HUGO ABISAÍ MONSALVO VELÁZQUEZ, PETITIONER v. PAMELA BONDI, ATTORNEY GENERAL
No. 23-929
SUPREME COURT OF THE UNITED STATES
April 22, 2025
604 U. S. ____ (2025)
OCTOBER TERM, 2024
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MONSALVO VELÁZQUEZ v. BONDI, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 23-929. Argued November 12, 2024—Decided April 22, 2025
The federal government initiated removal proceedings against petitioner Monsalvo Velázquez, who asked the government to suspend its removal efforts or, alternatively, to permit him to leave the United States 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 60th day fell on Saturday, December 11, 2021. Monsalvo filed a motion to reopen proceedings on Monday, December 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 Tenth Circuit. The Tenth Circuit agreed with the Board, holding that the voluntary departure deadline in
Held:
1. This Court has jurisdiction to review Monsalvo‘s petition. Under
2. Under
Three principal counterarguments are insufficient to overcome the presumption that
88 F. 4th 1301, reversed and remanded.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined, and in which KAVANAUGH and BARRETT, JJ., joined as to Parts I and II. ALITO, J., and BARRETT, J., filed dissenting opinions, in which KAVANAUGH, J., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 23-929
HUGO ABISAÍ MONSALVO VELÁZQUEZ, PETITIONER v. PAMELA BONDI, ATTORNEY GENERAL
[April 22, 2025]
This case poses a question about how to calculate a deadline. Often, the government
I
A
Born in Mexico, Hugo Monsalvo Velázquez entered the United States unlawfully as a teenager about 20 years ago. Since then, he has made his life in Colorado. Pet. for Cert. 15. There, he attended high school, some college, and met and married his wife. Ibid. The couple has an 11-year-old son and a 10-year-old daughter, both U. S. citizens. Ibid. Mr. Monsalvo and his wife have raised their family in a home they own outside Denver, where he also owns and operates a small business. Ibid.
In 2011, the federal government initiated proceedings to remove Mr. Monsalvo from the country. Velazquez v. Garland, 88 F. 4th 1301, 1303 (CA10 2023). In response, Mr. Monsalvo did not dispute that he had entered the country unlawfully, but he asked the government to suspend its removal efforts because he would face persecution if returned to Mexico. App. to Pet. for Cert. 44a–50a. Alternatively, he sought permission to leave the country voluntarily. Id., at 50a.
That second request was important to him. As a rule, individuals lawfully determined to be deportable from this country are not entitled to leave on their own terms but instead face detention and forcible removal. See Dada v. Mukasey, 554 U. S. 1, 11 (2008). In certain circumstances, however, the government can afford the option of a “voluntary departure” to those “of good moral character.”
In 2019, an immigration judge issued a decision in Mr. Monsalvo‘s case. The judge rejected his claim that he would face persecution if returned to Mexico. But the judge also found Mr. Monsalvo eligible for voluntary departure and gave him 60 days to leave the country, the maximum allowed by law. App. to Pet. for Cert. 51a. As it happened, the end of that 60-day period fell on a Saturday. So, the judge specified, Mr. Monsalvo‘s deadline for departing voluntarily would extend to the following Monday. Id., at 70a. Should he fail to leave within that period, the immigration judge further ordered, Mr. Monsalvo would face removal and the penalties associated with it. Id., at 51a.
Mr. Monsalvo responded by appealing to the Board of Immigration Appeals. By regulation, that appeal stayed the immigration
“ORDER: The respondent‘s appeal is dismissed.
“FURTHER ORDER: . . . the respondent(s) is (are) permitted to voluntarily depart . . . within 60 days . . . . In the event a respondent fails to voluntarily depart . . . the respondent shall be removed as provided by the Immigration Judge.” Ibid.
The Board‘s decision also included two other salient provisions. In one, the Board warned Mr. Monsalvo that he would face serious penalties if he overstayed his voluntary-departure deadline. Those penalties could include not just removal and monetary fines, but also ineligibility for most forms of immigration relief for a period of 10 years. Id., at 42a–43a;
B
Consistent with the Board‘s direction, Mr. Monsalvo filed a motion to reopen. On Friday, December 10, 2021, his attorney served the government with a copy and sent the original to the Board using an overnight delivery service. Brief for Petitioner 12. On the following Monday, December 13, 2021, the Board accepted the motion for filing. Ibid. The motion drew the Board‘s attention to this Court‘s then-recent decision in Niz-Chavez v. Garland, 593 U. S. 155 (2021), and argued that, under its terms, Mr. Monsalvo was entitled to have his order of removal canceled. Brief for Petitioner 12.
The Board denied the motion to reopen for two reasons. First, it held that Niz-Chavez did not justify reopening Mr. Monsalvo‘s removal proceedings. App. to Pet. for Cert. 37a. Second, and without prompting from the government, the Board held that his motion to reopen had arrived too late. Id., at 38a.
The Board‘s second holding rested on an interpretation of
Mr. Monsalvo filed a motion asking the Board to reconsider this second holding. Pet. for Cert. 19. His reason for focusing on it was obvious. Not only did that holding prevent him from seeking to reopen his case; the Board‘s reasoning had the potential to foreclose for years almost any avenue of lawful immigration relief he might hope to pursue. Addressing the Board‘s holding, Mr. Monsalvo argued that it misconstrued
C
Having failed before the agency, Mr. Monsalvo turned to court, petitioning the Tenth Circuit to review the Board‘s order denying his motion for reconsideration.
