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The last day of voluntary departure when deadline falls on weekend


Hasn’t that already been decided? That was my reaction when I read the 9th Circuit’s decision issued today in Meza-Vallejos vs. Holder. In this case, the issue before the court was whether Meza -Vallejos was in violation of his order of voluntary departure when the last day fell on a Sunday, and on a Monday, he filed a Motion to Reopen.

Mr. Meza-Vallejos is a citizen of Peru. He applied for asylum and had a hearing in front of an Immigration Judge. The Judge denied asylum but granted voluntary departure. He appealed to the Board of Immigration Appeals (“BIA”) and the BIA affirmed the Judge’s denial of asylum. The BIA, however, renewed Mr. Meza-Vallejos’ request for voluntary departure and granted him until July 16, 2005 – a Saturday, to depart the United States.

Mr. Meza-Vallejos did not appeal the BIA’s decision. Instead, on Monday, July 18, 2005, he filed a motion to reopen with the BIA with a request for an extension of his period of voluntary departure. He indicated in his motion that he had married a U.S. citizen two weeks previously and she had immediately filed an immigrant petition for him. The BIA denied his Motion to Reopen because although it was timely filed for the purpose of filing a Motion to Reopen, it was two days after his voluntary departure period had ended. They denied it because Mr. Meza-Vallejos had overstayed his voluntary departure. Various appeals followed until the case reached the 9th Circuit.

In other tribunals, there are rules for what to do when a deadline falls on a weekend or a holiday. For example the Executive Office for Immigration Review (the Immigration Court) has a rule in their Practice Manual that when a deadline falls on a weekend or a holiday, the deadline is construed to fall on the next business day.

In this case, though, the government argued that the period of voluntary departure was fixed and that it was only issued for 60 days. The government explained that the last day of a period of voluntary departure should not be considered like a filing deadline because Mr. Meza-Vallejos was free to leave at any time. The purpose of a calendar rule applying to filings is to provide a solution for days in which the court may be closed. In the view of the government, there was not a reason to “extend” the voluntary departure period to a Monday because it amounted to providing an extension of voluntary departure beyond 60 days, the term of which was statutorily established by Congress.

The 9th Circuit agreed that the government had a point. Apparently the issue of how to file for affirmative relief when the period of voluntary departure ends on a weekend is not addressed in the regulations or statute.

The Court felt that what the government was asking them to do was to shorten the voluntary departure period. An individual would have to file for affirmative relief prior to the end of the voluntary departure period if the last day of that period fell on a weekend or a holiday. Failure to do so would render that person ineligible for affirmative relief if he or she waited until the next weekday. The 9th Circuit felt that this was an “arbitrary and manifestly unjust” result.

In a common sense decision the Court held:

[W]here the last day of a period of voluntary departure falls on a day on which an immigrant cannot file a motion for affirmative relief with the BIA, that day does not count in the voluntary departure period if, as here, the immigrant files on the first available day a motion that would either have tolled, automatically withdrawn, or otherwise affected his request for voluntary departure. We are not extending the voluntary departure period, but rather determining on which day the sixtieth day falls. For Meza-Vallejos, this means that neither Saturday, July 16 nor Sunday, July 17 is counted in his voluntary departure period. As a result, his motion to reopen was timely filed on Monday, July 18.

It is funny how the Court uses language. “We are not extending the voluntary departure period, but rather determining on which day the sixtieth day falls.” Very clever. Regardless, the decision is good and provides a common sense rule to an issue that we may not see much more of. As the Court notes in a footnote, the problem presented in this case may be of limited duration as the BIA may soon permit electronic filing. In that instance, a request could be filed on a weekend.

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