Supplemental Brief — Dada v. Mukasey

No. 06-1181

IN THE

Suprene Court of the United States

SAMSON TAIWO «. ADA,

Petitioner,

MICHAEL B. MUKASEY,

ATTORNEY GENERAL,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

SUPPLEMENTAL BRIEF FOR PETITIONER

SETH P. WAXMAN

RACHEL Z. STUTZ

WILMER CUTLER PICKERING

HALE AND DoRR LLP

1875 Pennsylvania Avenue, NW

Washington, DC 20906

(202) 663-6000

RAED GONZALEZ

QUAN, BURDETTE & PEREZ, PC.

5177 Richmond Avenue

Suite S00

Houston, TX 77056

(713) 625-9225

CHRISTOPHER J. MEADE

Counsel of Record

ANNE K. SMALL

ELOISE PASACHOFF

JODIE MORSE

WILMER CUTLER PICKERING

HALE AND DoRR LLP

399 Park Avenue

New York, NY 10022

(212) 230-800

MEGAN BARBERO

SYDENHAM B. ALEXANDER III

WILMER CUTLER PICKERING

HALE AND DORR LLP

H0 State Street

Boston, MA 02109

(617) 526-6000

TABLE OF CONTENTS

Page

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STATUTORY AND REGULATORY BACK-

EEO ee ean ONTOS aE CS 1

TE ciiieteiahcndiiectaieiniihiestirctlahaitai endeitinteiaitnlteiatiigsigce ace 3

I. PERMITTING WITHDRAWAL PROPERLY REC-

ONCILES THE TWO STATUTORY PROVISIONS ...........00. 4

Il. THE DEPARTMENT OF JUSTICE’S PROPOSED

RULE AND CURRENT AGENCY REGULA-

TIONS AND PRACTICE OFFER FURTHER

SUPPORT FOR PERMITTING WITHDRAWAL ........ece0000 7

8 RT OT en aN BENE 11

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ii

TABLE OF AUTHORITIES

CASES

Page(s)

Chedad v. Gonzales, 497 F.3d 57 (Ast Cir. 2007)............. 2

Matter of A-M-, 23 1. & N. Dec. 737 (BIA 2005) ............. 2

Matter of Davis, No. A76-832-166 (BIA Oct. 5,

TESTU sinissinienisbnsasciiociinicigiigiainbigaitasdinipeatmpebnbiinisuighidencianl 9

Matter of Davis, No. A76-832-166 (BIA Mar. 3,

UTED cciheevinisviccmeiisiiesisncaneeiaiibinptlaeciibaibsitaipaaadaaiauitiial 8, 9, 10

Matter of Diaz-Ruacho, 24 1. & N. Dec. 47 (BIA

SEUITTE scsnieinsceenptniclestiintailuisienjeniiinpniadensinliaiiaainiaints 2,10, 11

Matter of Isher, 20 1. & N. Dee. 676 (BIA 1993).............. 9

Matter of Velarde, 23 1. & N. Dee. 253 (BIA

SP OUD ssteninsisicpoesitndsitecsietsneyieciiciiaiiaiitiiadiddbbiiiaaiiabmesdinaiibinniliitil 9

S.D. Warren Co. v. Maine Board of Environ-

mental Protection, 126 S. Ct. 1843 (2006).............06. 6

Wisconsin Department of Health & Family

Services v. Blumer, 534 U.S. 473 (2002)........cccccceee0 6

STATUTES AND REGULATIONS

Immigration and Nationality Act, 8 U.S.C.

§§ 1101, et seq.

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8 C.F.R.

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REESE Soest eee MONEE EI > 2

62 Fed. Reg. 10,312 (Mar. 6, 1997) ............scccccssscssssesecescens 5

72 Fed. Reg. 67,674 (Nov. 30, 2007) ....... cee eeceeeees passim

OTHER AUTHORITIES

Gordon, Charles, et al., Immigration Law and

PN re iiccincinentisineainiieiniininatateniiinittiiiaiiaiaiiugilinadeiliai 3

Ae & ° Re siehiietietiaibinisandinnaeichaniincaulaiiaticiiaiaiaa 8

This Court ordered briefing on the question

“(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 volun-

tary departure prior to the expiration of the departure

period.” Permitting withdrawal offers an alternative to

tolling that properly reconciles the statutory provi-

sions. That the statute permits such a construction is

demonstrated by the Department of Justice’s own pro-

posed rule, which would permit an alien to “withdraw

from the arrangement into which he or she effectively

entered ... at the time of seeking and accepting volun-

tary departure” and pursue a motion to reopen. 72

Fed. Reg. 67,674, 67,679 (Nov. 30, 2007).