We agreed to take up the case because the Tenth Circuit‘s interpretation of
II
Before we can address that question, however, we must attend to an antecedent one. In the Tenth Circuit, the government argued that court lacked statutory jurisdiction to entertain Mr. Monsalvo‘s petition. Here, the government renews its
A
The Tenth Circuit‘s jurisdiction hinged on
The Tenth Circuit held that it had statutory jurisdiction to consider Mr. Monsalvo‘s petition, and we agree. On October 12, 2021, the Board issued an order which petitioner contends, and the government does not dispute, constituted a final order of removal. See App. to Pet. for Cert. 42a–43a; Reply Brief 5; Tr. of Oral Arg. 37–38, 64–65. That order conditionally authorized Mr. Monsalvo‘s detention and removal, providing that “[i]n the event” he failed to leave voluntarily “within 60 days,” the “maximum permitted period allowed by”
It is true that Mr. Monsalvo did not seek judicial review immediately after the Board entered its final order of removal. But, at that stage, he had no reason to do so. The Board had given him “60 days” to leave the country, and the immigration judge had already explained to him that a voluntary-departure deadline falling on a weekend rolls over to the next business day. Supra, at 2, 3. The dispute over the meaning of “60 days” arose only later, when, in ruling on his motion to reopen and without prompting from the government, the Board held that his voluntary-departure deadline expired on a Saturday. See supra, at 4; App. to Pet. for Cert. 38a. Understandably, Mr. Monsalvo asked the Board to reconsider that conclusion before he proceeded to court, giving the agency in the first instance the chance to address his argument that the phrase “60 days” in
B
The government does not dispute that Mr. Monsalvo presented the Tenth Circuit with a legal question about how long he had to depart before facing removal. See Brief for Respondent 18–20. But, the
To be sure, the government emphasizes, things could have worked out differently for Mr. Monsalvo. All he had to do, the government says, was bundle his question about the operation of his voluntary-departure deadline with some challenge to the Board‘s conclusion that he was removable. Id., at 20. So, for example, in addition to asking the Tenth Circuit to review the Board‘s order denying his motion for reconsideration (and rejecting his interpretation of
The government does not deny that, under its view, some people will have to “make up a completely meritless claim in order to get jurisdiction.” Tr. of Oral Arg. 57–58. By the conclusion of administrative proceedings, individuals like Mr. Monsalvo may no longer think they have a viable challenge to their removability, only some other colorable and consequential question about their final orders of removal. But, as the government sees it, they cannot simply bring that live question to court. They must either adorn their judicial petitions with a pointless challenge to their removability or forfeit the right to review altogether.
We see nothing in
Our dissenting colleagues see things differently. In their view, this Court‘s decision in Nasrallah v. Barr, 590 U. S. 573 (2020), requires us to adopt the government‘s jurisdictional theory. See post, at 8–10 (opinion of THOMAS, J.); post, at 2 (opinion of BARRETT, J.). But, if anything, that case supports our conclusion. Nasrallah described a “final order of removal” subject to judicial review as a final order “concluding that the alien is deportable or ordering deportation.” 590 U. S., at 581. And (again) that is exactly what we have here: a final order specifying that the government may remove Mr. Monsalvo if he fails to depart voluntarily within 60 days, and a petition asking the courts to settle a dispute over what that order means.
JUSTICE THOMAS highlights Nasrallah‘s holding that a Board order denying relief under the Convention Against Torture (CAT) in that case was “not part of the removal order.” Post, at 9 (dissenting opinion). But we fail to see the relevance of that holding to this case. A CAT order provides that, “notwithstanding” a removal order, the government may not remove an
JUSTICE BARRETT, for her part, reads Nasrallah as suggesting that an individual like Mr. Monsalvo may not challenge the Board‘s interpretation of a term in his removal order. Instead, he may ask a court only to change or excise a term in his removal order. See post, at 2 (dissenting opin-ion). But Nasrallah held nothing of the kind. Nor is it possible to square such a view with the statutory text. Section
III
A
That takes us to the merits. The Board‘s final order of removal permitted the government to detain and remove Mr. Monsalvo if he failed to leave the country within “60 days . . . the maximum period allowed by”
(“Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days“). But what does that mean: Does every calendar day count? Or does the statute operate to extend a deadline that falls on a weekend or legal holiday to the next business day?
In truth, the statute is susceptible to both understandings. An ordinary reader might understand “days” to mean calendar days, no more or less. That is how the Board and the Tenth Circuit saw it. See supra, at 4–5. And, to be sure, we usually assume statutory terms bear their ordinary meaning “until and unless someone points to evidence suggesting otherwise.” Niz-Chavez, 593 U. S., at 163. But here, evidence suggesting the possibility of specialized meaning does exist. In legal settings, the term “days” is often understood to extend deadlines falling on a weekend or legal holiday to the
To resolve that question, we turn to one of this Court‘s customary interpretive tools. When Congress adopts a new law against the backdrop of a “longstanding administrative construction,” this Court generally presumes the new provision should be understood to work in harmony with what has come before. Haig v. Agee, 453 U. S. 280, 297–298 (1981); accord, United States v. Hill, 506 U. S. 546, 553–554 (1993); FDIC v. Philadelphia Gear Corp., 476 U. S. 426, 437 (1986).
