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No. 06-1181

 

In the Supreme Court of the United States

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

SUPPLEMENTAL REPLY BRIEF
FOR THE RESPONDENT

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the 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

SUPPLEMENTAL REPLY BRIEF
FOR THE RESPONDENT

1. Petitioner argues that an alien who has been granted voluntary departure by the Board of Immigration Appeals should be permitted to withdraw from that arrangement through his own unilateral action. Supp. Br. 6 (advocating a rule under which an alien's "withdrawal of the voluntary departure request * * * would be effective immediately upon filing"). Petitioner's premise is that this Court must recognize some atextual exception to the express statutory and regulatory restrictions on voluntary departure in order to "reconcile" and "give content to both the voluntary de parture and motion to reopen provisions." Id. at 3, 4. That premise is incorrect.

Like any alien whose arguments for permitting him to remain in the United States have been rejected by the BIA, an alien whose final order provides for voluntary departure in lieu of removal may generally "file one motion to re open." 8 U.S.C. 1229a(c)(7)(A) (Supp. V 2005). And, like an alien who has been ordered removed, an alien who has been granted voluntary departure may not obtain adjudication of such a motion if he departs or is removed from the United States. 8 C.F.R. 1003.2(d).1 The fact that such an alien is subject to certain penalties if he fails to depart within the specified time means that the decision to seek voluntary departure has real consequences. It does not, however, mean that the alien has "forfeit[ed]" the ability to pursue a motion to reopen. Pet. Supp. Br. 5.

Congress has provided that an alien who overstays a period of voluntary departure generally becomes "ineligi ble, for a period of 10 years, to receive" several specified forms of discretionary relief, including cancellation of re moval, adjustment of status, and a future grant of voluntary departure. 8 U.S.C. 1229c(d)(1)(B) (Supp. V 2005); see Gov't Br. 6-7 (describing other consequences). But such an alien remains eligible for other forms of protection from removal-including asylum,2 withholding of removal,3 and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish ment, adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong, 2d Sess. (1988), 1465 U.N.T.S. 85-and he may con tinue to pursue such claims through a motion to reopen even if he overstays his voluntary departure period. Under this regime, an alien's failure to comply with the terms of an order granting voluntary departure-itself "a discre tionary form of relief," Pet. Supp. Br. 1-renders the alien ineligible to remain in the United States as a matter of grace based on his personal circumstances. In contrast, even an alien who overstays does not lose the ability to seek protection from removal if subsequent developments out side the United States have made it unsafe for him to de part.

Thus, under the INA and the Attorney General's cur rent regulations, a request for voluntary departure re flected in the BIA's final order effectively concludes the removal proceedings insofar as possible discretionary relief such as cancellation of removal and adjustment of status are concerned. An alien who wishes to keep open the op tion of pursuing such relief should not request voluntary departure. While an alien granted voluntary departure by the BIA is not categorically barred from subsequently mov ing to reopen to seek such relief, the combined effect of the INA, the regulations, and the time it takes to grant reopen ing may effectively preclude such relief. But there is noth ing irrational about requiring an alien to choose between requesting voluntary departure and continuing to pursue such relief after entry of a final order, or about providing that reopening motions may still lead to other forms of re lief.

The INA does not require the Attorney General to ei ther automatically toll the voluntary departure period or automatically terminate voluntary departure if the alien requests reopening. And petitioner did not diligently pur sue relief on his own behalf: he failed to seek a remand on the basis of supposed changed circumstances while his ap peal was pending before the BIA, waited until the end of the departure period to seek reopening and request with drawal of voluntary departure, failed to request expedited consideration of that motion, and failed to request an exten sion of the departure period to allow the BIA time to act. Gov't Br. 12.

In short, petitioner is not seeking to "safeguard access to motions to reopen for aliens granted voluntary depar ture." Supp. Br. 6. Rather, he is seeking to leverage a pro cedural right to file a motion to reopen into an exemption from a substantive restriction that Congress has imposed on the Board's ability to grant certain (but not all) forms of discretionary relief.

2. Petitioner has failed to identify any language in the INA, the Attorney General's current regulations, or the BIA's order in this case that supports his contention that he was entitled to withdraw unilaterally from his voluntary departure agreement. Nor is such a result supported by any precedential decision of the BIA.

Petitioner's reliance on the Board's unpublished, single- member decision in Davis, B.I.A. No. A76-832-166 (Mar. 3, 2006) (per curiam), is misplaced. Only three-member or en banc Board decisions serve as precedents for future cases, 8 C.F.R. 1003.1(g), and only if they are designated for pub lication, Board of Immigration Appeals Practice Manual § 1.4(d)(ii), at 10 (July 30, 2004). The BIA resolved 8841 motions to reopen in 2006, 10,995 in 2005, and 10,121 in 2004.4 A one-paragraph decision that provides neither ex planation nor citation for its one-sentence statement that it would not "reinstate" a voluntary departure period that had never been vacated in the first place, and that had, at least according to its terms, already expired by the time the BIA ruled, cannot possibly be said to reflect official Board policy or a widespread practice of granting such requests. 8 C.F.R. 1240.26(f) (providing that an IJ or the BIA "may reinstate voluntary departure in a removal proceeding that has been reopened," but only "if reopening was granted prior to the expiration of the original period of voluntary departure").

