DADA v. MUKASEY, ATTORNEY GENERAL

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2007
DADA v. MUKASEY, ATTORNEY GENERAL
certiorari to the united states court of appeals for
the fifth circuit
No. 06–1181. Argued January 7, 2008—Decided June 16, 2008
Petitioner, a native and citizen of Nigeria, alleges that he married an
American citizen in 1999. His wife filed an I–130 Petition for Alien
Relative on his behalf that was denied in 2003. The Department of
Homeland Security (DHS) charged Dada with being removable under
the Immigration and Nationality Act for overstaying his temporary non
immigrant visa. The Immigration Judge (IJ) denied the request for a
continuance pending adjudication of a second I–130 petition, found Dada
eligible for removal, and granted his request for voluntary departure
under 8 U. S. C. § 1229c(b). The Board of Immigration Appeals (BIA)
affirmed and ordered Dada to depart within 30 days or suffer statutory
penalties. Two days before the end of the 30-day period, Dada sought
to withdraw his voluntary departure request and filed a motion to re
open removal proceedings under § 1229a(c)(7), contending that new and
material evidence demonstrated a bona fide marriage and that his case
should be continued until resolution of the second I–130 petition. After
the voluntary departure period had expired, the BIA denied the re
quest, reasoning that an alien who has been granted voluntary depar
ture but does not depart in a timely fashion is statutorily barred from
receiving adjustment of status. It did not consider Dada’s request to
withdraw his voluntary departure request. The Fifth Circuit affirmed.
1

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2 DADA v. MUKASEY
Syllabus
Held: An alien must be permitted an opportunity to withdraw a motion
for voluntary departure, provided the request is made before expiration
of the departure period. Pp. 8–22.
(a) Resolution of this case turns on the interaction of two aspects of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996—the alien’s right to file a motion to reopen in removal proceedings
and the rules governing voluntary departure. Pp. 8–15.
(1) Voluntary departure is discretionary relief that allows certain
favored aliens to leave the country willingly. It benefits the Govern
ment by, e. g., expediting the departure process and avoiding deporta
tion expenses, and benefits the alien by, e. g., facilitating readmission.
To receive these benefits, the alien must depart timely. As rele
vant here, when voluntary departure is requested at the conclusion of
removal proceedings, the departure period may not exceed 60 days.
8 U. S. C. § 1229c(b)(2). Pp. 8–12.
(2) An alien is permitted to file one motion to reopen,
§ 1229a(c)(7)(A), asking the BIA to change its decision because of newly
discovered evidence or changed circumstances. The motion generally
must be filed within 90 days of a final administrative removal order,
§ 1229a(c)(7)(C)(i). Although neither the text of § 1229c or § 1229a(c)(7)
nor the applicable legislative history indicates whether Congress in
tended that an alien granted voluntary departure be permitted to pur
sue a motion to reopen, the statutory text plainly guarantees to each
alien the right to file “one motion to reopen proceedings under this sec
tion,” § 1229a(c)(7)(A). Pp. 12–15.
(b) Section 1229c(b)(2) unambiguously states that the voluntary de
parture period “shall not be valid” for more than “60 days,” but says
nothing about the motion to reopen; and nothing in the statutes or past
usage indicates that voluntary departure or motions to reopen cannot
coexist. In reading a statute, the Court must not “look merely to a
particular clause,” but consider “in connection with it the whole stat
ute.” Kokoszka v. Belford, 417 U. S. 642, 650. Reading the Act as a
whole, and considering the statutory scheme governing voluntary de
parture alongside § 1229a(c)(7)(A)’s right to pursue “one motion to
reopen,” the Government’s position that an alien who has agreed to
voluntarily depart is not entitled to pursue a motion to reopen is unsus
tainable. It would render the statutory reopening right a nullity in
most voluntary departure cases since it is foreseeable, and quite likely,
that the voluntary departure time will expire long before the BIA de
cides a timely filed motion to reopen. Absent tolling or some other
remedial action by this Court, then, the alien who is granted voluntary
departure but whose circumstances have changed in a manner cogniza
ble by a motion to reopen is between Scylla and Charybdis: The alien

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3 Cite as: 554 U. S. 1 (2008)
Syllabus
either may leave the United States in accordance with the voluntary
departure order, with the effect that the motion to reopen is deemed
withdrawn, or may stay in the United States to pursue the case’s re
opening, risking expiration of the departure period and ineligibility for
adjustment of status, the underlying relief sought. Because a motion
to reopen is meant to ensure a proper and lawful disposition, this Court
is reluctant to assume that the voluntary departure statute is designed
to make reopening unavailable for the distinct class of deportable aliens
most favored by the same law, when the statute’s plain text reveals no
such limitation. Pp. 15–19.
(c) It is thus necessary to read the Act to preserve the alien’s right
to pursue reopening while respecting the Government’s interest in the
voluntary departure arrangement’s quid pro quo. There is no statutory
authority for petitioner’s proposal to automatically toll the voluntary
departure period during the motion to reopen’s pendency. Voluntary
departure is an agreed-upon exchange of benefits, much like a settle
ment agreement. An alien who is permitted to stay past the departure
date to wait out the motion to reopen’s adjudication cannot then demand
the full benefits of voluntary departure, for the Government’s benefit—
a prompt and costless departure—would be lost. It would also invite
abuse by aliens who wish to stay in the country but whose cases are
unlikely to be reopened. Absent a valid regulation otherwise, the ap
propriate way to reconcile the voluntary departure and motion to reopen
provisions is to allow an alien to withdraw from the voluntary departure
agreement. The Department of Justice, which has authority to adopt
the relevant regulations, has made a preliminary determination that the
Act permits an alien to withdraw a voluntary departure application be
fore expiration of the departure period. Although not binding in the
present case, this proposed interpretation “warrants respectful consid
eration.” Wisconsin Dept. of Health and Family Servs. v. Blumer, 534
U. S. 473, 497. To safeguard the right to pursue a motion to reopen for
voluntary departure recipients, the alien must be permitted to with
draw, unilaterally, a voluntary departure request before the departure
period expires, without regard to the motion to reopen’s underlying
merits. The alien has the option either to abide by the voluntary depar
ture’s terms, and receive its agreed-upon benefits; or, alternatively, to
forgo those benefits and remain in the country to pursue an administra
tive motion. An alien selecting the latter option gives up the possibility
of readmission and becomes subject to the IJ’s alternative order of re
moval. The alien may be removed by the DHS within 90 days, even if
the motion to reopen has yet to be adjudicated. But the alien may
request a stay of the removal order, and, though the BIA has discretion
to deny a motion for a stay based on the merits of the motion to reopen,

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4 DADA v. MUKASEY
Opinion of the Court
it may constitute an abuse of discretion for the BIA to deny a motion
for stay where the motion states nonfrivolous grounds for reopening.
Though this interpretation still confronts the alien with a hard choice,
it avoids both the quixotic results of the Government’s proposal and
the elimination of benefits to the Government that would follow from
petitioner’s tolling rule. Pp. 19–22.
207 Fed. Appx. 425, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens,
Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissent
ing opinion, in which Roberts, C. J., and Thomas, J., joined, post, p. 23.
Alito, J., filed a dissenting opinion, post, p. 31.
Christopher J. Meade argued the cause for petitioner.
With him on the briefs were Seth P. Waxman and Raed
Gonzalez.
Deputy Solicitor General Kneedler argued the cause for
respondent. With him on the brief were former Solicitor
General Clement, Acting Assistant Attorney General Buc
holtz, Deputy Assistant Attorney General Dupree, Toby J.
Heytens, Donald E. Keener, and Quynh Bain.*
Justice Kennedy delivered the opinion of the Court.
We decide in this case whether an alien who has requested
and been granted voluntary departure from the United
States, a form of discretionary relief that avoids certain stat
utory penalties, must adhere to that election and depart
within the time prescribed, even if doing so causes the alien
to forgo a ruling on a pending, unresolved motion to reopen
the removal proceedings. The case turns upon the interac
tion of relevant provisions of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, 110 Stat. 3009–
546 (IIRIRA or Act). The Act provides that every alien
ordered removed from the United States has a right to file
*Briefs of amici curiae urging reversal were filed for the American
Immigration Law Foundation et al. by Nadine Wettstein and Beth Werlin;
and for Adil Chedad by David C. Frederick, Michael F. Sturley, and Saher
Joseph Macarius.