That presumption is all but dispositive here. For many years, Congress has authorized the executive branch to draw up regulations to enforce the immigration laws. See
Nor do we see anything in the statute that might overcome our usual presumption. To the contrary, what evidence we have before us only supports its application. Congress set forth the maximum number of “days” allowed for voluntary departure in §304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In the same section of that law, Congress also provided individuals a certain number of “days” to file motions to reopen or to reconsider. §304, 110 Stat. 3009–593;
Tellingly, too, if Congress meant to depart from settled immigration practice
B
In response to our merits analysis, the government and
JUSTICE ALITO offer three principal counterarguments. But, thoughtful as they are, we find none sufficient to overcome the presumption that
First, the government and JUSTICE ALITO stress the limited reach of the regulation defining the term “day.” Yes, they admit, that rule has long indicated that deadlines expressed in days do not expire on weekends or legal holidays. And yes, they agree, the definition applies for “computing the period of time for taking any action provided in this chapter.”
That much is true, but also irrelevant. The question before us isn‘t whether a regulation can trump a statute (of course not). It is whether Congress‘s work in §304 of IIRIRA should be read in light of the government‘s longstanding regulatory practice. And, again, even the government concedes that the answer is (mostly) yes. Supra, at 12. When speaking of the “days” available for filing motions to reopen or to reconsider in §304, the government admits, Congress meant to follow the pre-existing regulatory practice rolling over deadlines falling on weekends and legal holidays to the next business day. Brief for Respondent 43–44. Nothing in the government‘s argument here supplies a reason to suppose Congress meant the term “days” to work differently when it comes to the voluntary-departure deadline found in the same section of IIRIRA.4
That conclusion, however, does not follow from its premise. Exactly nothing in §304 hints that deadlines found there should operate differently. Nor does the regulatory backdrop against which Congress legislated. Recall that, by 1996, the government‘s regulations had long provided—categorically and without exception—that the term “day” excludes certain weekends and legal holidays when it comes to calculating the deadline for “taking any action,” of whatever kind, required by regulation.
Third, coming at the problem from a different direction, the government and JUSTICE ALITO suggest that we should divide §304‘s deadlines into “procedural” and “substantive” categories. Brief for Respondent 15, 22; post, at 4, 6, 9 (dissenting opinion). For “procedural” deadlines, like those for motions to reopen and reconsider, the government and dissent concede, it makes sense to think Congress legislated against the administrative backdrop we have described, given that the agencies and courts where those motions must be filed are usually closed on weekends and legal holidays. But that consideration is immaterial, the government and JUSTICE ALITO insist, for the “substantive” duty of voluntary departure. After all, an individual can leave the country almost anytime; even if agencies and courts close for the weekend or a legal holiday, airports and roads generally remain open.
Maybe the procedural/substantive distinction the government and dissent propose would make for good policy. But if Congress had something like that in mind, it never said so. Section 304‘s text does not draw any lines between procedural and substantive duties. Nor does the regulatory background against which the statute was adopted hint at such a distinction. As we have seen, the government‘s longstanding definition of the term “day” excludes certain weekends and holidays when calculating the time for taking “any action” under immigration regulations—including when it comes to various “substantive” actions that can plainly be accomplished on a weekend or holiday, like “getting married after entering the United States on a fiancé(e) visa.” Brief for Petitioner 38. Notably, as well, the government‘s own regulations enforcing §304 make no mention of a procedural/substantive distinction either. Supra, at 11–12.
Perhaps, too, Congress had good reason for eschewing the line the government and dissent would have us draw. Often enough, as it happens, a “substantive” duty that can be performed on
in Congress gave so much as a passing thought to questions like that is anyone‘s guess. But one thing is certain: The statutory text Congress chose in
*
As we see it,
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE ALITO joins, and with whom JUSTICE KAVANAUGH and JUSTICE BARRETT join as to Parts I and II, dissenting.
This Court granted certiorari to decide whether the deadline for a removable alien to voluntarily depart the United States extends to the next business day if it would otherwise fall on a weekend or public holiday. See
I
The Immigration and Nationality Act (INA), 66 Stat. 163,
A
“Voluntary departure” is a discretionary form of immigration relief under which “certain favored aliens” can “leave the country willingly,” in lieu of deportation. Dada v. Mukasey, 554 U. S. 1, 8 (2008). This relief
IIRIRA tightened this bargain by “curtail[ing] the period of time during which an alien may remain in the United States pending voluntary departure.” Dada, 554 U. S., at 9. Gone are the days when aliens permitted to voluntarily depart could “‘continue their illegal presence in the United States for months, and even years.‘” Ibid. Now, a voluntary-departure period granted at the end of an alien‘s removal proceedings cannot “excee[d] 60 days.”
To enforce the voluntary-departure deadline, the immigration judge (IJ) or Board of Immigration Appeals (BIA) must enter an “alternate order of removal” alongside any grant of voluntary departure.
