Voluntary Departure - Dada Decision - Motion to Reopen

DADA DECISION
(The decision has been implemented by the Final Rule, 73 Fed. Reg. 76927, effective January 20, 2009.)

Dada v. Mukasey, 554 U.S. (2008)/WL 2404066 (June 16, 2008)

SUMMARY:
The Supreme Court ruled that, when an alien is granted voluntary departure and then seeks to file a motion to reopen, “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.” (Emphasis added.) Here, two days before his voluntary departure period expired, the petitioner filed a motion to reopen, along with a motion to withdraw his request for voluntary departure, with the intention of applying for adjustment of status. The Board denied the motion to reopen, on the grounds that the petitioner had overstayed his voluntary departure period and thus was statutorily barred from adjustment of status. The Court rejected the government’s argument that, in the Court’s words, “by requesting and obtaining permission to voluntarily depart, the alien knowingly surrenders the opportunity to seek reopening.” The Court also rejected the petitioner’s argument that the voluntary departure period should be tolled while the motion to reopen is pending.
ISSUES:
Please be aware of the following issues that immigration judges may encounter following the Supreme Court’s decision in Dada v. Mukasey.
Rejection of Automatic Tolling
• The Supreme Court in Dada resolved the circuit split regarding automatic tolling of voluntary departure upon the filing of a motion to reopen. Slip op. at 2.
• The Supreme Court rejected automatic tolling, and thus automatic tolling of the voluntary departure period upon the filing of a motion to reopen no longer exists in those circuits that formerly adhered to the practice.
Pending Cases
• The issue currently remains open as to how to address cases where motions to reopen were pending at the time Dada was decided on June 16, 2008.
Jurisdiction
• In a case where voluntary departure was granted by the immigration judge yet is on appeal to the Board, jurisdiction rests with the Board. Accordingly, requests to withdraw voluntary departure are appropriately addressed to the Board.
• Courts will need to reject improperly filed requests to withdraw voluntary departure using the uniform rejection policy for lack of jurisdiction.
Form of the Filing / Coding
• The Dada decision was silent as to the format of the request to withdraw voluntary departure and whether that request must be filed simultaneously with a motion to reopen.
• Because Dada recognized the right of an alien to withdraw his or her voluntary departure agreement prior to its expiration, courts should accept independently filed requests to withdraw voluntary departure.
• Additionally, the requests are distinct from motions to reopen and thus should not be treated or coded in CASE as motions to reopen.
Stays
• Dada specified that an alien who withdraws his or her voluntary departure agreement is subject to the alternate order of removal. Slip op. at 18. The Supreme Court then stated that the alien could be removed within 90 days, and could request a stay of the removal order. Id.
• Notably, the Supreme Court asserted that a denial of a motion for a stay could be an abuse of discretion where non-frivolous grounds support the underlying motion to reopen. Slip op. at 19.
Voluntary Departure Bond
• The issue currently remains open regarding whether proof is required that the mandatory bond was indeed paid such that the alien has a valid voluntary departure agreement to withdraw.
Voluntary Departure Warnings
• The issue currently remains open regarding whether the voluntary departure warnings should be modified to provide the alien with notice of his or her right under Dada to withdraw voluntary departure in order to file a motion to reopen.

Marriage fraud - False Immigration Paternity Test

June 3, 2010

Colombian national found guilty of mariage fraud

ST. THOMAS, U.S. Virgin Islands - A 34-year-old Colombian woman was found guilty June 2 in District Court of marriage fraud related charges following a U.S. Immigration and Customs Enforcement (ICE) investigation.
According to the evidence presented in court, Dora Bibiana Ramirez Laverde, of Estate Altona, St. Thomas, U.S. Virgin Islands (USVI), married Joshua Allen Chitolie, a U.S. citizen from St. Croix, USVI, during a civil ceremony in St. Croix.
A few months later, Chitolie filed a visa petition with the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) to obtain legal permanent resident status for his wife.
While the petition for legal permanent residence was still pending, USCIS learned that Laverde had given birth to a child in order to help establish that her marriage to Chitolie was a bona fide marriage rather than a marriage of convenience in order to circumvent U.S. immigration laws.
USCIS requested Chitolie to submit to a paternity test to prove that he was, in fact, the biological father of the child born to Laverde.
Following testing, the laboratory where the tests were performed sent a copy of the DNA test report and a photo of the male who submitted himself for testing with the child to USCIS. Upon review of the sent material, USCIS noticed that Chitolie was not the person who presented himself for testing.
USCIS interviewed Laverde about the discrepancy where she falsely said that she accompanied her husband Chitolie to the laboratory for the child to be tested. Later in the interview, Laverde admitted that she actually accompanied her boyfriend to the laboratory for the paternity test and that the boyfriend, the actual father of her child, submitted himself for testing using her husband's identity in order to circumvent immigration laws and avoid removal from the United States.
"ICE will not tolerate those who engage in sham marriages to circumvent and exploit our nation's immigration system," said Roberto Escobar-Vargas, acting special agent in charge of ICE's Office of Investigations in Puerto Rico. "Marriage fraud poses a significant vulnerability that must not go unchallenged. ICE aggressively investigates those who take illegal shortcuts to citizenship, whether they do so to gain an immigration benefit or simply for personal profit."
Laverde faces a maximum sentence of five years in federal prison.
This case was prosecuted by Assistant U.S. Attorney Denise A. Hinds.

Immigration Paralegal Jobs - Paid and Unpaid Positions

The M.C. Law Group, LLP has a few part-time and full-time internship openings for students immediately available and for the summer of 2010.


Applicants must email a cover letter, a resume, and general hours of availability to info@uslegalvisa.com.

POSITION 1 - LAW STUDENT LEGAL INTERN

Law student interns will work directly with our attorneys on actual cases as legal assistants. Students must have completed or are in the process of completing at least a year of law school.


POSITION 2 – COLLEGE STUDENT INTERN

Aside from typical administrative and clerical duties, interns will perform some limited paralegal tasks and be involved in various public relations projects and duties. Students must have completed or are in the process of completing college, and must have outstanding business and phone etiquette


POSITION 3 - IMMIGRATION PARALEGAL

Part-time position for an experienced paralegal who can take on back office operations responsibilities. Ability to organize a simplified, well-documented and scalable process is a must. Prior experience with immigration law is a must. 


All positions have unlimited opportunities to grow with the firm.  For more information please visit www.uslegalvisa.com