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Opinion of the Court
one motion to reopen his or her removal proceedings. See
8 U. S. C. § 1229a(c)(7) (2000 ed., Supp. V). The statute also
provides, however, that if the alien’s request for voluntary
departure is granted after he or she is found removable, the
alien is required to depart within the period prescribed by
immigration officials, which cannot exceed 60 days. See
§ 1229c(b)(2) (2000 ed.). Failure to depart within the pre
scribed period renders the alien ineligible for certain forms
of relief, including adjustment of status, for a period of 10
years. § 1229c(d)(1) (2000 ed., Supp. V). Pursuant to regu
lation, however, departure has the effect of withdrawing the
motion to reopen. See 8 CFR § 1003.2(d) (2007).
Without some means, consistent with the Act, to reconcile
the two commands—one directing voluntary departure and
the other directing termination of the motion to reopen if an
alien departs the United States—an alien who seeks reopen
ing has two poor choices: The alien can remain in the United
States to ensure the motion to reopen remains pending,
while incurring statutory penalties for overstaying the vol
untary departure date; or the alien can avoid penalties by
prompt departure but abandon the motion to reopen.
The issue is whether Congress intended the statutory
right to reopen to be qualified by the voluntary departure
process. The alien, who is petitioner here, urges that filing
a motion to reopen tolls the voluntary departure period
pending the motion’s disposition. We reject this interpreta
tion because it would reconfigure the voluntary departure
scheme in a manner inconsistent with the statutory design.
We do not have the authority to interpret the statute as peti
tioner suggests. Still, the conflict between the right to file
a motion to reopen and the provision requiring voluntary
departure no later than 60 days remains untenable if these
are the only two choices available to the alien. Absent a
valid regulation resolving the dilemma in a different way,
we conclude the alien must be permitted an opportunity to
withdraw the motion for voluntary departure, provided the

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6 DADA v. MUKASEY
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request is made before the departure period expires. Peti
tioner attempted to avail himself of this opportunity below.
The Court of Appeals for the Fifth Circuit did not disturb
the Board of Immigration Appeals’ (BIA or Board) denial
of petitioner’s request to withdraw the voluntary departure
election. We now reverse its decision and remand the case.
I
Petitioner Samson Taiwo Dada, a native and citizen of
Nigeria, came to the United States in April 1998 on a tempo
rary nonimmigrant visa. He overstayed it. In 1999, peti
tioner alleges, he married an American citizen. Petitioner’s
wife filed an I–130 Petition for Alien Relative on his behalf.
The necessary documentary evidence was not provided, how
ever, and the petition was denied in February 2003.
In 2004, the Department of Homeland Security (DHS)
charged petitioner with being removable under § 237(a)(1)(B)
of the Immigration and Nationality Act (INA), as redesig
nated by IIRIRA § 305(a)(2), 110 Stat. 3009–598, and as
amended, 8 U. S. C. § 1227(a)(1)(B) (2000 ed., Supp. V), for
overstaying his visa. Petitioner’s wife then filed a second
I–130 petition. The Immigration Judge (IJ) denied petition
er’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
petitioner to be removable but granted the request for volun
tary departure under § 1229c(b) (2000 ed.). The BIA af
firmed on November 4, 2005, without a written opinion. It
ordered petitioner to depart within 30 days or suffer statu
tory 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. See App. to Pet. for Cert. 5–6.
Two days before expiration of the 30-day period, on De
cember 2, 2005, petitioner sought to withdraw his request
for voluntary departure. At the same time he filed with the

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BIA a motion to reopen removal proceedings under 8 U. S. C.
§ 1229a(c)(7) (2000 ed., Supp. V). He contended that his mo
tion 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 vol
untary departure period expired, the BIA denied the motion
to reopen on the ground that petitioner had overstayed his
voluntary departure period. Under § 240B(d) of the INA, 8
U. S. C. § 1229c(d) (2000 ed. and Supp. V), the BIA reasoned,
an alien who has been granted voluntary departure but fails
to depart in a timely fashion is statutorily barred from apply
ing for and receiving certain forms of discretionary relief,
including adjustment of status. See App. to Pet. for Cert.
3–4. The BIA did not address petitioner’s motion to with
draw his request for voluntary departure.
The Court of Appeals for the Fifth Circuit affirmed.
Dada v. Gonzales, 207 Fed. Appx. 425 (2006) (per curiam).
Relying on its decision in Banda-Ortiz v. Gonzales, 445 F. 3d
387 (2006), the court held that the BIA’s reading of the appli
cable statutes as rendering petitioner ineligible for relief was
reasonable. The Fifth Circuit joined the First and Fourth
Circuits in concluding that there is no automatic tolling of
the voluntary departure period. See Chedad v. Gonzales,
497 F. 3d 57 (CA1 2007); Dekoladenu v. Gonzales, 459 F. 3d
500 (CA4 2006). Four other Courts of Appeals have reached
the opposite conclusion. See, e. g., Kanivets v. Gonzales, 424
F. 3d 330 (CA3 2005); Sidikhouya v. Gonzales, 407 F. 3d 950
(CA8 2005); Azarte v. Ashcroft, 394 F. 3d 1278 (CA9 2005);
Ugokwe v. United States Atty. Gen., 453 F. 3d 1325 (CA11
2006).
We granted certiorari, see Dada v. Keisler, 551 U. S. 1188
(2007), to resolve the disagreement among the Courts of
Appeals. After oral argument we ordered supplemental
briefing, see 552 U. S. 1138 (2008), to address whether an
alien may withdraw his request for voluntary departure be

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8 DADA v. MUKASEY
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fore expiration of the departure period. Also after oral ar
gument, on January 10, 2008, petitioner’s second I–130 appli
cation was denied by the IJ on the ground that his marriage
is a sham, contracted solely to obtain immigration benefits.
II
Resolution of the questions presented turns on the interac
tion of two statutory schemes—the statutory right to file a
motion to reopen in removal proceedings and the rules gov
erning voluntary departure.
A
Voluntary departure is a discretionary form of relief that
allows certain favored aliens—either before the conclusion
of removal proceedings or after being found deportable—to
leave the country willingly. Between 1927 and 2005, over 42
million aliens were granted voluntary departure; almost 13
million of those departures occurred between 1996 and 2005
alone. See Dept. of Homeland Security, Aliens Expelled:
Fiscal Years 1892 to 2005, Table 38 (2005), online at http://
www.dhs.gov/ximgtn/statistics/publications/YrBk05En.shtm
(all Internet materials as visited June 13, 2008, and available
in Clerk of Court’s case file).
Voluntary departure was “originally developed by admin
istrative officers, in the absence of a specific mandate in the
statute.” 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immi
gration Law and Procedure § 74.02[1], p. 74–15 (rev. ed. 2007)
(hereinafter Gordon). The practice was first codified in the
Alien Registration Act of 1940, § 20, 54 Stat. 671. The Alien
Registration Act amended § 19 of the Immigration Act of
Feb. 5, 1917, 39 Stat. 889, to provide that an alien “deportable
under any law of the United States and who has proved good
moral character for the preceding five years” may be permit
ted by the Attorney General to “depart the United States
to any country of his choice at his own expense, in lieu of
deportation.” § 20(c), 54 Stat. 672.

