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For Whom The Board Tolls

by Daniel M. Kowalski

Four federal Circuit Courts of Appeal (the Third, Eighth, Ninth and Eleventh) agree that the filing of a motion to reopen automatically tolls the period of a grant of voluntary departure. Three Circuits (the First, Fourth and Fifth) say no tolling. The issue is now before the U.S. Supreme Court: Dada v. Gonzales, 207 Fed. Appx. 425, No. 06-60180 (5th Cir. Nov. 28, 2006) (per curiam), cert. granted sub nom. Dada v. Keisler, 06-1181, 2007 U.S. LEXIS 9061 (U.S. Sept. 25, 2007). (It’s more than ironic that Dada is from the Fifth Circuit – the one that created the circuit split in the first place.)

AILA, AILF and others have ably covered the issue, and their Supreme Court amicus brief clearly states the case:

"Those courts of appeals that would not toll the voluntary departure period to allow for a motion to reopen have presumed that voluntary departure is an arm’s-length transaction between the government and the recipient. Their assumption reflects a misunderstanding of the actual benefits of voluntary departure and the "application" process itself. Specifically, the courts did not consider voluntary departure’s limited and often illusory benefits or the lack of adequate notice to the recipient about its adverse consequences. Nor did these courts realize that tolling the voluntary departure period actually benefits the government and effectuates public policy goals."
According to the Supreme Court docket sheet, the government opposed the cert. petition in Dada. Failing to block consideration of the issue by the high court, and being on the losing side of the argument, now DOJ - less than two months away from oral argument - is attempting an end-run by issuing a proposed regulation that would effectively pull the plug on tolling and cram the no-tolling position down our throats by edict.

Comments on the proposed regulation are due by January 29, 2008, but one has to wonder if comments would do any good: in IIRAIRA Congress effectively insulated this type of regulation from judicial review. ("No court may review any regulation issued under this subsection." INA § 240B(e), 8 U.S.C. § 1229c(e).)

[sentence deleted Ed. 2/12/08]. The election-related DOJ spin will be that the rule is needed to thwart aliens from "gaming" the system, while those of us in the trenches know the game has been rigged in the government's favor since 1996.

Ask not for whom the Board tolls; it tolls for no one.