Accordingly, if the Court does not adopt a tolling

construction, it should interpret the statute to permit

Petitioner to withdraw his voluntary departure re-

quest, which he expressly sought to do, so that he can

pursue his motion to reopen.

STATUTORY AND REGULATORY BACKGROUND

1. This case concerns two provisions of the INA,

one governing voluntary departure, and the other ad-

dressing motions to reopen. Voluntary departure is a

discretionary form of relief available to aliens who meet

certain criteria. 8 U.S.C. § 1229¢(a)(1), (b)(1). An alien

who contests his removal—seeking, for example, ad-

justment of status, cancellation of removal, or asylum—

remains eligible for voluntary departure. Id.

§ 1229¢(b)(1). If an immigration judge denies relief

from removal, the immigration judge may then grant

the alien voluntary departure, setting a period of up to

60 days for the alien to depart the country. /d.

§ 1229¢(b\(2). An alien granted voluntary departure is

not subject to a final order of removal; rather, the im-

migration judge enters an “alternate order olf] re-

2

moval,” 8 C.F.R. § 1240.26(d), which takes effect if the

alien does not depart during the voluntary departure

period, id. § 1241.1(f).

Under the statute and regulations, an alien granted

voluntary departure does not waive rights to seek fur-

ther review. The alien may file an appeal with the

Board of Immigration Appeals, challenging the denial

of any underlying relief, such as adjustment of status or

cancellation of removal. The alien’s voluntary depar-

ture period is “toll[ed]’ during this administrative ap-

peal. Matter of A-M-, 23 1. & N. Dec. 737, 743 (BIA

2005). Once an alien receives a final decision from the

BIA, he may appeal to the court of appeals by filing a

petition for review. 8 U.S.C. § 1252(a). In most cir-

cuits, the court can stay the voluntary departure period

pending this review. See Reply Br. 14 n.9; Gov’t Br. 35-

36 & n.15.

2. The INA provides that all aliens, including

those granted voluntary departure, may also file one

motion to reopen, based on “new facts,” within 90 days

of the agency’s final decision. 8 U.S.C. § 1229a(¢)(7)(B),

(Ci). These new facts can relate, for example, to the

health of an alien’s family member or a change in the

immigration status of a spouse. See id. § 1229b(b)\(1)(D)

(cancellation of removal available when removal would

cause “exceptional and extremely unusual hardship” to

a United States citizen or lawful permanent resident

who is the spouse, parent, or child of the alien); id.

$§ 1151(bX2 AMD), 1154(a), 1255(a) (adjustment of

status available when a spouse naturalizes to become a

United States citizen); see also, e.g., Matter of Diaz-

Ruacho, 24 1. & N. Dee. 47, 48, 51 (BIA 2006) (alien’s

parents diagnosed with serious health problems; motion

to reopen granted); Chedad v. Gonzales, 497 F.3d 57,

59-60 (1st Cir. 2007) (alien's spouse naturalized to be-

3

come a United States citizen; motion to reopen initially

granted).

Under the agency’s regulations, motions to reopen

can only be resolved if the alien is in the country; if an

alien departs, then reopening is unavailable. 8 C.F.R.

§ 1003.2(d). Nor, in many cases, can the alien simply

leave the country and pursue the underlying relief from

abroad; for many aliens (including Petitioner), the alien

will be subject to “unlawful presence” bars upon depar-

ture. These bars prevent readmission for up to 10

years and are triggered by any departure from the

country, including voluntary departure. See 8 U.S.C.

§ 1182(aX9 BYiDUD; see also 4 Gordon, et al., Immigra-

tion Law and Procedure §§ 51.01(8), 51.03(8) (2007).

Although those aliens subject to a final removal or-

der may seek an administrative stay, thereby permit-

ting adjudication of the motion to reopen while the alien

remains in the country, see 8 C.F.R. §§ 1003.2(f), 241.6,

these stays are not available to voluntary departure

recipients, see Reply Br. 13-14.

ARGUMENT

The question in this case is how to reconcile the

voluntary departure and motion to reopen provisions.

This Court has requested supplemental briefing on one

possible approach: permit an alien who has been

granted voluntary departure and has filed a timely mo-

tion to reopen to withdraw the request for voluntary

departure prior to the expiration of the voluntary de-

' The prevalence of unlawful presence bars is apparent from

the cases in the circuit split at issue here; in six of the seven cases,

it appears that the alien's departure would have triggered a LO-

vear unlawful presence bar. See American Immigration Law

Foundation Amicus Br. s & 1.6.