IIRIRA also permits an alien to give up his grant of voluntary departure and pursue other administrative relief. Dada, 554 U. S., at 21. The alien may at any time before his voluntary-departure deadline move to reopen his removal proceedings or move for reconsideration of his case.
B
Beyond its substantive constraints, IIRIRA also “instituted a new” and “significantly more restrictive” scheme for judicial review. Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 475 (1999) (AADC). That scheme makes the “final order of removal” the linchpin of an alien‘s right to judicial review.
A final order of removal is “a final order ‘concluding that the alien is deportable or ordering deportation.‘” Nasrallah v. Barr, 590 U. S. 573, 579 (2020) (quoting
Our precedents have interpreted
C
Petitioner Hugo Monsalvo Velázquez is an alien who was granted voluntary departure at the end of his removal proceedings. Before the IJ, he conceded removability but sought CAT relief or withholding of removal based on an alleged risk of future persecution. He asked for voluntary departure in the alternative. The IJ granted only voluntary departure, while also entering the requisite alternate order of removal. On appeal, the BIA reset the voluntary-departure period after it affirmed the IJ‘s denial of other relief.
The BIA set Monsalvo‘s new voluntary-departure period to run for the 60 days following its decision, which issued on October 12, 2021. Measured by calendar days, a 60-day period would end on Saturday, December 11, 2021.
On Friday, December 10, 2021, Monsalvo submitted a motion to reopen his removal proceedings via overnight delivery service. The motion asserted that, following this Court‘s decision in Niz-Chavez v. Garland, 593 U. S. 155 (2021), Monsalvo was newly eligible for cancellation of removal. Pursuant to a BIA policy not challenged here, this after-hours motion was not deemed filed until Monday, December 13, 2021, when the BIA was next open to receive filings. See BIA Practice Manual §3.1(a)(1), https://www.justice.gov/eoir/reference-materials/bia.
The BIA denied Monsalvo‘s motion both on the merits of his Niz-Chavez claim and based on the timing of his filing. On its view, “[t]he 60-day period of voluntary departure terminated on December 11, 2021.” App. to Pet. for Cert. 38a. Because Monsalvo had failed to depart by that deadline, his December 13 reopening motion came when he was already subject to IIRIRA‘s penalties for failing to timely depart, including “ineligibil[ity] for . . . cancellation of removal.” Ibid. Thus, Monsalvo was ineligible for his requested relief.
After Monsalvo moved for reconsideration of only the timing holding, the BIA reaffirmed its position. “[N]o provi-sion[,] statute[,] or regulation extend[s] the last day of the voluntary departure period f[a]lling on a weekend or a legal holiday to the next business day,” it explained, so 60 days means 60 calendar days. Id., at 34a-35a.
Monsalvo petitioned the Tenth Circuit for review of the BIA‘s reconsideration ruling. He argued that, when the voluntary-departure deadline would otherwise fall on a weekend or holiday, it rolls over to the next business day. In deciding his petition, the Tenth Circuit first rejected the Government‘s arguments for why it lacked statutory jurisdiction under
We granted certiorari to review the Tenth Circuit‘s merits holding. 603 U. S. ___ (2024). But, since then, much of the briefing—and our focus at oral argument—has centered on the threshold issue of statutory jurisdiction.
The Government raised before this Court a new objection to the Tenth Circuit‘s jurisdiction: that Monsalvo‘s petition could not support jurisdiction because it did not bear on his removability. The Government emphasized that Monsalvo had asked the Tenth Circuit to review only the
II
In view of the Government‘s serious, late-breaking jurisdictional objection, we should have vacated and remanded for the Tenth Circuit‘s review. Although “[o]bjections to a tribunal‘s jurisdiction can be raised at any time,” Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 153 (2013), we need not resolve a belated objection ourselves.
Our “usual practice” is to refrain from deciding “legal . . . questions in the first instance.” CRST Van Expedited, Inc. v. EEOC, 578 U. S. 419, 435 (2016). “[W]e are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Accordingly, we ordinarily wait to see if “the crucible of adversarial testing . . . along with the experience of our thoughtful colleagues on the district and circuit benches, [can] yield insights (or reveal pitfalls) we cannot muster guided only by our own lights.” Maslenjak v. United States, 582 U. S. 335, 354 (2017) (GORSUCH, J., concurring in part and concurring in judgment).
This Court has routinely vacated and remanded cases so that lower courts can be the first to address significant new developments. Zubik v. Burwell, 578 U. S. 403, 408-409 (2016) (per curiam) (collecting cases). In a number of cases, we have taken this course based on emergent jurisdictional matters specifically. See, e.g., Frank v. Gaos, 586 U. S. 485, 488, 492-493 (2019) (per curiam); Insurance Co. of Pa. v. Ben Cooper, Inc., 498 U. S. 964 (1990).
I would do the same here. Not only was the jurisdictional issue before us not raised below, but until this point it has not been passed upon by any court. Tr. of Oral Arg. 12, 67.1
Caution is also especially important for jurisdictional matters. “Congress’ power over federal jurisdiction is ‘an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.‘” Patchak v. Zinke, 583 U. S. 244, 254 (2018) (plurality opinion) (quoting Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 101 (1998)). When we assume jurisdiction too hastily, we risk aggrandizing ourselves at the expense of the political branches.