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In 1996, perhaps in response to criticism of immigration
officials who had expressed frustration that aliens granted
voluntary departure were “permitted to continue their ille
gal presence in the United States for months, and even
years,” Letter from Benjamin G. Habberton, Acting Com
missioner on Immigration and Naturalization, to the Execu
tive Director of the President’s Commission on Immigration
and Naturalization, reprinted in Hearings before the House
Committee on the Judiciary, 82d Cong., 2d Sess., 1954
(Comm. Print 1952), Congress curtailed the period of time
during which an alien may remain in the United States pend
ing voluntary departure. The Act, as pertinent to voluntary
departures requested at the conclusion of removal proceed
ings, provides:
“The Attorney General may permit an alien voluntar
ily to depart the United States at the alien’s own ex
pense if, at the conclusion of a proceeding under section
1229a of this title, the immigration judge enters an order
granting voluntary departure in lieu of removal and
finds that—
“(A) the alien has been physically present in the
United States for a period of at least one year immedi
ately preceding the date the notice to appear was served
under section 1229(a) of this title;
“(B) the alien is, and has been, a person of good moral
character for at least 5 years immediately preceding the
alien’s application for voluntary departure;
“(C) the alien is not deportable under section
1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and
“(D) the alien has established by clear and convinc
ing evidence that the alien has the means to depart
the United States and intends to do so.” 8 U. S. C.
§ 1229c(b)(1).
See also § 1229c(a)(1) (“The Attorney General may permit an
alien voluntarily to depart the United States at the alien’s

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10 DADA v. MUKASEY
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own expense under this subsection” in lieu of being subject
to removal proceedings or prior to the completion of those
proceedings; the alien need not meet the requirements of
§ 1229c(b)(1) if removability is conceded).
When voluntary departure is requested at the conclusion
of removal proceedings, as it was in this case, the statute
provides a voluntary departure period of not more than 60
days. See § 1229c(b)(2). The alien can receive up to 120
days if he or she concedes removability and requests volun
tary departure before or during removal proceedings. See
§ 1229c(a)(2)(A). Appropriate immigration authorities may
extend the time to depart but only if the voluntary departure
period is less than the statutory maximum in the first in
stance. The voluntary departure period in no event may
exceed 60 or 120 days for §§ 1229c(b) and 1229c(a) departures,
respectively. See 8 CFR § 1240.26(f) (2007) (“Authority to
extend the time within which to depart voluntarily specified
initially by an immigration judge or the Board is only within
the jurisdiction of the district director, the Deputy Executive
Associate Commissioner for Detention and Removal, or the
Director of the Office of Juvenile Affairs. . . . In no event can
the total period of time, including any extension, exceed 120
days or 60 days as set forth in section 240B of the Act”).
The voluntary departure period typically does not begin
to run until administrative appeals are concluded. See 8
U. S. C. § 1101(47)(B) (“The order . . . shall become final upon
the earlier of—(i) a determination by the [BIA] affirming
such order; or (ii) the expiration of the period in which the
alien is permitted to seek review of such order by the
[BIA]”); § 1229c(b)(1) (Attorney General may permit volun
tary departure at conclusion of removal proceedings); see
also 8 CFR § 1003.6(a) (2007) (“[T]he decision in any proceed
ing . . . from which an appeal to the Board may be taken
shall not be executed during the time allowed for the filing
of an appeal . . . ”). In addition some Federal Courts of
Appeals have found that they may stay voluntary departure

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Opinion of the Court
pending consideration of a petition for review on the merits.
See, e. g., Thapa v. Gonzales, 460 F. 3d 323, 329–332 (CA2
2006); Obale v. Attorney General of United States, 453 F. 3d
151, 155–157 (CA3 2006). But see Ngarurih v. Ashcroft, 371
F. 3d 182, 194 (CA4 2004). This issue is not presented here,
however, and we leave its resolution for another day.
Voluntary departure, under the current structure, allows
the Government and the alien to agree upon a quid pro quo.
From the Government’s standpoint, the alien’s agreement to
leave voluntarily expedites the departure process and avoids
the expense of deportation—including procuring necessary
documents and detaining the alien pending deportation.
The Government also eliminates some of the costs and bur
dens associated with litigation over the departure. With the
apparent purpose of ensuring that the Government attains
the benefits it seeks, the Act imposes limits on the time for
voluntary departure, see supra, at 10, and prohibits judi
cial review of voluntary departure decisions, see 8 U. S. C.
§§ 1229c(f) and 1252(a)(2)(B)(i).
Benefits to the alien from voluntary departure are evident
as well. He or she avoids extended detention pending com
pletion of travel arrangements; is allowed to choose when
to depart (subject to certain constraints); and can select the
country of destination. And, of great importance, by de
parting voluntarily the alien facilitates the possibility of re
admission. The practice was first justified as involving “no
warrant of deportation . . . so that if [the alien reapplies] for
readmission in the proper way he will not be barred.” 2
National Commission on Law Observance and Enforcement:
Report on the Enforcement of the Deportation Laws of the
United States 57, 102–103 (1931) (Report No. 5). The cur
rent statute likewise allows an alien who voluntarily departs
to sidestep some of the penalties attendant to deportation.
Under the current Act, an alien involuntarily removed from
the United States is ineligible for readmission for a period
of 5, 10, or 20 years, depending upon the circumstances of

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removal. See 8 U. S. C. § 1182(a)(9)(A)(i) (“Any alien who
has been ordered removed under section 1225(b)(1) of this
title or at the end of proceedings under section 1229a of this
title initiated upon the alien’s arrival in the United States
and who again seeks admission within 5 years of the date of
such removal (or within 20 years in the case of a second or
subsequent removal . . . ) is inadmissible”); § 1182(a)(9)(A)(ii)
(“Any alien not described in clause (i) who—(I) has been or
dered removed under section [240] or any other provision of
law, or (II) departed the United States while an order of
removal was outstanding, and who seeks admission within
10 years of the date of such alien’s departure or removal . . .
is inadmissible”). An alien who makes a timely departure
under a grant of voluntary departure, on the other hand, is
not subject to these restrictions—although he or she other
wise may be ineligible for readmission based, for instance,
on an earlier unlawful presence in the United States, see
§ 1182(a)(9)(B)(i).
B
A motion to reopen is a form of procedural relief that “asks
the Board to change its decision in light of newly discovered
evidence or a change in circumstances since the hearing.”
1 Gordon § 3.05[8][c], at 3–76.32. Like voluntary departure,
reopening is a judicial creation later codified by federal stat
ute. An early reference to the procedure was in 1916, when
a Federal District Court addressed an alien’s motion to re
open her case to provide evidence of her marriage to a
United States citizen. See Ex parte Chan Shee, 236 F. 579
(ND Cal.); see also Chew Hoy Quong v. White, 244 F. 749, 750
(CA9 1917) (addressing an application to reopen to correct
discrepancies in testimony). “The reopening of a case by
the immigration authorities for the introduction of further
evidence” was treated then, as it is now, as “a matter for the
exercise of their discretion”; where the alien was given a
“full opportunity to testify and to present all witnesses and
documentary evidence at the original hearing,” judicial in

