SCOTUS rules immigrant’s voluntary departure deadline extended

Under 8 U.S.C. §1229c(b)(2), the 60-day voluntary departure period set by the government for an immigrant from Mexico who entered the U.S. illegally as a teenager 20 years ago could not expire on a Saturday, Sunday or holiday, meaning his petition to reopen his removal proceeding filed on Monday, Dec. 13, 2021, was timely and must be heard, a divided U.S. Supreme Court has ruled in reversing a decision from the 10th Circuit. Click here to read the full text of the April 22 decision in Velazquez v. Bondi.

BULLET POINTS: “For many years, Congress has authorized the executive branch to draw up regulations to enforce the immigration laws. And since at least the 1950s, those regulations have provided that, when calculating the deadline for the ‘taking of any action,’ the term ‘day’ carries its specialized meaning by excluding Sundays and legal holidays if a deadline would otherwise fall on one of those days. In all the years since, the only notable change to this rule has been the addition of Saturdays to the list of excluded days. Congress adopted §1229c(b)(2) against the backdrop of this consistent, longstanding administrative construction. And, given that, we presume the statute employs the same understanding.

“Nor do we see anything in the statute that might overcome our usual presumption. To the contrary, what evidence we have before us only supports its application. Congress set forth the maximum number of ‘days’ allowed for voluntary departure in §304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In the same section of that law, Congress also provided individuals a certain number of ‘days’ to file motions to reopen or to reconsider. When it comes to those latter provisions, the government concedes, the term ‘days’ is best read in light of pre-existing regulatory practice and thus takes its specialized meaning. Everyone agrees, then, that two provisions in §304 operate to roll a deadline falling on a weekend or legal holiday over to the next business day. And if two provisions in a single section of an Act of Congress use the term ‘days’ this way, it is all the more sensible to think a third provision in the same section does as well. After all, ‘identical words and phrases within the same statute should normally begiven the same meaning.’”

— Justice Neil M. Gorsuch, majority opinion

“This Court granted certiorari to decide whether the deadline for a removable alien to voluntarily depart the United States extends to the next business day if it would otherwise fall on a weekend or public holiday. See 8 U. S. C. §1229c(b)(2). But, the merits-stage briefing revealed a serious, novel jurisdictional objection that may bar our review. Given that complication, we should have vacated and remanded for the Tenth Circuit’s consideration in the first instance. Instead, the majority reaches the merits after finding jurisdiction based on a flawed theory of its own creation. …

“Beyond its substantive constraints, IIRIRA also ‘instituted a new’ and ‘significantly more restrictive’ scheme for judicial review. … That scheme makes the ‘final order of removal’ the linchpin of an alien’s right to judicial review. …

“The Government raised before this Court a new objection to the Tenth Circuit’s jurisdiction: that [Monsalvo Velazquez’s] petition could not support jurisdiction because it did not bear on his removability. The Government emphasized that Monsalvo had asked the Tenth Circuit to review only the denial of his motion for reconsideration, which, unlike his motion for reopening, did not ask the BIA to reopen his removal proceedings. Accordingly, he was asking only ‘to alter a nondispositive portion of the Board’s reasoning in its prior decision declining to reopen proceedings.’ unusual request, the Government contended, did not fall into any category cognizable under §1252.…

“There is no reason for the Court’s intervention today. We did not grant certiorari to address jurisdiction, and — as its novel status reflects — the jurisdictional question plainly is not so pressing as to require immediate resolution. Nor is the underlying question presented so important as to require resolution in this case. That question too arises only rarely: As the Tenth Circuit recognized, its decision below resolved ‘an issue of first impression in th[at] court,’ which had been ‘addressed before by only one other circuit.’”

—Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., and joined in part by Justices Brett M. Kavanaugh and Amy Coney Barrett, dissenting

“The merits question in this case — whether petitioner left the United States within ‘60 days’ after October 12, 2021 — is straightforward. The 60th ‘day’ after October 12, 2021, was Saturday, December 11, 2021. And petitioner failed to depart the country by that Saturday. Saturday is a day of the week, and there is no reason why petitioner could not have left the country on or before that date. Petitioner gives us no reason to believe — and I am aware of none — that the roads to Mexico, his home country, were closed; so he could have driven or taken a bus across the border. He also could have flown to Mexico or any other country that would admit him. Nevertheless, the Court holds that he was entitled to a 2-day extension because the last day of his voluntary departure deadline happened to fall on a weekend. There is no justification for that decision. …

“The Court is sympathetic to petitioner’s plight, but the relevant statutory provision, 8 U.S.C. §1229c(b)(2), sets a deadline, and no matter how such a deadline is calculated, there will always be those who happen to miss it by a day or so. And that will be true whether the deadline is always 60 days or is sometimes extended to 61, 62, or 63 days. There will always be a sympathetic pro se alien who is a day or two late. Unless the Court is willing to extend the statutory deadline indefinitely, it would presumably be forced to say in such cases that a day too late is just too bad. For this reason, sympathy for petitioner cannot justify the Court’s decision.”

— Justice Alito, joined by Justice Kavanaugh, dissenting on the merits

“In short, the Court has no answer to the most important question: How can Monsalvo seek judicial review of his final order of removal while conceding that his final order of removal was lawful? He cannot, so the Tenth Circuit lacked jurisdiction.

“The exact scope of a ‘final order of removal’ has consequences for a host of fact patterns besides the unusual one before us, and because Monsalvo has not challenged any portion of the [immigration judge’s and Board of Immigration Appeals’] decisions finding him removable, I would leave the issue alone. Still, I share JUSTICE THOMAS’s bottom line: The Court should not have addressed the jurisdictional question at all, and, having forged ahead anyway, it got the answer wrong.”

— Justice Barrett, joined by Justice Kavanaugh, dissenting