There is no reason for the Court‘s intervention today. We did not grant certiorari to address jurisdiction, and—as its novel status reflects—the jurisdictional question plainly is not so pressing as to require immediate resolution. Nor is the underlying question presented so important as to require resolution in this case. That question
Of course, we should not hesitate to brush aside baseless jurisdictional objections. But, the issue here cannot be dismissed on that ground. The Government has raised a serious objection based on the tension between
III
If required to decide the jurisdictional question, however, I would conclude that the Tenth Circuit lacked jurisdiction over Monsalvo‘s petition. “[T]he party invoking federal jurisdiction bears the burden of establishing its existence,” and, on the admittedly limited briefing before us, Monsalvo has not met his burden. Steel Co., 523 U. S., at 104. In contending otherwise, Monsalvo and the majority offer two distinct theories of jurisdiction, but neither holds up.
A
The difficulty for Monsalvo stems from his litigation strategy below. He asked the Tenth Circuit to review only the BIA‘s denial of his reconsideration motion. Supra, at 5. That motion, in turn, challenged only one of the BIA‘s two bases for denying his reopening motion. Supra, at 4-5. Monsalvo objected to the BIA‘s conclusion that the motion was untimely, but not its conclusion that it also failed on the merits. Ibid. In other words, the Government is right to say that, before the Tenth Circuit, he sought only “to alter a nondispositive portion of the Board‘s reasoning” for denying reopening. Brief for Respondent 19.
That framing fits poorly with
Nasrallah made clear that a “final order of removal” refers only to the portion of an IJ or BIA decision that finds or orders removability, not the entirety of that decision. In that case, we considered whether an alien barred under
We began by considering the nature of the CAT denial. In the underlying BIA decision, that denial immediately preceded the alien‘s removal order:
“FURTHER ORDER: The Immigration Judge‘s order granting the respondent‘s application for deferral of removal under the Convention Against Torture is vacated.
“FURTHER ORDER: The respondent is ordered removed from the United States to Lebanon pursuant to the Immigration Judge‘s August 11, 2016, order.” App. to Pet. for Cert. in
Nasrallah v. Barr, O. T. 2019, No. 18-1432, p. 21a.
Still, every Member of this Court recognized that the CAT denial was a distinct order, and not part of the removal order. 590 U. S., at 582; id., at 591 (THOMAS, J., dissenting).
The Nasrallah majority then concluded that the distinct status of a CAT order preserved Nasrallah‘s factual challenge to that order. On its understanding,
Although this conclusion aided Nasrallah, it cuts against Monsalvo. Unlike a CAT claimant, Monsalvo cannot point to any basis for jurisdiction other than
Monsalvo all but conceded below that his petition did not bear on his final order of removal. As he explained in his Tenth Circuit briefing, he “was not seeking to ‘vacate the order of removal against him.‘” Ibid. (quoting Reply Brief for Petitioner in No. 22-9576 (CA10), pp. 5–6 (sealed)). He explained that a ruling that the BIA was wrong about the date of his voluntary-departure deadline “‘would have no effect whatever‘” on “‘the underlying order of removal.‘” Brief for Respondent 19 (quoting Reply Brief for Petitioner in No. 22-9576 (CA10), at 5; emphasis deleted). Monsalvo sought only a collateral advantage: If his voluntary-departure deadline did not expire until December 13, then his motion to reopen—filed the same day—would have canceled his grant of voluntary departure without making him subject to the penalties associated with failing to timely depart, such as “ineligibility for future immigration relief.” 88 F. 4th, at 1307.
It thus is not apparent how the Tenth Circuit had jurisdiction to hear Monsalvo‘s case. Section 1252 allows review of a limited range of removal-related matters; it is not a vehicle to head off unwanted postremoval consequences.
B
Monsalvo‘s attempt to reconceptualize his challenge is unpersuasive. He argues before this Court that the penalties for failing to timely depart are not collateral
Monsalvo divines this conclusion from the BIA‘s original decision on his removability, in which the BIA affirmed the IJ‘s denial of CAT and withholding relief. Monsalvo reads that decision to state that, if he failed to timely depart, a final order of removal with “three distinct terms” would go into effect: first, that he “shall be removed“; second, that he “shall be subject to a [monetary] penalty“; and third, that he “shall be ineligible for a period of 10 years for any further relief under [certain INA provisions].” Id., at 5 (quoting App. to Pet. for Cert. 42a-43a). “If the Tenth Circuit had granted the petition for review,” he says, “the result would have been to delete Clauses 2 and 3” from this removal order. Reply Brief 5.
This argument conflicts with Nasrallah. Again, that decision made clear that a final order of removal refers only to the portion of the IJ‘s or BIA‘s decision “‘concluding that the alien is deportable or ordering deportation.‘” 590 U. S., at 579 (quoting
Moreover, Monsalvo misunderstands the function of the BIA‘s penalty language. That language did not purport to impose liability on him in the event of his failure to timely depart. Rather, it carried out the BIA‘s statutory obligation to give him “notice” of the penalties listed in the INA for untimeliness:
“NOTICE: If a respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute, and shall be ineligible for a period of 10 years for any further relief under [certain INA provisions]. See section 240B(d) of the [INA].” App. to Pet. for Cert. 42a–43a (emphasis added).