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terference was deemed unwarranted. Wong Shong Been v.
Proctor, 79 F. 2d 881, 883 (CA9 1935).
In 1958, when the BIA was established, the Attorney Gen
eral promulgated a rule for the reopening and reconsidera
tion of removal proceedings, 8 CFR § 3.2, upon which the
current regulatory provision is based. See 23 Fed. Reg.
9115, 9118–9119 (1958), final rule codified at 8 CFR § 3.2
(1959) (“The Board may on its own motion reopen or recon
sider any case in which it has rendered a decision” upon a
“written motion”); see also BIA: Powers; and Reopening or
Reconsideration of Cases, 27 Fed. Reg. 96–97 (1962). Until
1996, there was no time limit for requesting the reopening
of a case due to the availability of new evidence.
Then, in 1990, “fear[ful] that deportable or excludable
aliens [were] try[ing] to prolong their stays in the U. S. by
filing one type of discretionary relief . . . after another in
immigration proceedings,” Justice Dept. Finds Aliens Not
Abusing Requests for Relief, 68 Interpreter Releases 907,
908 (July 22, 1991) (No. 27), Congress ordered the Attorney
General to “issue regulations with respect to . . . the period
of time in which motions to reopen . . . may be offered in
deportation proceedings,” including “a limitation on the
number of such motions that may be filed and a maximum
time period for the filing of such motions,” Immigration Act
of 1990, § 545(d)(1), 104 Stat. 5066. The Attorney General
found little evidence of abuse, concluding that requirements
for reopening are a disincentive to bad faith filings. See 68
Interpreter Releases, supra. Because “Congress . . . nei
ther rescinded [n]or amended its mandate to limit the num
ber and time frames of motions,” however, the Department
of Justice (DOJ) issued a regulation imposing new time limits
and restrictions on filings. The new regulation allowed the
alien to file one motion to reopen within 90 days. Executive
Office for Immigration Review; Motions and Appeals in Im
migration Proceedings, 61 Fed. Reg. 18900, 18901, 18905
(1996); see 8 CFR § 3.2 (1996).

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14 DADA v. MUKASEY
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With the 1996 enactment of the Act, Congress adopted the
recommendations of the DOJ with respect to numerical and
time limits. The current provision governing motions to re
open states:
“(A) In general
“An alien may file one motion to reopen proceedings
under this section . . . .
“(B) Contents
“The motion to reopen shall state the new facts that
will be proven at a hearing to be held if the motion is
granted, and shall be supported by affidavits or other
evidentiary material.
“(C) Deadline
“(i) In general
“Except as provided in this subparagraph, the mo
tion to reopen shall be filed within 90 days of the date
of entry of a final administrative order of removal.”
8 U. S. C. § 1229a(c)(7) (2000 ed., Supp. V).
To qualify as “new,” § 1229a(c)(7)(B), the facts must be
“material” and of the sort that “could not have been dis
covered or presented at the former hearing,” 8 CFR
§ 1003.2(c)(1) (2007); 1 Gordon § 3.05[8][c], at 3–76.34 (“Evi
dence is not previously unavailable merely because the mov
ant chose not to testify or to present evidence earlier, or
because the IJ refused to admit the evidence”). There are
narrow exceptions to the 90-day filing period for asylum pro
ceedings and claims of battered spouses, children, and par
ents, see 8 U. S. C. §§ 1229a(c)(7)(C)(ii), (iv) (2000 ed., Supp.
V), which are not applicable here.
The Act, to be sure, limits in significant ways the availabil
ity of the motion to reopen. It must be noted, though, that
the Act transforms the motion to reopen from a regulatory
procedure to a statutory form of relief available to the alien.
Nowhere in § 1229c(b) or § 1229a(c)(7) did Congress discuss
the impact of the statutory right to file a motion to reopen

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15 Cite as: 554 U. S. 1 (2008)
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on a voluntary departure agreement. And no legislative
history indicates what some Members of Congress might
have intended with respect to the motion’s status once the
voluntary departure period has elapsed. But the statutory
text is plain insofar as it guarantees to each alien the right
to file “one motion to reopen proceedings under this section.”
§ 1229a(c)(7)(A) (2000 ed., Supp. V).
III
The Government argues that, by requesting and obtaining
permission to voluntarily depart, the alien knowingly sur
renders the opportunity to seek reopening. See Brief for
Respondent 29–30. Further, according to the Government,
petitioner’s proposed rule for tolling the voluntary departure
period would undermine the “carefully crafted rules govern
ing voluntary departure,” including the statutory directive
that these aliens leave promptly. Id., at 18, 46–47.
To be sure, 8 U. S. C. § 1229c(b)(2) contains no ambiguity:
The period within which the alien may depart voluntarily
“shall not be valid for a period exceeding 60 days.” See also
8 CFR § 1240.26(f) (2007) (“In no event can the total period of
time, including any extension, exceed” the statutory periods
prescribed by 8 U. S. C. §§ 1229c(a) and 1229c(b)); § 1229c(d)
(2000 ed. and Supp. V) (imposing statutory penalties for
failure to depart). Further, § 1229a(c)(7) does not forbid a
scheme under which an alien knowingly relinquishes the
right to seek reopening in exchange for other benefits, in
cluding those available to the alien under the voluntary de
parture statute. That does not describe this case, however.
Nothing in the statutes or past usage with respect to volun
tary departure or motions to reopen indicates they cannot
coexist. Neither § 1229a(c)(7) nor § 1229c(b)(2) says any
thing about the filing of a motion to reopen by an alien who
has requested and been granted the opportunity to voluntar
ily depart. And there is no other statutory language that
would place the alien on notice of an inability to seek the

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16 DADA v. MUKASEY
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case’s reopening in the event of newly discovered evidence
or changed circumstances bearing upon eligibility for relief.
In reading a statute we must not “look merely to a particu
lar clause,” but consider “in connection with it the whole
statute.” Kokoszka v. Belford, 417 U. S. 642, 650 (1974)
(quoting Brown v. Duchesne, 19 How. 183, 194 (1857); inter
nal quotation marks omitted); see also Gozlon-Peretz v.
United States, 498 U. S. 395, 407 (1991) (“ ‘In determining the
meaning of the statute, we look not only to the particular
statutory language, but to the design of the statute as a
whole and to its object and policy’ ” (quoting Crandon v.
United States, 494 U. S. 152, 158 (1990))); United States v.
Heirs of Boisdore´, 8 How. 113, 122 (1850) (“[W]e must not be
guided by a single sentence or member of a sentence, but
look to the provisions of the whole law, and to its object
and policy”).
Reading the Act as a whole, and considering the statutory
scheme governing voluntary departure alongside the statu
tory right granted to the alien by 8 U. S. C. § 1229a(c)(7)(A)
(2000 ed., Supp. V) to pursue “one motion to reopen proceed
ings,” the Government’s position that the alien is not entitled
to pursue a motion to reopen if the alien agrees to voluntar
ily depart is unsustainable. It would render the statutory
right to seek reopening a nullity in most cases of voluntary
departure. (And this group is not insignificant in number;
between 2002 and 2006, 897,267 aliens were found removable,
of which 122,866, or approximately 13.7%, were granted vol
untary departure. See DOJ, Executive Office for Immigra
tion Review, FY 2006 Statistical Year Book, p. Q1 (Feb.
2007).) It is foreseeable, and quite likely, that the time al
lowed for voluntary departure will expire long before the
BIA issues a decision on a timely filed motion to reopen.
See Proposed Rules, DOJ, Executive Office for Immigration
Review, Voluntary Departure: Effect of a Motion To Reopen
or Reconsider or a Petition for Review, 72 Fed. Reg. 67674,
67677, and n. 2 (2007) (“As a practical matter, it is often the

