Immigration · Primary-source case analysis

Dada: A Noncitizen May Withdraw Voluntary Departure to Pursue Reopening

By Aneeta Mishra and Timothy Chan

Published May 14, 2026 · Updated October 18, 2026

Decision: Dada v. Mukasey, 554 U.S. 1 (2008).

Dada v. Mukasey reconciled the fixed voluntary-departure period with the statutory right to file one motion to reopen.

Two statutory mechanisms collided

Dada requested withdrawal two days before his thirty-day departure period expired. He also moved to reopen, asking for time to resolve a second family visa petition. The BIA denied reopening more than two months later because he had not departed, without addressing the timely withdrawal request. Dada, 554 U.S. at 6–7. This chronology mattered: The Court did not excuse a first withdrawal request made after the period had already run.

Automatic tolling was rejected

The Court rejected automatic tolling. Someone who stayed to pursue reopening could not keep the entire departure bargain while depriving the government of prompt, costless departure. Dada, 554 U.S. at 19–20. The alternative was to surrender those benefits, not obtain an indefinite extension of them.

Withdrawal preserved the reopening right

The Court required a timely withdrawal opportunity without first deciding whether the reopening motion would succeed. That separation was concrete: Dada’s second visa petition was later denied as a sham marriage, yet the BIA still should have addressed the earlier withdrawal request without regard to the petition’s merits. Dada, 554 U.S. at 8, 21–22. A right to pursue a motion was not a right to approval of the underlying benefit.

The case was remanded

The Court reversed and remanded. It did not grant reopening or immigration status. Withdrawal exposed the person to the alternative removal order; the Court separately discussed seeking a stay while reopening was pending. Dada, 554 U.S. at 21–23. This describes the 2008 holding, not a complete present-day filing instruction: The opinion itself anticipated a different regulatory solution.

Key takeaways

• Calendar the voluntary-departure expiration precisely.
• Decide whether to preserve departure benefits or pursue reopening.
• Do not mistake the historical withdrawal holding for today’s complete filing procedure; check the governing order and current rules.
• Develop the motion-to-reopen merits independently of the timing mechanism.