See also
In other words, even if the “notice” paragraph could be considered part of his final order of removal, the statements therein are not “terms” of an order that restrict Monsalvo. Rather, those statements merely notify Monsalvo of the law. They retain the same force and effect whether or not Monsalvo met his voluntary-departure deadline. The underlying source of Monsalvo‘s current exposure to liability is instead the INA.
The same is true of the IJ order that the BIA incorporated by reference. That order is the alternate order of removal that the IJ entered when granting voluntary departure. See supra, at 4. It simply stated that “respondent shall be removed to Mexico on the charge in his Notice to Appear.” App. to Pet. for Cert. 51a. And, although the IJ‘s decision also warned of the statutory consequences associated with untimeliness, this warning too was just an acknowledgment of the “penalties . . . under Section 240B(d).” Id., at 51a-52a. So,
In short, Monsalvo‘s theory rests on a misunderstanding of both the scope of a final order of removal and the meaning of the supposed “terms” of this order. Because he bears the jurisdictional burden, these shortcomings should be dispositive. Steel Co., 523 U. S., at 104.3
C
For its part, the majority declines to defend Monsalvo‘s jurisdictional theory. Arguments for jurisdiction are not exempt from principles of party presentation and forfeiture, so that choice should be the end of the jurisdictional road. See, e.g., TransUnion LLC v. Ramirez, 594 U. S. 413, 434-435, n. 6 (2021).
Instead, the majority develops its own theory for jurisdiction, based on reasoning that appeared nowhere in the briefing or at oral argument. The majority agrees with Monsalvo that he seeks review of a “term” in his final order of removal, but it identifies the relevant term as the BIA‘s provision of a 60-day voluntary-departure period. Ante, at 7. And, the majority concludes, the Tenth Circuit had authority to interpret the meaning of “60 days” in this “term” under its jurisdiction to review “‘final order[s] of removal‘” and “‘questions of law . . . arising from’ them.” Ante, at 9–10 (quoting
1
Like Monsalvo, the majority errs by assuming that Monsalvo‘s challenge goes to his final order of removal. To conclude that the grant of voluntary departure is part of Monsalvo‘s final order of removal, the majority appears to view the order as comprising the BIA‘s entire decision. See ante, at 7. But, such a broad construction conflicts with Nasrallah‘s recognition that the CAT order was distinct, even when situated alongside a final order of removal in the same decision. See supra, at 8-10. Following Nasrallah, a grant of voluntary departure is a separate order that “is not itself a final order of removal.” 590 U. S., at 582. The BIA‘s regulations reflect that point: They speak separately of an “order granting voluntary departure” and an “order of removal.”
In discarding Nasrallah, the majority instead relies on the parties’ supposed agreement that the entire BIA decision constitutes a “final order of removal.” It asserts that the parties have agreed that, “[o]n October 12, 2021, the Board issued an order which . . . constituted a final order of removal.” Ante, at 7. But, “federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction,” so we can accept the assumption that we are reviewing a final order of removal only if it is in fact true. Henderson v. Shinseki, 562 U. S. 428, 434 (2011).
Regardless, the majority‘s claim of agreement between the parties rests on a misreading of both parties’ arguments. Although the Government agrees that the BIA decision contains a final order of removal, see Tr. of Oral Arg. 38, it rejects Monsalvo‘s position that this order and the BIA decision are one and the same. As the Government explains, it had previously taken the broader view based on pre-IIRIRA case law, but this Court “rejected [it] in Nasrallah.” Id., at 35, 60. For his part, Monsalvo does purport to “challeng[e] the terms of his removal order,” Reply Brief 5, but the majority misunderstands which terms Monsalvo puts in issue. It asserts that he seeks clarification of what his “order meant” with respect to his obligation “to leave voluntarily ‘within 60 days.‘” Ante, at 7. But, as explained, Monsalvo actually views the relevant terms as the statutory penalties invoked by the BIA. Supra, at 10–11.4 The majority‘s framing of the “final order of removal” in this case rests on a stipulation that no party makes.
2
Even if Monsalvo‘s voluntary-departure order could be considered part of his final order of removal, it does not follow that the Tenth Circuit would have had jurisdiction over a request to clarify the meaning of “60 days.” As relevant here,
Until now, we have understood
Given that we have not previously confronted this issue, and the parties have not briefed it, I express no definitive view. But, it seems at minimum questionable whether an alien who does not oppose the disposition of his final order of removal seeks “review” of that order under
The majority skips over this issue by resorting to
IV
Finally, policy considerations cannot change our analysis. The majority highlights that ruling against Monsalvo on jurisdictional grounds would lead to a curious result. We would invite pointless litigation, the majority asserts, if we held that
“[W]e must enforce the statute that Congress enacted.” Obduskey v. McCarthy & Holthus LLP, 586 U. S. 466, 481 (2019). That means giving effect to Congress‘s decision in
In many cases, a petitioner will still be able to obtain judicial review even under
All this is not to say that
*
Because “a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power” in this case, this Court must carefully abide by Congress‘s jurisdictional strictures. Patchak, 583 U. S., at 254 (plurality opinion). We thus should have vacated and remanded for the Tenth Circuit‘s consideration of the jurisdictional issue. Disregarding Monsalvo‘s jurisdictional burden, the majority instead finds jurisdiction based on an unpersuasive theory of its own creation. I respectfully dissent.