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case that an immigration judge or the Board cannot rea
sonably be expected to adjudicate a motion to reopen or re
consider during the voluntary departure period”). These
practical limitations must be taken into account. In the
present case the BIA denied petitioner’s motion to reopen
68 days after he filed the motion—and 66 days after his vol
untary departure period had expired. Although the record
contains no statistics on the average disposition time for mo
tions to reopen, the number of BIA proceedings has in
creased over the last two decades, doubling between 1992
and 2000 alone; and, as a result, the BIA’s backlog has more
than tripled, resulting in a total of 63,763 undecided cases in
2000. See Dorsey & Whitney LLP, Study Conducted for:
the American Bar Association Commission on Immigration
Policy, Practice and Pro Bono Re: Board of Immigration Ap
peals: Procedural Reforms To Improve Case Management 13
(2003), online at http://www.dorsey.com/files/upload/Dorsey
StudyABA_8mgPDF.pdf.
Since 2000, the BIA has adopted new procedures to reduce
its backlog and shorten disposition times. In 2002, the DOJ
introduced rules to improve case management, including an
increase in the number of cases referred to a single Board
member and use of summary disposition procedures for cases
without basis in law or fact. See BIA: Procedural Reforms
To Improve Case Management, 67 Fed. Reg. 54878 (2002),
final rule codified at 8 CFR § 1003.1 et seq. (2006); see also
§ 1003.1(e)(4) (summary affirmance procedures). Neverthe
less, on September 30, 2005, there were 33,063 cases pending
before the BIA, 18% of which were more than a year old.
See FY 2006 Statistical Year Book, supra, at U1. On Sep
tember 30, 2006, approximately 20% of the cases pending had
been filed during fiscal year 2005. See ibid. Whether an
alien’s motion will be adjudicated within the 60-day statu
tory period in all likelihood will depend on pure happen
stance—namely, the backlog of the particular Board member
to whom the motion is assigned. Cf. United States v. Wil

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18 DADA v. MUKASEY
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son, 503 U. S. 329, 334 (1992) (arbitrary results are “not to
be presumed lightly”).
Absent tolling or some other remedial action by the Court,
then, the alien who is granted voluntary departure but
whose circumstances have changed in a manner cognizable
by a motion to reopen is between Scylla and Charybdis: He
or she can leave the United States in accordance with the
voluntary departure order; but, pursuant to regulation, the
motion to reopen will be deemed withdrawn. See 8 CFR
§ 1003.2(d); see also 23 Fed. Reg. 9115, 9118, final rule codified
at 8 CFR § 3.2 (1958). Alternatively, if the alien wishes to
pursue reopening and remains in the United States to do
so, he or she risks expiration of the statutory period and
ineligibility for adjustment of status, the underlying relief
sought. See 8 U. S. C. § 1229c(d)(1) (2000 ed., Supp. V) (fail
ure to timely depart renders alien “ineligible, for a period of
10 years,” for cancellation of removal under § 240A, adjust
ment of status under § 245, change of nonimmigrant status
under § 248, and registry under § 249 of the INA); see also
App. to Pet. for Cert. 3–4 (treating petitioner’s motion to
reopen as forfeited for failure to depart).
The purpose of a motion to reopen is to ensure a proper
and lawful disposition. We must be reluctant to assume that
the voluntary departure statute was designed to remove this
important safeguard for the distinct class of deportable
aliens most favored by the same law. See 8 U. S. C.
§§ 1229c(a)(1), (b)(1)(C) (barring aliens who have committed,
inter alia, aggravated felonies or terrorism offenses from re
ceiving voluntary departure); § 1229c(b)(1)(B) (requiring an
alien who obtains voluntary departure at the conclusion of
removal proceedings to demonstrate “good moral charac
ter”). This is particularly so when the plain text of the stat
ute reveals no such limitation. See Costello v. INS, 376
U. S. 120, 127–128 (1964) (counseling long hesitation “before
adopting a construction of [the statute] which would, with
respect to an entire class of aliens, completely nullify a pro

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19 Cite as: 554 U. S. 1 (2008)
Opinion of the Court
cedure so intrinsic a part of the legislative scheme”); see also
Stone v. INS, 514 U. S. 386, 399 (1995) (“Congress might not
have wished to impose on the alien” the difficult choice cre
ated by treating a motion to reopen as rendering the under
lying order nonfinal for purposes of judicial review); INS v.
St. Cyr, 533 U. S. 289, 320 (2001) (recognizing “ ‘the long
standing principle of construing any lingering ambiguities in
deportation statutes in favor of the alien’ ” (quoting INS v.
Cardoza-Fonseca, 480 U. S. 421, 449 (1987))).
IV
A
It is necessary, then, to read the Act to preserve the alien’s
right to pursue reopening while respecting the Government’s
interest in the quid pro quo of the voluntary departure
arrangement.
Some solutions, though, do not conform to the statutory
design. Petitioner, as noted, proposes automatic tolling of
the voluntary departure period during the pendency of the
motion to reopen. We do not find statutory authority for
this result. Voluntary departure is an agreed-upon ex
change of benefits, much like a settlement agreement. In
return for anticipated benefits, including the possibility of
readmission, an alien who requests voluntary departure
represents that he or she “has the means to depart the
United States and intends to do so” promptly. 8 U. S. C.
§ 1229c(b)(1)(D); 8 CFR §§ 1240.26(c)(1)–(2) (2007); cf.
§ 1240.26(c)(3) (the judge may impose additional conditions to
“ensure the alien’s timely departure from the United
States”). Included among the substantive burdens imposed
upon the alien when selecting voluntary departure is the ob
ligation to arrange for departure, and actually depart, within
the 60-day period. Cf. United States v. Brockamp, 519 U. S.
347, 352 (1997) (substantive limitations are not subject to eq
uitable tolling). If the alien is permitted to stay in the
United States past the departure date to wait out the adjudi

