Dada v. Keisler or Dada v. Mukasey; An Immigration Case

[*The case has two names because the respondent has changed. At the time that Dada submitted his petition for cert. to the Court, Peter Keisler was Acting Attorney General after Alberto Gonzales crashed and burned in very public fashion; now the AG is Michael Mukasey. No big deal, but it can be a little confusing.]

This case has to do with the apparently contradictory relationship of two provisions of the Immigration and Nationality Act of 1996 (8 USC 1101 et seq; see bottom of this page for the issue). Rather than plunking you down in the middle of that difficult law and telling you to sink or swim right here, however, let's tell the story behind the case and see what your inclinations are. I think if you listen to the facts--and especially see the chronology, you might be rather astounded at it all.

Meet Mr. Dada

Dada is a person and not the art movement in Post-WWI Europe. Actually, he is Mr. Samson Dada, a Nigerian citizen, who applied for a nonimmigrant visa to the United States in 1998. A visa is an application for entrance to the US. If you receive a visa, it gives an "expiration date," but this doesn't allow you to stay in the country that long; it simply gives you the date that this visa application is no longer valid. When a foreign national with a nonimmigrant visa arrives at the US border, s/he is granted a period of time in which s/he can remain in the country. So, Mr. Dada arrived in the US on April 4, 1998 and could stay until August 31, 1998. But, as so often is the case, he overstayed.

At first, no one did anything about it. But in 1999 he decided to marry to a US citizen. She applied for an I-130 visa for her spouse, which was a way to get him to stay (more) permanently in the US. Normally it takes about 990 days--almost three years to adjudicate an I-130 visa petition. What? Why? I have no idea, but someone ought to try to figure this one out.

Well, finally on February 7, 2003, Homeland Security, which didn't even exist when they applied for an I-130 visa, denied the visa petition and deemed it "abandoned." Why? Well, they hadn't furnished all the right documentation to the immigration officials. I couldn't discover whose fault this was or whether Dada and wife were informed about their incomplete application. In any case, I-130 visa denied.

By this time, however, he has been in the country nearly five years after his nonimmigrant visa expired. Fear not. We are just beginning. A year later, on January 4, 2004, Homeland Security decided that Dada ought to be removed. The briefs I read didn't explain whether this was an official removal order (I think it was). In any case, if he had a removal order, he has some time to maneuver, to appeal, etc. So on March 17, 2004 the wife again decided to file an I-130 visa petition. Why? Well, if it took Homeland Security 3 1/2 years to get to the first one, you might as well try this again.

But the immigration judge (IJ) denied this petition but did allow Dada to request "voluntary departure" in lieu of removal. This is an important point. You can apply for voluntary departure either during or after your removal proceeding. If you are awarded this, the removal proceeding stops (i.e, they won't come and get you) and you have either up to 120 or 60 days (depending on whether it was during or after the removal proceeding ended) to leave the country. The advantage of this is that you can come back to the US and you don't cost the government any problems in coming to get you and toss you out on your ear.

The Case Continues

You wonder sometimes if all of this is a joke, but I am a lawyer and lawyers can't joke. So, let's continue. After Dada was granted a request for voluntary departure, he decided to appeal his removal to the Board of Immigration Appeals ("BIA"). This stops the clock on departure. So, the BIA got into the act and decided on Nov. 4, 2005 that Samson Dada had to go. The BIA decided that he had exactly 30 days to depart voluntarily. If he didn't depart in those 30 days, he would be ineligible for status adjustments for 10 years--and face lots of fines and other inconveniences.

Sounds like things are just about over, don't they? Well, Samson was a strong guy, not only in the Bible but also in this case. On day 28 after this order, he filed a motion with the BIA to "reopen" his case and to "withdraw" his request for voluntary departure. The reason he did the latter was that if he stayed over his 30 day period (i.e., past December 5, 2006), he would lose the benefit of the voluntary departure and tons of bad stuff would happen to him. But by asking the BIA to "reopen" his case, he would have 90 days after the Nov. 4 decision to do so. So, he stayed in the country. On Feb. 8, 2006 the BIA denied his motion to reopen the case. Now he really has to go, right? No, he appealed to the Court of Appeals of the Fifth Circuit, which couldn't wait to get the case off of its docket, denying him relief in a one-page unpublished decision on Nov. 28, 2006.

All is not lost. So, he appealed to the US Supreme Court on Feb. 26, 2007--the final day he could do so and, guess what, the Supreme Court decided to hear his case. By the time the Court renders a decision, probably in Spring 2008, it will be almost 10 years to the day that Samson Dada was supposed to have left the country. Now can you understand what immigration reform is up against?

The Legal Issue in Conclusion

Well, now you have the facts. The legal issue is pretty simple to state. Once he accepts a voluntary departure under sec. 1229c(a)(1) and (b)(1) of the statute, which in this case gave him 30 days to leave, and then if he tries to reopen his removal case, which he has 90 days to do under sec. 1229a(c)(7) of the law, does the 30-day clock stop running so that the reopening of his case can happen? Or is it the case that once you accept voluntary departure, you basically have given up your right to "reopen"? Dada wants it both ways--to have a voluntary departure but then to give up that departure and get 90 days to reopen the case. I am sure that if his case is turned down, that he would want another voluntary departure.

But the issue is there because the statute isn't precisely clear on how these two provisions--voluntary departure and reopening a removal proceeding--relate. The Court will have to decide that one. Meanwhile, however, I think Samson ought to get the strong man award of 2007/08 for being able to turn 4 1/2 months to 10 years. What do you think?

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