Dada v. Mukasey

554 U.S. 1 (2008)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P, a native and citizen of Nigeria, came to the United States in April 1998 on a temporary nonimmigrant visa. He overstayed it. In 1999, P alleges, he married an American citizen. P's wife filed an I-130 Petition for Alien Relative on his behalf. The necessary documentary evidence was not provided and the petition was denied in February 2003. In 2004, DHS (D) charged P with being removable for overstaying his visa. P's wife filed a second I-130 petition. The Immigration Judge (IJ) denied P's request for a continuance pending adjudication of the newly filed I-130 petition and noted that those petitions take an average of about three years to process. The IJ found the petitioner to be removable but granted the request for voluntary departure under § 1229c(b) (2000 ed.). The BIA affirmed. It ordered P to depart within 30 days or suffer statutory penalties, including a civil fine of not less than $1,000 and not more than $5,000 and ineligibility for relief under §§ 240A, 240B, 245, 248, and 249 of the INA for a period of 10 years. On December 2, 2005, two days before the expiration of the 30-day period, P sought to withdraw his request for voluntary departure. P also filed a motion before BIA to reopen removal proceedings under 8 U.S.C. § 1229a(c)(7) (2000 ed., Supp. V). P contends that his motion recited new and material evidence demonstrating a bona fide marriage and that his case should be continued until the second I-130 petition was resolved. On February 8, 2006, more than two months after the voluntary departure period expired, the BIA denied the motion to reopen on the grounds that P had overstayed his voluntary departure period. Under § 240B(d) the BIA reasoned, that an alien who has been granted voluntary departure but fails to depart in a timely fashion is statutorily barred from applying for and receiving certain forms of discretionary relief, including adjustment of status. The Court of Appeals for the Fifth Circuit affirmed. It ruled that BIA's reading of the applicable statutes as rendering petitioner ineligible for relief was reasonable. There is no automatic tolling of the voluntary departure period. Four other Courts of Appeals have reached the opposite conclusion. The Supreme Court granted certiorari. After oral argument, on January 10, 2008, P's second I-130 application was denied by the IJ on the ground that his marriage was a sham, contracted solely to obtain immigration benefits.