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20 DADA v. MUKASEY
Opinion of the Court
cation of the motion to reopen, he or she cannot then demand
the full benefits of voluntary departure; for the benefit to the
Government—a prompt and costless departure—would be
lost. Furthermore, it would invite abuse by aliens who wish
to stay in the country but whose cases are not likely to be
reopened by immigration authorities.
B
Although a statute or regulation might be adopted to re
solve the dilemma in a different manner, as matters now
stand the appropriate way to reconcile the voluntary depar
ture and motion to reopen provisions is to allow an alien to
withdraw the request for voluntary departure before expira
tion of the departure period.
The DOJ, which has authority to adopt regulations rele
vant to the issue at hand, has made a preliminary determina
tion that the Act permits an alien to withdraw an application
for voluntary departure before expiration of the departure
period. According to this proposal, there is nothing in the
Act or the implementing regulations that makes the grant of
voluntary departure irrevocable. See 72 Fed. Reg. 67679.
Accordingly, the DOJ has proposed an amendment to 8 CFR
§ 1240.26 that, prospectively, would “provide for the auto
matic termination of a grant of voluntary departure upon the
timely filing of a motion to reopen or reconsider, as long as
the motion is filed prior to the expiration of the voluntary
departure period.” 72 Fed. Reg. 67679, Part IV–D; cf. id.,
at 67682, Part VI (“The provisions of this proposed rule will
be applied prospectively only, that is, only with respect to
immigration judge orders issued on or after the effective
date of the final rule that grant a period of voluntary depar
ture”). Although not binding in the present case, the DOJ’s
proposed interpretation of the statutory and regulatory
scheme as allowing an alien to withdraw from a voluntary
departure agreement “warrants respectful consideration.”
Wisconsin Dept. of Health and Family Servs. v. Blumer, 534

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21 Cite as: 554 U. S. 1 (2008)
Opinion of the Court
U. S. 473, 497 (2002) (citing United States v. Mead Corp., 533
U. S. 218 (2001), and Thomas Jefferson Univ. v. Shalala, 512
U. S. 504 (1994)).
We hold that, to safeguard the right to pursue a motion to
reopen for voluntary departure recipients, the alien must be
permitted to withdraw, unilaterally, a voluntary departure
request before expiration of the departure period, without
regard to the underlying merits of the motion to reopen. As
a result, the alien has the option either to abide by the terms,
and receive the agreed-upon benefits, of voluntary depar
ture; or, alternatively, to forgo those benefits and remain in
the United States to pursue an administrative motion.
If the alien selects the latter option, he or she gives up the
possibility of readmission and becomes subject to the IJ’s
alternative order of removal. See 8 CFR § 1240.26(d). The
alien may be removed by the DHS within 90 days, even if the
motion to reopen has yet to be adjudicated. See 8 U. S. C.
§ 1231(a)(1)(A). But the alien may request a stay of the order
of removal, see BIA Practice Manual § 6.3(a), http://www.
usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm; cf. 8 U. S. C.
§ 1229a(b)(5)(C) (providing that a removal order entered in
absentia is stayed automatically pending a motion to re
open); and, though the BIA has discretion to deny the motion
for a stay, it may constitute an abuse of discretion for the
BIA to do so where the motion states nonfrivolous grounds
for reopening.
Though this interpretation still confronts the alien with a
hard choice, it avoids both the quixotic results of the Govern
ment’s proposal and the elimination of benefits to the Gov
ernment that would follow from petitioner’s tolling rule.
Contrary to the Government’s assertion, the rule we adopt
does not alter the quid pro quo between the Government and
the alien. If withdrawal is requested prior to expiration of
the voluntary departure period, the alien has not received
benefits without costs; the alien who withdraws from a vol
untary departure arrangement is in the same position as an

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22 DADA v. MUKASEY
Opinion of the Court
alien who was not granted voluntary departure in the first
instance. Allowing aliens to withdraw from their voluntary
departure agreements, moreover, establishes a greater prob
ability that their motions to reopen will be considered. At
the same time, it gives some incentive to limit filings to non
frivolous motions to reopen; for aliens with changed circum
stances of the type envisioned by Congress in drafting
§ 1229a(c)(7) (2000 ed. and Supp. V) are the ones most likely
to forfeit their previous request for voluntary departure in
return for the opportunity to adjudicate their motions.
Cf. Supp. Brief for Respondent 1–2 (“[I]t is extraordinarily
rare for an alien who has requested and been granted volun
tary departure by the BIA to seek to withdraw from that
arrangement within the voluntary departure period”).
A more expeditious solution to the untenable conflict be
tween the voluntary departure scheme and the motion to
reopen might be to permit an alien who has departed the
United States to pursue a motion to reopen postdeparture,
much as Congress has permitted with respect to judicial re
view of a removal order. See IIRIRA § 306(b), 110 Stat.
3009–612 (repealing 8 U. S. C. § 1105a(c) (1994 ed.), which
prohibited an alien who “departed from the United States
after the issuance of the order” to seek judicial review). As
noted previously, 8 CFR § 1003.2(d) provides that the alien’s
departure constitutes withdrawal of the motion to reopen.
This regulation, however, has not been challenged in these
proceedings, and we do not consider it here.
* * *
Petitioner requested withdrawal of his motion for volun
tary departure prior to expiration of his 30-day departure
period. The BIA should have granted this request, without
regard to the merits of petitioner’s I–130 petition, and per
mitted petitioner to pursue his motion to reopen. We find
this same mistake implicit in the Court of Appeals’ decision.
We reverse the judgment of the Court of Appeals and re

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23 Cite as: 554 U. S. 1 (2008)
Scalia, J., dissenting
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
Justice Scalia, with whom The Chief Justice and Jus
tice Thomas join, dissenting.
The statutory provision at issue here authorizes the Attor
ney General to permit an alien who has been found deport
able, if he so requests, to depart the country voluntarily.
This enables the alien to avoid detention pending involuntary
deportation, to select his own country of destination, to leave
according to his own schedule (within the prescribed period),
and to avoid restrictions upon readmission that attend invol
untary departure. The statute specifies that the permission
“shall not be valid for a period exceeding 60 days,” 8 U. S. C.
§ 1229c(b)(2), and that failure to depart within the prescribed
period causes the alien to be ineligible for certain relief, in
cluding adjustment of status, for 10 years, § 1229c(d)(1) (2000
ed., Supp. V). Moreover, pursuant to a regulation that the
Court accepts as valid, departure (whether voluntary or in
voluntary) terminates the alien’s ability to move for reopen
ing of his removal proceeding, and withdraws any such
motion filed before his departure. See 8 CFR § 1003.2(d)
(2007). All of these provisions were in effect when peti
tioner agreed to depart, and the Court cites no statute or
regulation currently in force that permits an alien who has
agreed voluntarily to depart to change his mind. Yet the
Court holds that petitioner must be permitted to renounce
that agreement (the opinion dresses this up as “withdraw
[ing] the motion for voluntary departure”) provided the re
quest is made before the departure period expires. Ante,
at 5. That is “necessary,” the Court says, to “preserve the
alien’s right to pursue reopening,” ante, at 19, forfeiture of
which was the known consequence of the departure he had
agreed to. The Court’s perceived “necessity” does not exist,

