Dada v. Mukasey (No Food!)

* Non-Food content *

I'm writing to explore an ambiguity in the Supreme Court's very recent opinion, Dada v. Mukasey (June 16, 2008). It may be that I have misunderstood what is a complex statutory framework. But if I have, I can at least take some comfort in the fact that I don't think the Court has adequately explained itself. I have two specific questions, which I explore a bit below: (a) does the rule pronounced in Dada apply to aliens facing inadmissibility proceedings, or only to aliens, like Dada, subject to removal on deportation grounds and (b) If the rule does apply equally to both cases, why?

Just to recap, at the center of Dada is a fairly simple statutory problem. 8 USC Section 1229c allows aliens, subject to certain restrictions, to accept "voluntary departure" rather than removal under 8 USC 1229a. Choosing voluntary departure has many positive benefits for the alien - as the Supreme Court observes, the alien avoids extended detention pending completion of travel arrangement, is allowed to choose when to depart, and can select the country of destination (slip opinion, p. 8). In addition, the alien avoids certain statutory consequences of removal, such as not being allowed back into the country. In exchange, the alien has to leave the country within 60 (or 120, in some cases) days.

Alternatively, Congress has allowed aliens the right to make a motion to reopen removal proceedings after a negative result. 8 USC Section 1229a(c)(7). The problem that Dada, the alien in this case, ran into is that if one makes a motion to reopen, the Board of Immigration Appeals may not reach a decision on your motion until the 60 or 120 day period for voluntary departure has passed. Unfortunately, the penalties for failing to voluntarily depart are high. For the next ten years, an alien is ineligible for a wide range of immigration benefits. Thus, the alien is stuck between leaving the country, and letting his motion to reopen lapse, and staying, and suffering the consequences of violating an agreement to voluntarily depart. As the Supreme Court puts it, dramatically, the alien is "between Scylla and Charybdis". In view of that mythological bind, the Court majority decided to reinterpret the statute to allow the alien to withdraw his agreement to depart while staying and pursuing his motion to reopen, thus avoiding the consequences of violating 8 USC 1229(c).

The ambiguity I'm interested in arises from a certain looseness in how the Court used what I believe to be immigration terms of art. As I understand it, Section 1229(a), the removal statute, is actually a hybrid of two, distinct, concepts. First, 1229(a) handles what used to be deportation matters. In other words, matters concerning an alien who was once legally in the United States, but is now illegal. But 1229(a) also handles removals for something called inadmissability - in other words, proceedings to remove aliens from the United States who never should have been here.

The Court, however, uses the concepts of inadmissibility and deportation interchangeably. While Dada was fighting a deportation order, for example, the Court cites to consequences he would suffer if he were finally judged inadmissible ("An alien who has been ordered removed under . . . Section 1229(a) of this title (i.e, removal) and who again seeks admission within 5 years of the date of such removal is inadmissible", slip opinion 9, citing 8 USC 1182, the inadmissibility provisions). Similarly, the Court cites INS v. St. Cyr, 538 U.S. 289, 320 (2001) for the proposition that ambiguities in deportation statutes should be construed in favor of the alien, without noting that St. Cyr says nothing about inadmissability, and relatedly observes of Dada that "we must be reluctant to assume that the voluntary departure statute was designed to remove this important safeguard (a motion to reopen) for the distinct class of deportable aliens most favored by the same law." It seems to me that the most natural way to read the opinion is to assume that the Court meant for its rule of lenity to apply to both deportable and inadmissible aliens. Am I wrong?

But unless I've dramatically missed the mark, there are significant differences between deportable and inadmissible aliens, or at least there ought to be. Most fundamentally, deportation has, I think, long been understood to have been a much graver consequence than inadmissibility, even if the real world consequences both consist of removing an alien from the country. The deportee is being expelled from a place they were legally, at one point. In that context, it makes sense that some lenity be applied, because they may have been operating on settled expectations of being residents. Following the trail of St. Cyr's interpretive rule back in time, the centrality of deportation to the idea that removal statutes ought to be interpreted with some consideration for the individual becomes clearer. In Delgadillo v. Carmichael, 332 US 388 (1947), for example, the Court observed that "[d]eportation can be the equivalent of banishment or exile. The stakes are indeed high and momentous for the alien who has acquired his residence here". Or, as the Court noted equally in Fong Haw Taw v. Phelan, 333 U.S. 6 (1948), "[deportation] is the forfeiture for misconduct of a residence in this country".

An inadmissible alien who has the right to choose voluntary departure, however, is in a different position. Even with long tenure living here, I don't see how they can really be said to have "acquired a residence", nor can they plausibly said to have been exiled or banished when removed. Indeed, DHS itself notes that the vast majority of those choosing voluntary departure are Mexicans turned back by the Border Patrol. It doesn't seem obvious as a matter of statutory interpretation that those aliens should be treated in the same way as someone, like Dada, who had once entered legally. Just as important, different rules may be necessary to take into account the different consequences of being removed under an order of deportation as opposed to removal for inadmissability. Even the Department of Justice rule proposal on which the Court relies, for example, asks for input on whether a rule might be crafted allowing an alien to accept a voluntary departure, actually physically leave the country, file a losing petition for review anyway and still be allowed to escape the consequences of having challenged the immigration ruling (72 Fed. Reg. 67682). That alternative, I think, is unavailable under the Court's ruling in Dada, because the Court has provided that aliens fighting inadmissibility charges can stay in the country without suffering the penalties for violating their voluntary departure agreement.

The right answer here may be that deportation removals and inadmissability removals should be treated the same under the statutes I've been discussing. But I am confused by the fact that the Court seemed not to grapple with the subject. To some extent, it may be because I've got the law wrong. I am not an immigration law specialist. But the sheer complexity of the subject suggests to me that Justice Scalia's inclination to allow the regulators to use their discretion to blunt the harshness of the statutory rule is the best answer, (Scalia dissent, p. 8) because that discretion could take into account the different positions of different aliens subject to Section 1229a.