The Supreme Court decided this week to review how a 60-day deadline works for illegal immigrants who miss the deadline to leave the country after agreeing to self-deportation.
The legal issue in the immigration law appeal is whether such a deadline may be extended when it falls on a weekend.
The Supreme Court granted the petition for certiorari, or review, in Monsalvo Velazquez v. Garland on July 2 in an unsigned order. No justices dissented and the court did not explain its decision.
The petitioner is Hugo Abisai Monsalvo Velazquez, a Mexican citizen who came to the United States illegally as a teenager in 2004. The respondent is Merrick Garland, the U.S. attorney general.
In 2011, the government began removal proceedings, asserting that Mr. Monsalvo was “an alien present in the United States who has not been admitted or paroled.” In immigration law parlance, parole refers to allowing someone not qualified for admission to the United States to enter or remain in the country.
He was given a notice to appear but it did not contain the date and time of the removal hearing, saying the hearing would be held “on a date to be set at a time to be set,” the petition stated.
Mr. Monsalvo admitted the government was entitled to remove him but filed an application under the United Nations Convention Against Torture to seek relief from removal, claiming he would experience criminal violence if sent back to Mexico. He also made an alternative request leaving open the possibility of voluntary departure from the country, a process sometimes called self-deportation.
An immigration court refused his request to block removal and for protection under the torture treaty but held that he qualified for voluntary departure.
Under the Immigration and Nationality Act, the government may permit a voluntary departure within 60 days when an illegal immigrant of “good moral character” receives an unfavorable decision in removal proceedings.
If the illegal immigrant remains, he or she may be assessed a monetary penalty and be deemed ineligible for immigration relief for a decade.
The immigration court granted voluntary departure because Mr. Monsalvo had been residing in the United States for at least one year before removal proceedings were instituted, was of good moral character, and had both the means and desire to leave the country at his own expense, the petition stated.
The court order of March 5, 2019, said he would have “60 calendar days” to leave the country.
This meant the deadline was May 4, a Saturday, even though the judge’s order stated Mr. Monsalvo’s “application for voluntary departure was granted until May 6, 2019,” which was the next business day after May 4.
He appealed to the Board of Immigration Appeals, which upheld the judge’s ruling.
The board reinstated voluntary departure and gave him another 60 days to leave the country. Again, the 60th calendar day fell on a Saturday, in this case, Dec. 11, 2021, according to a government brief.
Mr. Monsalvo wrote in his petition that he filed a motion with the board to reopen the case on Friday, Dec. 10, but the board did not accept the papers for filing until the next business day, which was Dec. 13, a Monday.
In that ruling, the court rejected the government’s “notice-by-installment theory” under which it gave noncitizens incomplete notice by doling out information over time in multiple documents. Justice Neil Gorsuch wrote that the government must “at least” supply an individual “with a single and reasonably comprehensive statement of the nature of the proceedings against him.”
Mr. Monsalvo argued that because he received a deficient notice, Niz-Chavez meant he was eligible to ask for removal to be blocked. He added that blocking removal was appropriate because removal would inflict hardship on his U.S. citizen children, the petition stated.
The board denied the motion on May 4, 2022, finding that in light of the Supreme Court’s 2018 decision in Pereira v. Sessions, Niz-Chavez did not constitute a significant enough change in the law to justify reopening the case.
In Pereira, the court held the government could not put illegal immigrants in immigration proceedings by using a document that failed to state a removal hearing’s time and place.
Mr. Monsalvo sought reconsideration because the board’s practice manual said when “a deadline date falls on a weekend or a legal holiday, the deadline is construed to fall on the next business day.”
The board denied reconsideration, finding that the manual’s guidance did not pertain to voluntary departure periods.
The U.S. Court of Appeals for the Tenth Circuit denied his appeal, agreeing with the board that he filed his motion too late.
At the same time, that court acknowledged the Ninth Circuit had long held that “when a voluntary-departure period expires on a weekend or a holiday, the deadline to voluntarily depart or to file motions related to the voluntary departure is continued to the next business days.”
In his petition, Mr. Monsalvo urged the Supreme Court to resolve the circuit split.
Solicitor General Elizabeth Prelogar urged the justices to dismiss the petition.
Applicable regulations stipulate that “the filing of a motion to reopen ... after the time allowed for voluntary departure has already expired does not in any way impact the period of time allowed for voluntary departure.”
Moreover, the Immigration and Nationality Act “unambiguously states” that permission to voluntarily depart “shall not be valid for a period exceeding 60 days,” she wrote.
As the Supreme Court held in Dada v. Mukasey (2008), that limit is not “subject to equitable tolling” by the courts, Ms. Prelogar wrote. Equitable tolling in immigration law allows a court to extend a legal deadline if an illegal immigrant failed to become aware of the circumstances that gave rise to a claim before a filing deadline expired.
The case is expected to be argued in the court’s new term that begins in October.
