## Facts

- Samson Taiwo Dada, a Nigerian citizen, entered the United States in 1998 on a temporary visa and overstayed.
- He sought to adjust status based on marriage to a U.S. citizen; an initial I-130 petition was denied in 2003, and a second I-130 was pursued.
- The Department of Homeland Security charged him as removable for overstaying under the Immigration and Nationality Act.
- An Immigration Judge found him removable, denied a continuance, but granted voluntary departure with a 30-day departure period.
- The Board of Immigration Appeals (BIA) affirmed and ordered departure within 30 days, warning of statutory penalties for failing to depart.
- Two days before the voluntary-departure period expired, Dada filed a timely motion to reopen based on alleged new evidence of a bona fide marriage and requested withdrawal of voluntary departure.
- After the departure period expired, the BIA denied reopening on the ground that failure to depart triggered statutory ineligibility for adjustment of status and did not address the withdrawal request.
- The Fifth Circuit affirmed; the Supreme Court granted review to resolve the interaction between voluntary departure and the statutory right to file one motion to reopen.

## Issues

1. Whether filing a motion to reopen automatically tolls the period for voluntary departure.
2. Whether an alien granted voluntary departure must be allowed to withdraw that request before the voluntary-departure period expires in order to pursue a timely motion to reopen.

## Decision

- The Supreme Court reversed and remanded.
- The Court held that filing a motion to reopen does not automatically toll the voluntary-departure period.
- The Court held that an alien must be permitted to unilaterally withdraw a voluntary-departure request before the departure period expires to preserve the ability to pursue a timely motion to reopen without incurring statutory penalties for overstaying voluntary departure.
- Because the BIA did not address Dada’s timely withdrawal request and denied reopening based on failure to depart, further proceedings were required.

## Legal Principles

- The INA provides a statutory right to file one motion to reopen removal proceedings within the prescribed time limits.
- Voluntary departure is discretionary relief that exchanges benefits to the alien (avoiding formal removal consequences) for a commitment to depart by a fixed deadline; failure to depart can trigger statutory bars to certain immigration relief.
- Courts will not infer automatic tolling of a congressionally fixed voluntary-departure period absent clear statutory authorization.
- When voluntary departure and the right to reopen conflict in operation, the statutes are reconciled by allowing timely withdrawal of voluntary departure (before expiration), rather than tolling, so the right to reopen is not effectively extinguished for a broad class of cases.
- Withdrawal of voluntary departure preserves the motion to reopen but relinquishes the advantages of voluntary departure and leaves the underlying removal order in place.

## Conclusion

The Supreme Court held that a motion to reopen does not suspend a voluntary-departure deadline, but an alien who timely seeks reopening must be allowed to withdraw voluntary departure before the deadline expires, preventing voluntary-departure penalties from barring relief while preserving the statutory reopening right.


Dada v. Mukasey, 554 U.S. 1 (2008)