Meza-Vallejos v. Holder
669 F.3d 920
| 9th Cir. | 2011Background
- Meza-Vallejos, a Peruvian citizen, sought review of a BIA decision denying his motion to reopen after a voluntary departure grant.
- He entered the U.S. in 1998, overstayed, and applied for asylum, withholding of removal, and CAT relief in 1999.
- An IJ denied relief but granted voluntary departure; bond posted April 7, 2004; BIA affirmed in 2005 and renewed voluntary departure through July 16, 2005 (a Saturday).
- Meza-Vallejos filed a motion to reopen on July 18, 2005, after the weekend; BIA determined he was ineligible for adjustment because he had not voluntarily departed within 60 days.
- The party relied on Azarte and Barroso to argue tolling rules during voluntary departure; Dada later superseded some aspects; the BIA denied the motion on timeliness grounds, prompting review.
- The Ninth Circuit granted review, held the deadline calculation should exclude weekend days when filing a motion to reopen would affect voluntary departure, and remanded for merits adjudication with costs awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 60-day voluntary departure period ends on a weekend. | Meza-Vallejos argues weekend days should be ignored for the deadline. | BIA argues last day counts, weekends count toward the 60 days of departure. | Yes; the last day or days on a weekend do not count if filing a motion would affect departure. |
| Whether Meza-Vallejos’s motion to reopen was timely. | Filed on the first business day after the period. | Filed after expiration of the voluntary departure period. | Timely; counts last weekend days as non-countable, making July 18 timely. |
| What is the proper summation rule for counting voluntary departure days when no agency guidance exists? | Rule 26(a) or analogous counting should apply to end-date. | BIA’s interpretation is permissible Skidmore deference. | Last-day exclusion for non-filing days governs; remand to consider merits. |
| Does Dada affect whether voluntary departure can be tolled by a motion to reopen filed near expiry? | Dada preserves right to pursue reopening with withdrawal of voluntary departure. | Dada’s rules limited automatic tolling; effects retroactivity unresolved. | Remand to BIA to adjudicate merits in light of Dada’s framework. |
| Should the case be remanded for merits rather than denied on timeliness? | Proper to consider merits if timely motion to reopen. | BIA denied based on timeliness. | GRANT petition; remand for merits; costs awarded. |
Key Cases Cited
- Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005) (tolling during motion to reopen within voluntary departure period; Barroso related)
- Barroso v. Gonzales, 429 F.3d 1195 (9th Cir. 2005) (deadlines for motions and voluntary departure; weekend counting)
- Salvador-Calleros v. Ashcroft, 389 F.3d 959 (9th Cir. 2004) (Rule 26(a) governs counting of days when no agency guidance)
- Dada v. Mukasey, 554 U.S. 1 (S. Ct. 2008) (retains right to pursue reopening; tolling rules clarified)
- Nevarez v. Holder, 572 F.3d 605 (9th Cir. 2009) (procedural issues on Dada retroactivity and withdrawal rights)