MEZA-VALLEJOS v. Holder
2011 U.S. App. LEXIS 20600
9th Cir.2011Background
- Meza-Vallejos, a Peruvian citizen, overstayed in the U.S. after an asylum-related filing seeking relief, including asylum, withholding, and CAT, in 1999.
- An IJ denied relief but granted voluntary departure; Meza-Vallejos posted a voluntary departure bond on April 7, 2004 and the BIA later extended voluntary departure by 60 days to July 16, 2005, a Saturday.
- Meza-Vallejos did not depart; on July 18, 2005 (the following Monday) he filed a motion to reopen and an emergency request for extension.
- The BIA denied the motion, holding that because he failed to depart within the 60-day period, he was statutorily ineligible for adjustment of status for ten years under 8 U.S.C. § 1229c(d)(1).
- Meza-Vallejos timely sought review in the Ninth Circuit; Barroso and Azarte had held the last-day-departure rule in related contexts, but Dada v. Mukasey overruled the stay rule, creating a need to reassess how weekend days affect the expiration of voluntary departure.
- The Ninth Circuit remands to adjudicate the merits of the motion to reopen consistent with the correct counting of voluntary departure days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 60-day voluntary departure period ends on a nonfiling weekend day. | Meza-Vallejos argues last-day falls on weekend; filing Monday tolls the period. | BIA and government treat weekend as non-countable only if last day is weekend; the period ends Saturday. | The sixtieth day does not count weekend days when filing would affect voluntary departure; motion timely filed on Monday. |
| Whether Barroso Azarte guidance apply to this case after Dada. | Azarte/Barroso control timeliness analysis for reopening. | Dada changes tolling rules; must follow Dada framework. | Barroso/Salvador-Calleros analysis adjusted; Dada governs tolling; remand for merits. |
| Whether the BIA erred in denying reopening based on overstaying the voluntary departure period. | Motion timely under correct counting should be heard on merits. | Overstay bars eligibility for ten-year ineligibility for relief. | Remand to consider merits of motion to reopen. |
| What standard governs review of BIA's legal interpretation of voluntary departure rules? | Argues for Skidmore deference to BIA's interpretation. | BIA interpretations may be given Skidmore or Chevron deference as appropriate. | BIA’s interpretation given Skidmore deference; the issue is a legal question reviewed de novo where applicable. |
Key Cases Cited
- Barroso v. Gonzales, 429 F.3d 1195 (9th Cir. 2005) (addressed whether weekend endpoints affect voluntary departure timelines in reopening/remand context)
- Azarte v. Ashcroft, 394 F.3d 1283 (9th Cir. 2005) (reopening within voluntary departure tolling; bar against automatic tolling extended by Dada)
- Salvador-Calleros v. Ashcroft, 389 F.3d 959 (9th Cir. 2004) (counting days when no agency guidance; Rule 26(a) applied to end-date for voluntary departure)
- Dada v. Mukasey, 554 U.S. 1 (Sup. Ct. 2008) (overruled automatic tolling of voluntary departure during motion to reopen)
- Nevarez v. Holder, 572 F.3d 605 (9th Cir. 2009) (discussed applicability of Dada and tolling in circuits)