OPINION OF THE COURT
DADA V. MUKASEY
554 U. S. ____ (2008)
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 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. 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 provides 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 officials, which cannot exceed 60 days. See
§1229c(b)(2) (2000 ed.). Failure to depart within the prescribed
period renders the alien ineligible for certain forms of relief,
including 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 reconcile the two commands—one directing voluntary departure and
the other directing termination of the motion to reopen if an alien
departs the United States—an alien who seeks reopening has two poor
choices: The alien can remain 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 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. 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.
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. 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.
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, including 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 evidence demonstrating a bona fide
marriage and that his case should be continued until the second
I–130 petition was resolved.
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 overstayed 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 statutorily 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 petitioner’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);
Sidikhouya 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 immigration 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 conclusion of removal proceedings or after
being found deportable—to leave the country willingly. Between 1927
to 2005, over 42 million aliens were granted voluntary departure;
almost 13 million of those departures occurred between 1996 and
2005 alone. See Dept. of Homeland Security, 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 administrative 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 Immigration 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 preceding 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 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 Commissioner 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
voluntarily to depart the United States at the alien’s own expense
if, at the conclusion of a proceeding under section 1229a of this
title, the immigration judge enters an order granting voluntary
departure in lieu of removal 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).
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 requirements of
§1229c(b)(1) if removability is conceded).
When voluntary departure is requested at the
conclusion 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 requests voluntary departure
before or during removal proceedings. See §1229c(a)(2)(A).
Appropriate immigration 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 immigration 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 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 voluntary 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, allows 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 assuring 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 evident 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 importance, 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 Observance and
Enforcement: Report on the Enforcement of the 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 admission within 10 years of
the date of such alien’s departure 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
restrictions—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 (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 hearing,” 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 reconsideration 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 Releases 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 Releases,
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. Executive 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 numerical
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 discovered 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 proceedings 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 availability of the motion to reopen. It must be noted,
though, that the Act transforms the motion to reopen from a
regulatory procedure to a statutory form of relief available to the
alien. Nowhere in §1229c(b) or §1229a(c)(7) did Congress 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 proceedings
under this section.” §1229a(c)(7)(A) (2000 ed., Supp. V).
III
The Government argues that, by
requesting and obtaining permission to voluntarily depart, the
alien knowingly surrenders the opportunity to seek reopening. See
Brief for Respondent 29–30. Further, according to the Government,
petitioner’s proposed rule for tolling the voluntary departure
period would undermine the “carefully crafted rules governing
voluntary departure,” including the statutory directive that these
aliens leave promptly.
Id., at 18, 46–47.
To be sure, 8 U. S. C.
§1229c(b)(2) contains no ambiguity: The period within which the
alien may depart voluntarily “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, §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 statutes
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
reopening 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’ ”
(quoting
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 statutory 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 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 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) (“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 undecided 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 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
procedures). 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 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. 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 cognizable by a
motion to reopen is between Scylla and Charybdis: 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 withdrawn. See 8 CFR §1003.2(d); see also 23 Fed. Reg. 9115,
9118, final rule codified at 8 CFR §3.2 (1958). Alternatively, 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 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 limitation. 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 deportation 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
exchange 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 imposed 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 limitations 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
voluntary departure; for the benefit to the Government—a prompt and
costless departure—would be lost. Furthermore, 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 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 prospectively
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 interpretation of the statutory
and regulatory scheme as allowing an alien to withdraw from a
voluntary departure agreement “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 period, without regard
to the underlying merits of the motion to reopen. As a result, the
alien has the 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.
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 Homeland Security within
90 days, even if the motion to reopen has yet to be adjudicated.
See 8 U. S. C. §1231(a)(1)(A). 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 Government 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 withdraws 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
withdraw from their voluntary departure agreements, moreover,
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 previous 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 arrangement within the voluntary
departure period”).
A more expeditious solution to the untenable
conflict between the voluntary departure scheme and the motion to
reopen might be to permit an alien who has departed the United
States to pursue a motion to reopen postdeparture, 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 consider it here.
* * *
Petitioner requested withdrawal
of his motion for voluntary 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.
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