Scalia Dissent Decries Court’s ‘Blue Pencil’ in Immigration Case
The U.S. Supreme Court has ruled in a 5-4 decision that an alien who requested a voluntary departure may withdraw the motion.
The decision (PDF posted by SCOTUSblog) prompted an accusation by dissenting Justice Antonin Scalia that the court had used a “blue pencil” to remedy a dilemma posed by the governing statute, even though the justices had not found a provision to be unconstitutional.
At issue was whether an alien who requests a voluntary departure must adhere to the decision and leave within the prescribed time, even though he has filed a motion to reopen the removal proceedings.
The majority opinion by Justice Anthony M. Kennedy said the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 had created a dilemma for such petitioners. If they failed to leave within the required time, they stood to give up certain forms of relief, including adjustment of status. If they left, however, it had the effect of withdrawing their motion to reopen.
“Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires,” Kennedy wrote.
A dissent by Justice Antonin Scalia argues the court “lacks the authority to impose its chosen remedy,” which was to “blue-pencil” the statute.
“Litigants are put to similar voluntary choices between the rock and the whirlpool all the time, without cries for a judicial rewrite of the law,” he wrote.
The case is Dada v. Mukasey.