4

parture period. Withdrawal is consistent with the stat-

ute—giving content to both the voluntary departure

and motion to reopen provisions—and permissible un-

der the agency’s current and proposed regulations. If

the Court does not adopt a tolling construction, it

should permit an alien filing a timely motion to reopen

to withdraw his request for voluntary departure.

I. PERMITTING WITHDRAWAL PROPERLY RECONCILES

THE TWO STATUTORY PROVISIONS

Permitting withdrawal, like tolling, avoids the un-

workable trap that the Government’s reading would

impose on aliens and, in turn, harmonizes the statutory

provisions.

1. In the current litigation, the Government has

rejected statutory constructions that give content to

both the voluntary departure and motion to reopen

provisions. Instead, the Government would place an

alien faced with changed circumstances in a trap, leav-

ing the availability of a motion to reopen to chance.

The alien must either (1) depart the country within the

voluntary departure period (thereby losing the ability

to pursue reopening and, in many cases, rendering him

subject to statutory bars on readmission for up to 10

years) or (2) remain in the country awaiting a decision

on the motion to reopen, risking staying past the volun-

tary departure period, which will not only render the

alien ineligible for the very relief sought, but also sub-

ject him to additional statutory penalties, 8 U.S.C.

§$ 1229¢e(d)(1). In this lose-lose scenario, because the

alien had obtained voluntary departure at an earlier

point in time, he has effectively lost his ability to pur-

sue a motion to reopen based on changed circum-

stances.

The Government rationalizes this result by arguing

that it is part of a quid pro quo that the alien agreed to

5

when he was granted voluntary departure. Yet the

Government agrees that the alien can file a motion to

reopen and, if the agency happens to act quickly

enough, the alien can receive an adjudication of that

motion; thus, the Government agrees that adjudication

of a motion to reopen has not been relinquished. More-

over, the Department’s proposed rule necessarily re-

jects the notion that Congress intended aliens to forfeit

motions to reopen as part of a voluntary departure bar-

gain; the proposed rule “is intended to allow an oppor-

tunity for aliens who have been granted voluntary de-

parture to be able to pursue administrative motions

[including motions to reopen] without risking the impo-

sition of the voluntary departure penalties.” 72 Fed.

Reg. 67,674, 67,679 (Nov. 30, 2007).

Given that the Government’s trap, which effec-

tively eliminates motions to reopen for these aliens, is

not required by a statutory quid pro quo, it makes little

sense to interpret the statute to yield this arbitrary re-

sult.’ The tolling construction that Petitioner favors

avoids this trap and, in so doing, properly reconciles the

statutory provisions. Permitting withdrawal provides

a similarly viable interpretation of the statute.

2. Nearly all of the arguments that Petitioner

presented in support of a tolling construction apply

equally to an interpretation that permits withdrawal.

* Indeed, the Government appears to have ended up in its

current litigation position as a result of agency inaction. In 1997,

the Department suggested tolling as a possible solution. 62 Fed.

Reg. 10.312, 10325-10526 (Mar. 6, 1997). Now, approximately ten

vears later, the Department has proposed prospective regulations

that permit withdrawal—thereby preserving motions to reopen

for these who have been granted voluntary departure. 72 Fed.

leg. at O7,67.

6

See Pet. Br. Parts I.A-C, II]; Reply Br. Part I. When

the statute is interpreted as a whole, it must be read to

safeguard access to motions to reopen for aliens

granted voluntary departure. Like tolling, withdrawal

does so, while also respecting the limits on motions to

reopen and voluntary departure set by Congress.

Under a withdrawal construction, the alien filing a

motion to reopen would—like Petitioner in this case’-—

seek withdrawal of the voluntary departure request,’

which would be effective immediately upon filing. If

withdrawal were not effective immediately (but,

rather, needed to be acted upon by the agency), then

the same problems would exist as under the Govern-

ment’s current construction—withdrawal, and motions

to reopen in turn, would be dependent on whether the

agency happened to act in time.”

* Petitioner requested this relief before the BIA and raised

the issue at every stage of the proceeding. Reply Br. 20 & n.14.