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24 DADA v. MUKASEY
Scalia, J., dissenting
and the Court lacks the authority to impose its chosen rem
edy. I respectfully dissent.
The Court is resolute in its belief that there is a “conflict
between the right to file a motion to reopen and the provision
requiring voluntary departure no later than 60 days.” Ante,
at 5. The statute cannot be interpreted to put the alien to
the choice of either (1) “remain[ing] in the United States to
ensure [his] motion to reopen remains pending, while incur
ring statutory penalties for overstaying the voluntary depar
ture date” or (2) “avoid[ing] penalties by prompt departure
but abandon[ing] the motion to reopen.” Ibid. This, ac
cording to the Court, would “render the statutory right to
seek reopening a nullity in most cases of voluntary depar
ture.” Ante, at 16. Indeed, the problem is of mythological
proportions: “[T]he alien who is granted voluntary departure
but whose circumstances have changed in a manner cogniza
ble by a motion to reopen is between Scylla and Charybdis:
He or she can leave the United States in accordance with the
voluntary departure order; but, pursuant to regulation, the
motion to reopen will be deemed withdrawn.” Ante, at 18.
So certain is the Court of this premise that it is asserted no
less than seven times during the course of today’s opinion.
See ante, at 5, 16, 18–22.
The premise is false. It would indeed be extraordinary
(though I doubt it would justify a judicial rewrite) for a stat
ute to impose that stark choice upon an alien: depart and
lose your right to seek reopening, or stay and incur statutory
penalties. But that is not the choice this statute imposes.
It offers the alien a deal, if he finds it in his interest and
wishes to take it: “Agree to depart voluntarily (within the
specified period, of course) and you may lose your right to
pursue reopening, but you will not suffer detention, you can
depart at your own convenience rather than ours, and to the
destination that you rather than we select, and you will not
suffer the statutory restrictions upon reentry that accom
pany involuntary departure. If you accept this deal, how

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25 Cite as: 554 U. S. 1 (2008)
Scalia, J., dissenting
ever, but do not live up to it—if you fail to depart as prom
ised within the specified period—you will become ineligible
for cancellation of removal, adjustment of status, and volun
tary departure.” Seems entirely reasonable to me. Liti
gants are put to similar voluntary choices between the rock
and the whirlpool all the time, without cries for a judicial
rewrite of the law. It happens, for example, whenever a
criminal defendant is offered a plea bargain that gives him a
lesser sentence than he might otherwise receive but deprives
him of his right to trial by jury and his right to appeal. It
is indeed utterly commonplace that electing to pursue one
avenue of relief may require the surrender of certain other
remedies.
Petitioner requested and accepted the above described
deal, but now—to put the point bluntly but entirely accu
rately—he wants to back out. The case is as simple as that.
Two days before the deadline for his promised voluntary de
parture, he filed a motion asking the Board of Immigration
Appeals (BIA) to reopen his removal proceedings and re
mand his case to the Immigration Judge for adjustment of
status based on his wife’s pending visa petition. Adminis
trative Record 3; see id., at 8–21. The motion also asked
the BIA to “withdraw his request for voluntary departure”
and “instead accep[t] an order of deportation.” Id., at 10.
After the voluntary departure period expired, the BIA de
nied petitioner’s motion to reopen, explaining that under 8
U. S. C. § 1229c(d) (2000 ed. and Supp. V), “an alien who fails
to depart following a grant of voluntary departure . . . is
statutorily barred from applying for certain forms of discre
tionary relief.” App. to Pet. for Cert. 3–4.
It seems to me that the BIA proceeded just as it should
have, and just as petitioner had every reason to expect. To
be sure, the statute provides for the right to file (and pre
sumably to have ruled upon in due course) a petition to re
open. But it does not forbid the relinquishment of that right
in exchange for other benefits that the BIA has discretion to

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26 DADA v. MUKASEY
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provide. Nor does it suggest any weird departure from the
ancient rule that an offer (the offer to depart voluntarily in
exchange for specified benefits, and with specified conse
quences for default) cannot be “withdrawn” after it has been
accepted and after the quid pro quo promise (to depart) has
been made.
The Court’s rejection of this straightforward analysis is
inconsistent with its treatment of petitioner’s argument that
the statute requires automatic tolling of the voluntary depar
ture period while a motion to reopen is pending. With re
spect to that argument, the Court says:
“Voluntary departure is an agreed-upon exchange of
benefits, much like a settlement agreement. In return
for anticipated benefits, including the possibility of read
mission, an alien who requests voluntary departure rep
resents that he or she ‘has the means to depart the
United States and intends to do so’ promptly. Included
among the substantive burdens imposed upon the alien
when selecting voluntary departure is the obligation to
arrange for departure, and actually depart, within the
60-day period.” Ante, at 19 (citations omitted).
Precisely so. But also among the substantive burdens is the
inability to receive certain relief through a motion to reopen
once the promised departure date has passed; and perhaps
paramount among the substantive burdens is that the alien
is bound to his agreement. The Court is quite right that
the Act does not allow us to require that an alien who agrees
to depart voluntarily must receive the benefits of his bargain
without the costs. But why does it allow us to convert 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, alterna
tively, to forgo those benefits and remain in the United
States to pursue an administrative motion”? Ante, at 21.
And why does it allow us to nullify the provision of

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27 Cite as: 554 U. S. 1 (2008)
Scalia, J., dissenting
§ 1229c(d)(1) that failure to depart within the prescribed and
promised period causes the alien to be ineligible for certain
relief, including adjustment of status (which is what peti
tioner seeks here) for 10 years?
Of course it is not unusual for the Court to blue-pencil a
statute in this fashion, directing that one of its provisions,
severable from the rest, be disregarded. But that is done
when the blue-penciled provision is unconstitutional. It
would be unremarkable, if the Court found that the alien
had a constitutional right to reopen, and that conditioning
permission for voluntary departure upon waiver of that right
was an unconstitutional condition, for the Court to order that
the alien cannot be held to his commitment. But that is not
the case here. The Court holds that the plain requirement
of the statute and of validly adopted regulations cannot be
enforced because the statute itself forbids it.
Not so. The Court derives this prohibition from its belief
that an alien must, no matter what, be given the full benefit
of the right to reopen, even if that means creating an extra
statutory option to renege upon the statutorily contemplated
agreement to depart voluntarily. “We must be reluctant to
assume,” the Court says, “that the voluntary departure stat
ute was designed to remove this important safeguard [of the
motion to reopen],” “particularly so when the plain text of
the statute reveals no such limitation.” Ante, at 18. But
in fact that safeguard is not sacrosanct. The “plain text of
the statute” does cause voluntary departure to remove that
safeguard for at least 30 days of its 90-day existence, and
permits voluntary departure to remove it almost entirely.
Section 1229a(c)(7) (2000 ed., Supp. V) generally permits the
filing of a motion to reopen “within 90 days of . . . entry of a
final administrative order of removal.” But as I have de
scribed, § 1229c(b)(2) (2000 ed.) provides that a grant of vol
untary departure issued at the conclusion of removal pro
ceedings “shall not be valid for a period exceeding 60 days.”
Since motions to reopen cannot be filed after removal or de