JUSTICE ALITO, with whom JUSTICE KAVANAUGH joins, dissenting.
I agree with JUSTICE THOMAS that the Court should remand this case for the Court of Appeals to decide in the first instance whether it possessed jurisdiction to entertain petitioner‘s petition for review. That case-specific argument was not raised below, and we did not grant review to decide it. If forced to decide the jurisdictional question, however, I would agree with JUSTICE THOMAS and JUSTICE BARRETT that the Court of Appeals lacked jurisdiction. But because the Court has rejected those jurisdictional arguments, I write separately to explain why, in my view, the Court‘s analysis of the merits is wrong.
The merits question in this case—whether petitioner left the United States within “60 days” after October 12, 2021—is straightforward. The 60th “day” after October 12, 2021, was Saturday, December 11, 2021. And petitioner failed to depart the country by that Saturday. 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. 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. He also could have flown to Mexico or any other country that would admit him. Nevertheless, the Court holds that he was entitled to
a 2-day extension because the last day of his voluntary departure deadline happened to fall on a weekend. There is no justification for that decision.
The Court is sympathetic to petitioner‘s plight, but the relevant statutory provision,
That is especially true because today‘s decision will affect cases other than petitioner‘s. We have not been told how many aliens who are granted voluntary departure are ordered to leave within a specified number of days after the date of the relevant order, but assuming that roughly the same number of such orders are issued on
I
“Voluntary departure” is part of a bargain that benefits both the Government and an alien who is subject to removal. When such an alien voluntarily leaves, the Government is spared “the expense of deportation,” and the alien “avoids extended detention,” “can select the country of destination,” and—what is perhaps most important—avoids the restriction on readmission that results from deportation. Dada v. Mukasey, 554 U. S. 1, 11 (2008). Federal immigration law has permitted this mutually beneficial bargain for nearly a century. See Alien Registration Act of 1940, 54 Stat. 672.
That bargain is effective only if the alien lives up to his promise to depart, and in the past that promise was not always kept. For some time, voluntary departure agreements did not include a specific deadline, and some aliens who had agreed to leave “continue[d] their illegal presence in the United States for months, and even years.” Dada, 554 U. S., at 9 (quoting Letter from B. Habberton, Acting Commissioner on Immigration and Naturalization). In 1996, Congress tried to fix that problem by enacting the statutory deadline at issue here. It provides that—in typical circumstances—“[p]ermission to depart voluntarily . . . shall not be valid for a period exceeding 60 days.”
We generally presume that terms used in statutes carry the same meaning they have in ordinary usage. See Niz-Chavez v. Garland, 593 U. S. 155, 160 (2021) (“When called on to resolve a dispute over a statute‘s meaning, this Court normally seeks to afford the law‘s terms their ordinary meaning at the time Congress adopted them“). Therefore, when interpreting the term “days” in
The Court‘s answer is “yes” because, in its view, the term “days,” as used in the voluntary departure provision, has the special meaning that often applies in provisions that set deadlines for filing papers in a court or government office. See, e.g.,
II
A
The Court rejects the ordinary meaning of the statutory language because, in its view,
In an effort to draw some support from this regulation, the Court disregards its specific terms and contends that it embodied a broader rule for counting days that applies even when the action that must be taken by the deadline can be done just as easily on weekends and holidays as on ordinary business days. It is doubtful, however, that the Court is ready to embrace all the implications of this argument. The term “days” appears numerous times in the immigration laws. Does the Court think that every one of these provisions incorporates its unorthodox counting rule? Consider, for example,
I would view this case differently if it involved an administrative interpretation of a statute that contains a technical term or a term that has a special meaning in a particular industry. In United States v. Hill, 506 U. S. 546 (1993), for example, we noted “well established” treasury regulations that reflected an “accepted distinction” between the terms “mineral deposit” and “mineral enterprise,” at least for the purpose of taxing certain mineral interests. Id., at 553-554. And we assumed that Congress “relied” on that “accepted distinction” when it used the term “mineral deposit” in a tax provision. Id., at 553. See also Corning Glass Works v. Brennan, 417 U. S. 188, 201 (1974) (“[W]here Congress has used technical words or terms of art, ‘it [is] proper to explain them by reference to the art or science to which they [are] appropriate‘“). Here, however, the critical term is a commonplace word used countless times in everyday speech.
In sum, Congress had no reason to expect that the purely regulatory definition of “day” was a “longstanding administrative construction” that would in any way bear on the meaning of “day” in the voluntary departure provision.
B
Without support for its interpretation in ordinary language or any special definition that is applicable in a situation like the one at hand, the Court moves on to the presumption of consistent usage, i.e., the presumption that a term has the same meaning throughout a statute. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) (“[I]dentical words and phrases within the same statute should normally be given the same meaning” (emphasis added)). Invoking this presumption, the Court reasons as follows: The term “days” appears not only in the provision fixing the deadline for voluntary departure, but also in neighboring provisions that set certain filing deadlines. Ante, at 13 (citing
By citing the Government‘s concession about the filing deadline provisions, the Court attempts to cloud the real question, which is whether this Court should interpret the term “days” in the filing provisions and the departure provision as having the same meaning or two different meanings. After all, the mere fact that the Government believes that the section‘s filing deadlines should extend when they land on a weekend or holiday does not bind us. Cf. Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 386-390, 412-413 (2024). And the Court‘s willingness to accept the Government‘s interpretation of the relevant provisions is notably selective. The Court eagerly adopts the Government‘s interpretation of the filing provisions but rejects the Government‘s position regarding the voluntary departure provision.
