U.S Supreme Court
U.S Supreme Court


Today, the U.S. Supreme Court ruled in a 5-4 decision that deportable illegal aliens can back out of their agreement to voluntarily depart the country and get another opportunity to make the case to immigration officials that they should be allowed to adjust their status.

The case (Dada v. Mukasey) involved a visa overstayer whose case to remain in the country had been denied. Existing law allows individuals who are judged deportable to continue to fight deportation or to voluntarily depart within 60 days. This voluntary departure deal, which Dada agreed to, allows the person to: avoid detention pending involuntary deportation; select his own country of destination; leave according to his own schedule (within the prescribed period); and avoid restrictions on readmission that accompany involuntary departure.

Two days before the deadline for his promised voluntary departure, Dada filed a motion with the Board of Immigration Appeals seeking to back out of the deal. The Board denied that motion, stating that “an alien who fails to depart following a grant of voluntary departure . . . is statutorily barred from applying for certain forms of discretionary relief.”

Today’s Court ruling overturned the Board decision and converted the alien’s statutorily required promise to depart voluntarily into an “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.”

Justice Scalia in his dissenting opinion chastised the majority for constructing options not allowed in current law. He stated “In the final analysis, the Court’s entire approach to interpreting the statutory scheme can be summed up in this sentence from its opinion: ‘Allowing aliens to with-draw from their voluntary departure agreements establishes a greater probability that their motions to reopen will be considered.’ That is true enough. What does not appear from the Court’s opinion, however, is the source of the Court’s authority to increase that probability in flat contradiction to the text of the statute. Just as the Government can (absent some other statutory restriction) relieve criminal defendants of their plea agreements for one reason or another, the Government may well be able to let aliens who have agreed to depart the country voluntarily repudiate their agreements. This Court lacks such authority, and nothing in the statute remotely dictates the result that today’s judgment decrees.”

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Updated: Wed, Jul 5th 2017 @ 2:07pm EDT