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28 DADA v. MUKASEY
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parture, the unquestionable effect of the statutory scheme is
to deprive the alien who agrees to voluntary departure of
the (sacrosanct) right to reopen for a full third of its exist
ence. And since 60 days is merely the maximum period for
a voluntary departure, it is theoretically possible for the
right to reopen to be limited to one week, or even one day.
Given that reality, it is not at all hard to believe that the
statute allows nullification of motions to reopen requesting
adjustment of status filed within the 60-day departure period
and not ruled upon before departure. Indeed, it seems to
me much more likely that the statute allows that than that
it allows judicial imposition of the unheard-of rule that a
promise to depart is not a promise to depart, and judicial
nullification of a statutorily prescribed penalty for failure to
depart by the gimmick of allowing the request for voluntary
departure to be “withdrawn.”
The same analysis makes it true that, even under the
Court’s reconstructed statute, a removable alien’s agreement
to depart voluntarily may limit, and in some instances fore
close, his ability to pursue a motion to reopen at a later date.
Even if the alien who has agreed to voluntary departure is
permitted to renege within the specified departure period,
that period can be no longer than 60 days after entry of the
order of removal—meaning that he has been deprived of at
least 30 days of his right to reopen. Thus, the Court has
not “reconciled” statutory provisions; it has simply rewritten
two of them to satisfy its notion of sound policy—the require
ment of a commitment to depart and the prescription that a
failure to do so prevents adjustment of status.
The Court suggests that the statute compels its conclu
sion because otherwise “[w]hether an alien’s motion will be
adjudicated within the 60-day statutory period in all likeli
hood will depend on pure happenstance—namely, the back
log of the particular Board member to whom the motion
is assigned” and because “arbitrary results are ‘not to be
presumed lightly.’ ” Ante, at 17–18. It is, however, a
happenstance that the alien embraces when he makes his

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29 Cite as: 554 U. S. 1 (2008)
Scalia, J., dissenting
commitment to leave, and its effect upon him is therefore not
arbitrary. If he wants to be sure to have his motion to re
open considered, he should not enter into the voluntary de
parture agreement. A reading of the statute that permits
that avoidable happenstance seems to me infinitely more
plausible than a reading that turns a commitment to depart
into an option to depart.
But the most problematic of all the Court’s reasons for
allowing petitioner to withdraw his motion to depart volun
tarily is its reliance on the Department of Justice’s (DOJ)
as-yet-unadopted proposal that is in some respects (though
not the crucial one) similar to the Court’s rule. See ante,
at 20–21 (citing Proposed Rules, DOJ, Executive Office for
Immigration Review, Voluntary Departure: Effect of a Mo
tion To Reopen or Reconsider or a Petition for Review, 72
Fed. Reg. 67674, 67677, and n. 2 (2007)). I shall assume that
the proposed rule would be valid, even though it converts
the statutory requirement of departure within the pre
scribed period (on pain of losing the right to seek adjustment
of status) into an option to depart.1 According to the Court,
the proposed regulation “ ‘warrants respectful consider
ation.’ ” Ante, at 20. What this evidently means is re
spectful adoption of that portion of the proposed regulation
with which the Court agrees, and sub silentio rejection of
that portion it disfavors, namely: “The provisions of this pro
posed rule will be applied . . . only with respect to immigra
tion judge orders issued on or after the effective date of the
final rule that grant a period of voluntary departure,” 72
Fed. Reg. 67682. See Supp. Brief for Respondent 8–9 (ob
serving that the rule “will not apply to petitioner’s case”).
1 An agency need not adopt, as we must, the best reading of a statute,
but merely one that is permissible. See Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 866 (1984). Moreover, the
proposed rule, operating only prospectively, makes the ability to withdraw
part of the deal that the alien accepts, and limits the alien’s commitment
accordingly. Petitioner’s promise has already been made, and the require
ment that he depart within the specified period is unconditional.

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30 DADA v. MUKASEY
Scalia, J., dissenting
Our administrative law jurisprudence is truly in a state of
confused degeneration if this pick-and-choose technique con
stitutes “respectful” consideration.
It must be acknowledged, however, that the Department’s
proposed regulation has some bearing upon this case: It dem
onstrates that the agency is actively considering whether the
terms it has prescribed for its discretionary grants of volun
tary departure are too harsh and should be revised for the
future, perhaps along the very lines that the Justices in to
day’s majority would choose if they were the Attorney Gen
eral. It shows, in other words, that today’s interpretive
gymnastics may have been performed, not for the enjoyment
of innumerable aliens in the future, but for Mr. Dada alone.
* * *
In the final analysis, the Court’s entire approach to inter
preting the statutory scheme can be summed up in this sen
tence from its opinion: “Allowing aliens to withdraw from
their voluntary departure agreements . . . establishes a
greater probability that their motions to reopen will be con
sidered.” Ante, at 22. 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 Govern
ment 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 to
day’s judgment decrees. I would affirm the judgment of the
Court of Appeals.2
2 Justice Alito agrees that the statute does not require the BIA to
grant petitioner’s motion to withdraw from his agreement to depart volun
tarily. He chooses to remand the case because the BIA did not give the
reason for its denial of the withdrawal motion, and he believes the reason

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31 Cite as: 554 U. S. 1 (2008)
Alito, J., dissenting
Justice Alito, dissenting.
This case presents two questions: (1) “[w]hether the filing
of a motion to reopen removal proceedings automatically
tolls the period within which an alien must depart . . . under
an order granting voluntary departure,” Brief for Petitioner
i, and (2) “[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 voluntary departure
prior to the expiration of the departure period,” 552 U. S.
1138 (2008). I agree with the Court that the answer to the
first question is no. Ante, at 5.
As to the second question, the Court’s reasoning escapes
me. The Court holds as follows: “Absent a valid regulation
resolving the dilemma in a different way,” “the appropriate
way to reconcile the” relevant provisions of the Illegal Immi
gration Reform and Immigrant Responsibility Act of 1996
“is to allow an alien to withdraw the request for voluntary
departure before expiration of the departure period.” Ante,
at 5, 20 (emphasis added). Thus, the Court apparently does
not hold that the statute compels the Government to permit
an alien to withdraw a request for voluntary departure, only
that the statute permits that approach, a proposition with
which I agree.
Since the statute does not decide the question whether an
alien should be permitted to withdraw a voluntary departure
request, the authority to make that policy choice rests with
the agency. See, e. g., Smiley v. Citibank (South Dakota),
N. A., 517 U. S. 735, 740–741 (1996) (noting the “presumption
that Congress, when it left ambiguity in a statute meant for
implementation by an agency, understood that the ambiguity
would be resolved, first and foremost, by the agency”); De
would be the wrong one if the BIA thought it lacked statutory authority
to grant. Post, at 32 (dissenting opinion). But petitioner has challenged
neither the adequacy of the BIA’s reason for denying his motion, nor the
BIA’s failure to specify a reason. He has argued only that the statute
requires that he be allowed to withdraw.

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32 DADA v. MUKASEY
Alito, J., dissenting
partment of Treasury, IRS v. FLRA, 494 U. S. 922, 932–933
(1990) (refusing to sustain an agency’s decision on the ground
that it was based on “a permissible (though not an inevitable)
construction of [a] statute,” because the agency should define
and adopt that construction “in the first instance”). Accord
ingly, at the time of the decision in petitioner’s case, the
Board of Immigration Appeals (BIA or Board) had the au
thority (1) to adopt the majority’s automatic withdrawal rule
(indeed, the agency has proposed a regulation to that effect,
see ante, at 20), (2) to decide that withdrawal should be per
mitted in certain circumstances, which may or may not be
present here, or (3) to hold that a motion to withdraw is
never appropriate.
Neither the BIA nor the Fifth Circuit addressed petition
er’s motion to withdraw, see ante, at 7, and therefore the
ground for the Board’s decision is unclear. I would affirm if
the BIA either chose as a general matter not to permit the
withdrawal of requests for voluntary departure or decided
that permitting withdrawal was not appropriate under the
facts of this case. However, if the BIA rejected the with
drawal request on the ground that it lacked the statutory
authority to permit it, the Board erred. Because the ground
for the BIA’s decision is uncertain, I would vacate and
remand.