* The Court could also construe the statute such that the fil-

ing of a motion to reopen by an alien granted voluntary departure

would trigger withdrawal frem voluntary departure (thus also

reaching aliens who did not request withdrawal expressly). The

Department’s proposed rule takes this approach. 72 Fed. Reg. at

67,679, see also Part IL.1 swfra. The Court may consider the De-

partment’s prospective solution and interpret the statute consis-

tent with it. Cf. SD. Warren Co. v. Mame Bd. of Evet!. Prot., 126

S. Ct. 1845, 1848-1849 (2006) (confirming understanding of dis-

puted statutory term based on agencies’ interpretation even

though the interpretation was not “formally settled”); Wisconsin»

Th pt of Health & Faw ly Nerrs. V. Blumer, 534 US. ATS, 496-497

(2002) (adopting interpretation that was consistent with agency's

“recently proposed rule”).

* The Department agrees that automatic withdrawal—

effective without an agency decision—is consistent with the stat-

ute. See 72 Fed. Reg. at 67,679, 67,682, 67,685.

7

Upon withdrawal, the alien would give up the bene-

fits of voluntary departure, but be able to pursue a mo-

tion to reopen in light of changed circumstances. The

alien would be in the same position as other aliens who

were not granted voluntary departure: the alien would

be subject to a final order of removal, cf. 8 C.F.R.

§ 1240.26(d), but, like other aliens subject to a final re-

moval order, could seek an administrative stay of re-

moval, see id. $§ 1003.2(f), 241.6.°

Permitting withdrawal thus avoids the trap created

by the Government’s reading by safeguarding motions

to reopen for voluntary departure recipients. More-

over, because the aliens seeking motions to reopen are

placed in the same position as other aliens who were

not granted voluntary departure, withdrawal retains

Congress’s limits on the period in which an alien may

depart the country voluntarily and would not invite any

abuse.

II. THE DEPARTMENT OF JUSTICE’S PROPOSED RULE AND

CURRENT AGENCY REGULATIONS AND PRACTICE OF-

FER FURTHER SUPPORT FOR PERMITTING WITH-

DRAWAL

1. The Department agrees that permitting an

alien to withdraw his request for voluntary departure,

so as to permit him to pursue a motion to reopen, is

consistent with the statute. In fact, the Department

hax proposed such a solution prospectively.

According to the Department, “[t]he voluntary de-

parture statute does not unambiguously provide that

permission to depart voluntarily is irrevocable once

granted.” See 72 Fed. Reg. at 67,679. Rather, the stat-

"Such administrative stays are not available during the vol-

untary departure period. Seo Reply Br. 13-14.

+—__

8

ute permits a construction whereby the filing of a mo-

tion to reopen causes the voluntary departure grant to

automatically terminate. See id. Under the Depart-

ment’s proposal, “(t]he alien will be free to forgo volun-

tary departure and instead to elect to challenge the fi-

nal order through a motion to reopen or reconsider.”

Id.

Or, put another way, these rules would allow

the alien an opportunity to withdraw from the

arrangement into which he or she effectively

entered ... at the time of seeking and accepting

voluntary departure[.]

Id. Although not binding in the present case, the pro-

posed rule demonstrates that the Department agrees

that withdrawal (that is effective immediately) is con-

sistent with the statute.

2. Withdrawal from voluntary departure in order

to pursue a motion to reopen is also consistent with the

current regulatory framework. The Government cor-

rectly observed that there are no regulations prohibit-

ing an alien from withdrawing a voluntary departure

request so as to pursue a motion to reopen. See Oral

Argument Tr. 32.

The agency, moreover, has permitted withdrawal

under the current statutory and regulatory regime.

See Matter of Davis, No. A76-832-166 (BIA Mar. 3,

2006) (unpublished) (“Davis 2006 Order”).’ Davis pre-

sents a strikingly similar factual scenario to the present

case—except that Davis was permitted to withdraw the

Pursuant to Supreme Court Rule 32.5, counsel for Petitioner

has sought permission to lodge the cited materials relating to Dav-

is With the Clerk of the Court.

9

voluntary departure request, and obtain an adjudica-

tion of the motion to reopen, but Petitioner was not.

In Davis, as in the present case, the alien, who was

married to a U.S. citizen, filed a motion to reopen, un-

der Matter of Velarde, 23 I. & N. Dec. 253 (BIA 2002),

and Matter of Isber, 20 I. & N. Dec. 676 (BIA 1993), and

submitted evidence that the marriage was bona fide.*

As in this case, Davis filed the motion to reopen with

just a few days left in the voluntary departure period:

Davis filed on Friday, December 2, 2005, and Davis’s

voluntary departure period was to expire just two days

later (on Sunday, December 4).’ When filing the mo-

tion—and using the identical language that Petitioner

used in the present case—Davis sought to withdraw

the voluntary departure request and, instead, be sub-

ject to a final order of removal.'°

The BIA acted on Davis’s motion approximately

three months later, which, as in Petitioner’s case, was

after the voluntary departure period had expired.

