Immigration · Primary-source case analysis

Dada v. Mukasey: A Noncitizen May Withdraw Voluntary Departure to Pursue Reopening

By Aneeta Mishra and Timothy Chan

Published April 26, 2026 · Updated October 18, 2026

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

Dada reconciles the statutory right to file one motion to reopen with the fixed deadline and penalties attached to voluntary departure.

Two statutory mechanisms collided

Dada’s second family visa petition was pending when he sought reopening; it was not an approved petition. The Court noted its later denial after oral argument. Dada, 554 U.S. at 6–8. The decision reconciled two procedures without deciding that Dada qualified for the family benefit.

The departure period is not automatically tolled

The Court rejected automatic tolling because it would extend the departure bargain without preserving the government’s benefit of timely departure. Dada, 554 U.S. at 19–20. But the opinion did not decide every timing question: Whether a court of appeals could stay voluntary departure pending judicial review was expressly left for another day. Dada, 554 U.S. at 10–11.

Withdrawal preserves the reopening right

Absent a valid regulation resolving the conflict differently, the Court permitted unilateral withdrawal before the period expired. It discussed a proposed rule that would prospectively terminate voluntary departure on a timely reopening or reconsideration filing, while explaining that the proposal did not bind Dada’s case. Dada, 554 U.S. at 20–21. That distinction is why a historical case summary cannot replace checking today’s rule and the particular order.

Disposition

The Court reversed and remanded because Dada had already made a timely withdrawal request that the BIA should have granted. It also identified a different possible solution—pursuing reopening after departure—but expressly did not decide the validity of the departure-withdrawal regulation because it was not challenged. Dada, 554 U.S. at 22–23. Neither that reserved question nor the proposed rule was a holding that every departed person could reopen.

Key takeaways

• Calendar the voluntary-departure expiration immediately.
• Check the current rule’s effect on departure and any separate removal stay before filing; the 2008 opinion alone is not a current filing guide.
• Explain the consequences of giving up voluntary departure.
• Do not assume filing alone pauses the departure clock.

Discussed in: Voluntary Departure in Immigration Court: Eligibility, Bond, Deadlines, and Consequences.