Any apparent conflict between the BIA's decisions in Davis and this case would warrant, at most, a remand to the agency for further explanation. But given that Davis and petitioner were represented by the same attorney be fore the BIA and the Fifth Circuit; that, when the BIA's decision in Davis was issued, petitioner still had seven days in which to file a motion to reconsider the denial of his mo tion to reopen, Pet. App. 3; 8 U.S.C. 1229a(c)(6)(B) (Supp. V 2005); and that petitioner failed to mention Davis in his brief to the court of appeals or his certiorari petition, peti tioner should be deemed to have forfeited any claim to such a remand.

The BIA's decision in Diaz-Ruacho, 24 I. & N. Dec. 47 (2006) (see Pet. Supp. Br 10-11), and the regulation upon which it relied, actually undermine petitioner's argument that an alien who has been granted voluntary departure by the Board may unilaterally withdraw from that arrange ment on the eve of his departure date.5 The INA provides that an alien who is granted voluntary departure by an IJ at the conclusion of removal proceedings "shall be required to post a voluntary departure bond." 8 U.S.C. 1229c(b)(3). The Attorney General's regulations currently provide that the bond "shall be posted * * * within 5 business days of the immigration judge's order granting voluntary depar ture," and that, if the bond is not so posted, "the voluntary departure order shall vacate automatically and the alter nate order of removal will take effect on the following day." 8 C.F.R. 1240.26(c)(3). In Diaz-Ruacho, the BIA concluded that because "[t]he posting of a voluntary departure bond is a statutory condition precedent to ensure that an alien departs within the time afforded," an IJ's grant of volun tary departure "remains inchoate until the posting of a bond within 5 days of the order." 24 I. & N. Dec. at 50 (quoting A-M-, 23 I. & N. Dec. 737, 744 n.8 (B.I.A. 2005)). As a result, the BIA further concluded that an alien who fails to post the required bond is not subject to the statu tory penalties prescribed for aliens who fail to depart within the time specified in a final order granting voluntary departure. Id. at 51.6

This case differs from Diaz-Ruacho in every material respect. Filing a motion to reopen (unlike posting a bond) is not a pre-condition to obtaining voluntary departure, and there is no current regulation that provides that an alien's act of filing a motion to reopen automatically terminates a previous grant of voluntary departure. In addition, because DHS may detain an alien who is granted voluntary depar ture until he posts a bond, 8 C.F.R. 1240.26(c)(3), and be cause the requirement to post a bond is not suspended by the alien's filing of an appeal to the BIA, see A-M-, 23 I. & N. Dec. at 744 n.8, an alien who does not intend to live up to his voluntary departure bargain cannot manipulate the bond requirement in order to place himself in a better posi tion than an alien who was never granted voluntary depar ture in the first place.7

3. Finally, petitioner suggests (Supp. Br. 6 n.4) that this Court "could also construe the statute such that the filing of a motion to reopen by an alien granted voluntary depar ture would trigger withdrawal from voluntary departure (thus also reaching aliens who did not request withdrawal expressly)." But nothing in the INA or the current regula tions so provides, and aliens who have been granted volun tary departure currently file motions to reopen without any notice of such an automatic termination rule. Cf. 72 Fed. Reg. 67,686 (2007) (proposed 8 C.F.R. 1240.26(b)(3)(iii)) (providing that the IJ "shall advise the alien of" the conse quences of filing "a post-decision motion to reopen or recon sider"). For these and other reasons, any alteration of the current voluntary departure regime should be made pro spectively only, and only after full consideration by the At torney General. Gov't Supp. Br. 10.

 

* * * * *

For the foregoing reasons and those stated in the re spondent's merits and supplemental briefs, the judgment of the court of appeals should be affirmed.

Respectfully submitted.

 

PAUL D. CLEMENT
Solicitor General

 

 

FEBRUARY 2008

1 That regulation, which petitioner has not challenged (1/7/08 Tr. 9; Gov't Br. 36-37 n.16)-and the parallel regulation providing that an appeal of an immigration judge's decision to the BIA shall be dismissed if the alien leaves the country, 8 C.F.R. 1003.4-have been integral features of the regulations since immediately after the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq, was passed in 1952. See 17 Fed. Reg. 11,475, 11,476 (1952). Their premise is that because the whole purpose of the administrative proceedings is to effect the alien's removal from the United States, those proceedings (including any appeals or ancillary matters) are properly terminated if the alien departs.

2 8 U.S.C. 1158 (2000 & Supp. V 2005).

3 8 U.S.C. 1231(b)(3) (2000 & Supp. V 2005).

4 Executive Office for Immigration Review, U.S. Dep't of Justice, FY 2006 Statistical Year Book T2 (2007) <http:www.usdoj.gov/eoir/ statspub/fy06syb.pdf>.

5 The other regulations petitioner cites (Supp. Br. 10 n.14) involve grants of voluntary departure made before the conclusion of removal proceedings. 8 C.F.R. 240.25(f) (pre-removal proceeding grants by the Department of Homeland Security); 8 C.F.R. 1240.26(b)(3)(ii) (grants by IJs before the conclusion of removal proceedings).

6 The Attorney General's proposed regulations would abrogate Diaz- Ruacho and "make clear that the failure to post a voluntary departure bond does not exempt the alien[] from * * * the penalties for failure to depart voluntarily." 72 Fed. Reg. 67,684 (2007).

7 Petitioner asserts (Supp. Br. 7) that permitting unilateral with drawal "would not invite any abuse." This case demonstrates other wise. If petitioner's unilateral assertion that he wished to withdraw from his agreement to depart voluntarily had the effect of automatically eliminating the grant of voluntary departure contained in the Board's final order, it would mean that petitioner was able to secure a 28-day deferral of the entry of a final order of removal without the ex ante or ex post assent of the BIA.