Davis 2006 Order. But unlike in the present case—and

despite the parallel fact patterns and that the respec-

® Compare Matter of Davis, Motion to Reopen/Reconsider

and to Withdraw Request for Voluntary Departure and Request

for Stay of Deportation 3-s (BIA Dec. 1, 2005) “Davis Mot.”) with

C.A. App. 11-14.

” See Matter of Davis, No. A76-882-166 (BLA Oct. 5, 2005) (un-

published); Matter of Davis, No. A76-s32-166, Mot. Filing Receipt

(Dec. 5, 24405).

, o , P

Compare Davis Mot. 7 (|The respondent withdraws his

request for voluntary departure and accepts an order of deporta-

tion.”) wth CLA. App. 18 (sume).

10

tive motions were filed on the same day''—the Board

permitted Davis to withdraw the request for voluntary

departure. Jd.'* As a result, Davis was not subject to

the penalties for overstaying the voluntary departure

period, and the Board adjudicated the motion to reopen

on the merits."

3. The agency’s regulations and precedent also

permit termination of voluntary departure in other con-

texts, offering further support for withdrawal. For ex-

ample, if an alien fails to post the required bond within

five business days, then the voluntary departure order

will “vacate automatically” and the alien will be subject

to a final order of removal. 8 C.F.R. § 1240.26(¢)(3)."*

As a result, an alien who has failed to post the required

bond is not subject to penalties for overstaying and,

therefore, may obtain an adjudication of his motion to

reopen. Matter of Diaz-Ruacho, 24 I. & N. Dee. 47, 51

(BIA 2006).

'' Both motions to reopen are dated December 1, 2005 and

were filed with the BIA on December 2, 2005. Compare Davis

Mot. 12; Davis Mot. Filing Receipt with C.A. App. 3, 21.

'* The Board stated that, in light of Davis's request to with-

draw, it would not “reinstate voluntary departure” but would in-

stead “enter an order of removal.” Davis 2006 Order.

13 , os me

The Board denied Davis's motion to reopen, undermining

uny argument that the withdrawal was based on the merits of the

underlying motion. See Darrs 2006 Order.

. — ee

Similarly, an alien's voluntary departure order will “vacate

automatically” if the alien fails to provide the Government with his

passport or other required travel documentation. & C.FLR.

§ 1240.26.) 00D see also id. § 240.250) (voluntary departure “re-

volcable| without advance notice” if the request “should not have

been granted”).

11

In Diaz-Ruacho, the alien was granted voluntary

departure and later filed a motion to reopen. Notwith-

standing the fact that the alien filed the motion to re-

open almost one month after the end of the voluntary

departure period, the Board granted the motion. The

BIA held that because the alien had failed to post the

required bond, he was not subject to penalties for over-

staying the voluntary departure period. These penal-

ties “did not attach” because the voluntary departure

order had vacated once the alien failed to post bond. 24

I. & N. Dec. at 51. Thus, under the current regulations,

the voluntary departure grant can automatically termi-

nate in certain circumstances.

* * *

The statutory provisions, the Department’s pro-

posed regulations, and the agency’s current regulations

and practice all support a construction of the statute

that permits an alien granted voluntary departure to

withdraw a request for voluntary departure in order to

pursue a timely motion to reopen. Thus, if the Court

declines to interpret the statute to permit tolling, it

should construe the statute so as to permit Petitioner

to withdraw his request for voluntary departure.

CONCLUSION

The judgment of the Fifth Circuit should be re-

versed.

* The Department's proposed rule would alter this result

prospectively, 72 Fed. Reg. at 67,694, but would nonetheless per-

mit voluntary departure recipients to pursue motions to reopen,

ad, at OT.H79.

SETH P. WAXMAN

RACHEL Z. STUTZ

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue, NW

Washington, DC 20006

(202) 663-6000

RAED GONZALEZ

QUAN, BURDETTE & PEREZ, P.C.

5177 Richmond Avenue

Suite X00

Houston, TX 77056

(713) 625-9225

JANUARY 2008

Respectfully submitted.

CHRISTOPHER J. MEADE

Counsel of Record

ANNE K. SMALL

ELOISE PASACHOFF

JODIE MORSE

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

MEGAN BARBERO

SYDENHAM B. ALEXANDER III

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000