assume that the proposed rule would be valid, even
8 DADA v. MUKASEY
SCALIA, J., dissenting
though it converts the statutory requirement of departure
within the prescribed period (on pain of losing the right to
seek adjustment of status) into an option to depart.1
According to the Court, the proposed regulation “ ‘war-
rants respectful consideration.’ ” Ante, at 18. What this
evidently means is respectful adoption of that portion of
the proposed regulation with which the Court agrees, and
sub silentio rejection of that portion it disfavors, namely:
“The provisions of this proposed rule will be applied . . .
only with respect to immigration judge orders issued on or
after the effective date of the final rule that grant a period
of voluntary departure,” 72 Fed. Reg. 67682. See Supp.
Brief for Respondent 8–9 (observing that the rule “will not
apply to petitioner’s case”). Our administrative law juris-
prudence is truly in a state of confused degeneration if this
pick-and-choose technique constitutes “respectful” consid-
eration.
It must be acknowledged, however, that the Depart-
ment’s proposed regulation has some bearing upon this
case: It demonstrates that the agency is actively consider-
ing whether the terms it has prescribed for its discretion-
ary grants of voluntary departure are too harsh and
should be revised for the future, perhaps along the very
lines that the Justices in today’s majority would choose if
they were the Attorney General. It shows, in other words,
that today’s interpretive gymnastics may have been per-
formed, not for the enjoyment of innumerable aliens in the
future, but for Mr. Dada alone.
——————
1 Anagency need not adopt, as we must, the best reading of a statute,
but merely one that is permissible. See Chevron U. S. A. Inc. v. Natu-
ral Resources Defense Council, Inc., 467 U. S. 837, 866 (1984). More-
over, the proposed rule, operating only prospectively, makes the ability
to withdraw part of the deal that the alien accepts, and limits the
alien’s commitment accordingly. Petitioner’s promise has already been
made, and the requirement that he depart within the specified period is
unconditional.
Cite as: 554 U. S. ____ (2008) 9
SCALIA, J., dissenting
* * *
In the final analysis, the Court’s entire approach to
interpreting the statutory scheme can be summed up in
this sentence from its opinion: “Allowing aliens to with-
draw from their voluntary departure agreements [ ] estab-
lishes a greater probability that their motions to reopen
will be considered.” Ante, at 19. That is true enough.
What does not appear from the Court’s opinion, however,
is the source of the Court’s authority to increase that
probability in flat contradiction to the text of the statute.
Just as the Government can (absent some other statutory
restriction) relieve criminal defendants of their plea
agreements for one reason or another, the Government
may well be able to let aliens who have agreed to depart
the country voluntarily repudiate their agreements. This
Court lacks such authority, and nothing in the statute
remotely dictates the result that today’s judgment decrees.
I would affirm the judgment of the Court of Appeals.2
——————
2 JUSTICE ALITO agrees that the statute does not require the BIA to
grant petitioner’s motion to withdraw from his agreement to depart
voluntarily. He chooses to remand the case because the BIA did not
give the reason for its denial of the withdrawal motion, and he believes
the reason would be the wrong one if the BIA thought it lacked statu-
tory authority to grant. Post, at 2 (dissenting opinion). But petitioner
has challenged neither the adequacy of the BIA’s reason for denying his
motion, nor the BIA’s failure to specify a reason. He has argued only
that the statute requires that he be allowed to withdraw.
Cite as: 554 U. S. ____ (2008) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1181
_________________
SAMSON TAIWO DADA, PETITIONER v. MICHAEL B.
MUKASEY, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 16, 2008]
JUSTICE ALITO, dissenting.
This case presents two questions: (1) “[w]hether the
filing of a motion to reopen removal proceedings automati-
cally tolls the period within which an alien must depart
. . . under an order granting voluntary departure,” Brief
for Petitioner i, and (2) “[w]hether an alien who has been
granted voluntary departure and has filed a timely motion
to reopen should be permitted to withdraw the request for
voluntary departure prior to the expiration of the depar-
ture period,” 552 U. S. ____ (2008). I agree with the Court
that the answer to the first question is no. Ante, at 2.
As to the second question, the Court’s reasoning escapes
me. The Court holds as follows: “Absent a valid regulation
resolving the dilemma in a different way,” “the appropriate
way to reconcile the” relevant provisions of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 “is to allow an alien to withdraw the request for
voluntary departure before expiration of the departure
period.” Ante, at 2, 17 (emphasis added). Thus, the Court
apparently does not hold that the statute compels the
Government to permit an alien to withdraw a request for
voluntary departure, only that the statute permits that
approach, a proposition with which I agree.
Since the statute does not decide the question whether
an alien should be permitted to withdraw a voluntary
2 DADA v. MUKASEY
ALITO, J., dissenting
departure request, the authority to make that policy
choice rests with the agency. See, e.g., Smiley v. Citibank
(South Dakota), N. A., 517 U. S. 735, 740–741 (1996)
(noting the “presumption that Congress, when it left am-
biguity in a statute meant for implementation by an
agency, understood that the ambiguity would be resolved,
first and foremost, by the agency”); Department of Treas-
ury, IRS v. FLRA, 494 U. S. 922, 932–933 (1990) (refusing
to sustain an agency’s decision on the ground that it was
based on “a permissible (though not an inevitable) con-
struction of [a] statute,” because the agency should define
and adopt that construction “in the first instance”). Ac-
cordingly, at the time of the decision in petitioner’s case,
the Board of Immigration Appeals (BIA or Board) had the
authority (a) to adopt the majority’s automatic withdrawal
rule (indeed, the agency has proposed a regulation to that
effect, see ante, at 18), (b) to decide that withdrawal
should be permitted in certain circumstances, which may
or may not be present here, or (c) to hold that a motion to
withdraw is never appropriate.
Neither the BIA nor the Fifth Circuit addressed peti-
tioner’s motion to withdraw, see ante, at 4, and therefore
the ground for the Board’s decision is unclear. I would
affirm if the BIA either chose as a general matter not to
permit the withdrawal of requests for voluntary departure
or decided that permitting withdrawal was not appropri-
ate under the facts of this case. However, if the BIA re-
jected the withdrawal request on the ground that it lacked
the statutory authority to permit it, the Board erred.
Because the ground for the BIA’s decision is uncertain, I
would vacate and remand.