So, I repeat, the real question is what this Court should hold regarding the meaning of the term “days” in the provisions in question. We have three choices. First, we could hold that “days” has its ordinary meaning in both the voluntary departure and the filing provisions. Second, we could hold that the term has a specialized meaning—that it incorporates the rule that a deadline should extend when the final day lands on a weekend or holiday—in all the provisions. Or third, we could hold that the term “days” in the voluntary departure provision has the term‘s ordinary meaning but that the same term, as used in the filing provisions, has the specialized meaning that often applies in provisions of that kind.
The presumption of consistent usage cannot justify the choice of the second option rather than the first, and the Court does not explain why its preferred option (number two) is better than option three, which heeds the ordinary meaning of the term “days” except where there is a reason to adopt a specialized meaning. We presume that a term has the same meaning in all provisions of a law, but the presumption can be overcome, and there is a strong argument that it should be overcome here due to the unique rule that has long been applied to many filing deadlines.
C
Notably, when faced with the possibility that its counting rule might apply to every provision of the immigration laws that includes the term “day,” the Court retreats from the presumption of consistent usage. It asserts that “different statutes passed at different times against different regulatory backdrops may bear different meanings.” Ante, at 18, n. 5. The Court agrees, then, that we must look at the specific circumstances under which the filing and the voluntary departure deadlines were enacted to determine whether the term “day” should be given the same meaning in each provision.
In this case, those circumstances support the inference that Congress intended for the filing deadlines, but not the voluntary departure deadline, to extend when the final day lands on a weekend or holiday. As the Court notes, since at least the 1950s, the immigration regulations have provided that deadlines in the regulations are extended when the final day falls on a weekend or holiday. See ante, at 12-13 (citing
The Court dismisses this important distinction by asserting that “[e]xactly nothing in §304 hints that deadlines found there should operate differently.” Ante, at 16. But of course, exactly nothing in §304 says that “day” should be given a specialized technical meaning either. The Court‘s departure from ordinary meaning is premised on its view that Congress adopted a “longstanding administrative construction.” Ante, at 12. If the Court is going to look to regulatory history
D
The Court‘s final argument is that the filing and voluntary departure deadlines are “intertwined” and that a uniform interpretation is therefore “sensible.” Ante, at 17. Petitioner, for example, was subject to both a deadline to voluntarily depart and a separate deadline to move to reopen his removal proceedings. In reality, however, petitioner only faces penalties for violating one of those deadlines: the 60-day voluntary departure deadline. No one argues here that petitioner was also at risk of missing his deadline to file a motion to reopen. After the BIA issued its order of October 12, petitioner had 90 days to move to reopen the removal proceeding, see
* * *
The provision before us is straightforward. It provides that “[p]ermission to depart voluntarily . . . shall not be valid for a period exceeding 60 days.”
I must therefore respectfully dissent.
JUSTICE BARRETT, with whom JUSTICE KAVANAUGH joins, dissenting.
I agree with JUSTICE THOMAS that the Court is wrong about jurisdiction, but my reasoning is different from his. JUSTICE THOMAS would hold that “a ‘final order of removal’ refers only to the portion of an [Immigration Judge] or [Board of Immigration Appeals] decision that finds or orders removability, not the entirety of that decision.” Ante, at 8 (dissenting opinion). Meanwhile, the Court seems to believe that the entirety of an IJ or BIA decision finding removability is the “final order of removal.” Ante, at 9-10 (opinion of the Court). In short, JUSTICE THOMAS and the Court disagree about how much of the document issued by an IJ or the BIA is open to challenge: The whole thing? Or just the underlying conclusion that the noncitizen is removable?
I would leave that dispute for another day. 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.
The Tenth Circuit had jurisdiction if and only if Monsalvo‘s petition for review sought “[j]udicial review of a final order of removal” under
Yet Monsalvo did not dispute anything in the IJ and BIA decisions finding him removable. He asked the Tenth Circuit to review only the BIA‘s denial of his motion to reconsider its denial of his motion to reopen his removal proceedings. (As these procedural twists and turns suggest, this case comes to us in an idiosyncratic posture.) In his motion to reconsider, Monsalvo had asked the BIA to revisit only its opinion that he had filed his motion to reopen before the expiration of the voluntary departure period—a view that the BIA had expressed in its denial of Monsalvo‘s motion to reopen. The decisions finding him removable, however, did not address how to count days under
I am unpersuaded by the Court‘s rationale for jurisdiction. The Court attempts to reframe what is really a request for clarification about the meaning of
The Court‘s only response is that my reading of
In short, the Court has no answer to the most important question: How can Monsalvo seek judicial review of his final order of removal while conceding that his final order of removal was lawful? He cannot, so the Tenth Circuit lacked jurisdiction.*
* * *
The exact scope of a “final order of removal” has consequences for a host of fact patterns besides the unusual one before us, and because Monsalvo has not