Supreme Court Ruling Makes it Easier for Nonimmigrants to Appeal Green Card Application Decisions
A recent Supreme Court decision means a small but important detail about the order of voluntary departure has been clarified, and all those in the United States under a temporary, nonimmigrant visa or those expecting to apply for or obtain one should understand the ruling and how it might affect their future travel or stay in the United States.
The court case, Dada v. Mukasey, pitted Nigerian national Samsan Dada versus the United States attorney general over the question of Dada's right to reopen his immigration case after he had agreed to an order of voluntary departure and to withdraw his voluntary departure agreement. The court voted narrowly--5-4--in favor of clarifying language in the Immigration and Nationality Act to make it possible for nonimmigrants to withdraw a voluntary departure order.
Dada entered the country on a P-3 visa for entertainers and artists. He overstayed his visa, but had married a U.S. citizen. After a permanent resident application was rejected, the government began deportation proceedings for his overstay on his visa. In lieu of deportation, an immigration judge allowed Dada to make a request for voluntary departure. Under this pledge, the Board of Immigration Appeals gave Dada 30 days in which to leave the country of his volition.
However, two days before the 30-day period expired, Dada moved to reopen his case and asked that his request for voluntary departure be withdrawn. The BIA denied the request to be withdrawn as well as the motion to reopen his case. As a result the 30-day period lapsed, and Dada was subject to deportation and ineligible to reapply for admission for 10 years.
Dada appealed, claiming that he should his voluntary departure window should have been lifted when he filed to reopen his case. The lower court struck down that notion, siding with the BIA in the matter. However, the question is a fairly common one, since the period in which an individual may be allowed to reopen a case is longer than the typical window for a request of voluntary departure. Previously, courts had split on the issue, some siding with the circuit court to which Dada made appeal, some siding with the opposite view.
The Supreme Court's ruling, however, to reverse the circuit court decision clears up the matter. One piece of support cited by the majority opinion is a pending measure that would automatically waive the voluntary departure period in the event of a motion to reopen a case. The Supreme Court's decision effectively enacts that measure.
So what does this mean for you?
It's good news for nonimmigrants who are seeking permanent residency and eventual citizenship. If new facts come to light that might improve your chances of appealing a rejected green card application, it could help you by giving you more time in which to present the compelling evidence or documentation. It could also make the application less stressful, as many deadlines for applications are tight anyway, without having to worry about leaving the country or even deportation.