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The federal government initiated removal proceedings against Monsalvo Velázquez, who asked the government to suspend its removal efforts or, alternatively, to permit him to leave the U.S. voluntarily. The immigration judge concluded Monsalvo was removable but granted him an opportunity to voluntarily depart within 60 days. After the Board of Immigration Appeals rejected his appeal, it granted Monsalvo a new 60-day voluntary departure period. The day fell on Saturday, Dec. 11, 2021.
Monsalvo filed a motion to reopen proceedings on Monday, Dec. 13. The board rejected that motion, concluding that the voluntary departure period had expired on Saturday, and Monsalvo’s motion was therefore too late. Monsalvo asked the board to reconsider that conclusion, but the board refused.
Monsalvo then petitioned for judicial review in the 10th Circuit Court of Appeals. The 10th Circuit agreed with the board, holding that the voluntary departure deadline in Section 1229c(b)(2) refers to calendar days with no extension for deadlines that fall on weekends or holidays.
The U.S. Supreme Court held that it had jurisdiction to review Monsalvo’s petition. It found that, although Monsalvo did not challenge his removability, nothing in Section 1252 requires an individual to press a challenge to one term in a final order of removal just to secure judicial review of another.
The court rejected the government’s argument that a petition must include a challenge to removability to secure judicial review. The court noted that such an interpretation would force litigants to assert meritless claims simply to obtain jurisdiction.
The high court also found that, under Section 1229c(b)(2), a voluntary-departure deadline that falls on a weekend or legal holiday extends to the next business day. The board and the 10th Circuit understood “days” to bear the ordinary meaning of calendar days, no more or less. But the Supreme Court explained that evidence suggests a specialized meaning in legal settings where the term “days” is often understood to extend deadlines falling on a weekend or legal holiday to the next business day.
The court noted that, when Congress adopts a new law against the backdrop of a “longstanding administrative construction,” the court generally presumes the new provision works in harmony with what came before.
Since at least the 1950s, immigration regulations have provided that when calculating deadlines, the term “day” carries its specialized meaning by excluding Sundays and legal holidays (and later Saturdays) if a deadline would otherwise fall on one of those days. The court noted that Congress enacted Section 1229c(b)(2) as part of Section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 against this consistent regulatory backdrop. According to the court opinion, the government concedes that other deadlines in the same section of IIRIRA, such as deadlines for motions to reopen or reconsider, are subject to this rule.
The identical term “days” should be given the same meaning throughout Section 304, especially when the provisions were enacted at the same time in the same section of the law.
The Supreme Court found that three principal counterarguments were insufficient to overcome the presumption that Section 1229c(b)(2) follows the government’s own longstanding practice of extending deadlines falling on a weekend or legal holiday to the next business day.
First, the court noted that the fact that the regulatory definition of “day” applies directly only to regulatory deadlines and not to statutory deadlines like the one found in Section 1229c(b)(2) is irrelevant. The question here is not whether a regulation can trump a statute but whether Congress’s work in Section 304 of IIRIRA should be read in light of the government’s longstanding regulatory practice.
Second, the argument that Congress intended different treatment for voluntary departure because it selected 60 days rather than adopting a pre-existing regulatory deadline of 90 or 30 days is unpersuasive, as nothing in Section 304 hints that deadlines should operate differently, and the government itself did not advance this view when promulgating rules to enforce the deadline.
Third, nothing in the text supports the government’s proposed distinction between “procedural” and “substantive” deadlines, as Section 304 does not draw such lines, nor does the regulatory background suggest this distinction, according to the Supreme Court.
The U.S. Supreme Court reversed the lower court’s decision and remanded the case.
Justice Neil Gorsuch delivered the opinion of the court, in which Chief Justice John Roberts Jr., and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined. Justice Clarence Thomas filed a dissenting opinion, in which Justice Samuel Alito Jr. joined, and in which Justices Brett Kavanaugh and Amy Coney Barrett joined as to Parts I and II. Alito and Barrett filed dissenting opinions, in which Kavanaugh joined.
Thomas asserted in his dissent that the merits-stage briefing revealed a novel jurisdictional objection that may bar the high court’s review. “Given that complication, we should have vacated and remanded for the [10th] Circuit’s consideration in the first instance,” Thomas wrote. “Instead, the majority reaches the merits after finding jurisdiction based on a flawed theory of its own creation.”
Thomas went on to note in Part III that if the court was required to decide the jurisdictional question, he would conclude that the 10th Circuit lacked jurisdiction over Monsalvo’s petition.
Alito said he agreed with Thomas that the court should remand the case for the Court of Appeals to decide in the first instance whether it possessed jurisdiction to entertain the petitioner’s petition for review. Alito also noted that, if forced to decide the jurisdictional question, he would agree with Thomas and Barrett that the Court of Appeals lacked jurisdiction.
“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,” Alito wrote. “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.”
Alito asserted there’s no justification for the court’s decision that deadlines should extend to the following business day.
“The [court] is sympathetic to petitioner’s plight, but the relevant statutory provision, [Section 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,” Alito wrote. “And that will be true whether the deadline is always 60 days or is sometimes extended to 61, 62, or 63 days.”
“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,” Alito added. “For this reason, sympathy for petitioner cannot justify the [court’s] decision.”
Barrett wrote that she agreed with Thomas that the court is wrong about jurisdiction, but noted her reasoning is different from his.
“I would leave that dispute for another day,” Barrett wrote. “In my view, there is no need to debate the scope of the removal order, because no matter how broadly you construe it, Monsalvo does not dispute a single word in it.”