88 F.4th 1301
10th Cir.2023Background
- Hugo Abisai Monsalvo Velázquez, a native of Mexico, entered the U.S. unlawfully in 2005 and was placed in removal proceedings in 2011.
- In 2019, the Immigration Judge (IJ) denied Velázquez withholding of removal and CAT protection, but granted him 60 days of voluntary departure in lieu of removal.
- Velázquez appealed to the Board of Immigration Appeals (BIA), which dismissed the appeal in 2021 and reinstated the 60-day voluntary departure period, warning that late motions would terminate voluntary departure and trigger penalties.
- On December 13, 2021 (a Monday), Velázquez filed a motion to reopen, after the 60th day (Saturday, December 11, 2021), relying in part on recent Supreme Court precedent affecting eligibility for cancellation of removal due to defective NTAs.
- The BIA denied the motion as untimely, finding no statutory or regulatory basis for extending the voluntary departure period when its last day falls on a weekend/holiday; it also denied Velázquez’s motion to reconsider.
- Velázquez petitioned the Tenth Circuit, arguing that deadline computation rules should permit filing on the next business day if the 60th falls on a weekend/holiday.
Issues
| Issue | Velázquez's Argument | Garland's Argument | Held |
|---|---|---|---|
| Whether filing a motion to reopen on the first business day after a voluntary departure period ends on a weekend/holiday is timely | Filing should be considered timely per EOIR policy, which extends deadlines to the next business day | Statute imposes a firm 60-day limit without exceptions for weekends/holidays | Untimely; strict 60-day period enforced |
| Whether legal and policy consistency supports interpreting the statute to allow next-business-day filing | Aligns with rules for other EOIR/BIA deadlines, avoids arbitrary penalty | Policy manual covers filing, not statutory departure periods, and statute is clear | No authority to extend deadline, even for weekends/holidays |
| Jurisdiction to review BIA’s decision on motion to reconsider after voluntary departure | Review is proper—distinct from reviewing grant/denial of voluntary departure itself | No jurisdiction—derives from discretionary grant of voluntary departure | Court has jurisdiction to review legal questions on reconsideration |
| Should the Tenth Circuit adopt the Ninth Circuit's more lenient approach to deadline computation | Ninth Circuit recognized practical obstacles, prevented "shortening" of statutory period | Defies statute, which expressly limits to 60 days regardless of calendar | Declined; adherence to strict 60 days per statute |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (NTA lacking time/place does not stop time for certain immigration relief)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (subsequent notice does not trigger stop-time rule for cancellation eligibility)
- Dada v. Mukasey, 554 U.S. 1 (voluntary departure period may not be extended or tolled beyond statutory maximum)
- Patel v. Garland, 142 S. Ct. 1614 (bars judicial review of factual determinations in certain immigration relief decisions)
- Mata v. Lynch, 576 U.S. 143 (courts have jurisdiction to review denials of motions to reopen/reconsider)