Supreme Court Mulls Deadline for Voluntary Immigrant Departures

The US Supreme Court appeared divided over whether to give immigrants who voluntarily agree to leave the country more flexibility to appeal their deportation.

The justices weighed at argument on Tuesday whether the 60-day voluntary departure deadline extends to the following business day if it falls on a weekend or a public holiday.

That’s what happened to Hugo Abisaí Monsalvo Velázquez, a Mexican who entered the US as a teenager in 2005 and was later ordered to leave.

Velázquez argues he should get an extension, but there seemed to be disagreement among the justices on whether voluntary departure deadlines should be treated the same as filing deadlines.

Justice Amy Coney Barrett said filing deadlines often get bumped to a Monday when they fall on a Saturday because courts are closed, but she asked if Velázquez could’ve left the country on a Saturday.

“That strikes me as the difference here,” she said.

Velázquez’s attorney, Gerard Cedrone of Goodwin Procter, said he couldn’t dispute the factual premise that often somebody can get on a plane or drive across the border on a Saturday, but he argued the principle isn’t just about court closures or filings.

Justice Samuel Alito said he couldn’t think of any practical reason why there should be a different rule for departing the country.

Cedrone said the traditional rule his client is arguing for stems from a general principle that there are certain legally set aside days where, presumptively, the government can’t ask people to do stuff. Justice Sonia Sotomayor seemed to come to Cedrone’s defense in arguing an individual’s activity is tied to the government’s activity.

“Yes, there is an obligation on the alien to depart, but there’s also a responsibility tied to the motion to reopen, which is a court activity,” she said.

In Velázquez’s case, an immigration court agreed to let him depart voluntarily after denying his requests to remain in Colorado with his wife and two American-born children.

The Board of Immigration Appeals ultimately affirmed that ruling and reinstated Velázquez’s 60-day voluntary departure deadline. He was ordered to leave by Saturday, Dec. 11, 2022, or face a $3,000 civil penalty and become ineligible to cancel his removal or return to the country for at least 10 years.

Velázquez asked for his removal proceedings to be reopened, but his request was denied in part because the motion wasn’t filed until Monday, Dec. 13, 2022. The Board of Immigration Appeals said it was too late, that his 60-day voluntary departure period had expired.

In denying his appeal, the US Court of Appeals for the Tenth Circuit rejected Velázquez’s argument that the 60-day deadline carries over to the next business day when it falls on a public holiday or weekend.

The federal government urged the court to either affirm the Tenth Circuit’s decision or toss out its ruling and instruct it to dismiss the case for lack of jurisdiction. But some of the justices seemed troubled by the fact that the court didn’t agree to consider whether the appeals court had the authority to hear this dispute.

Justice Department lawyer Anthony Yang argued appeals courts only have the authority to review final orders of removal. He said Velázquez is only seeking review of the BIA order that denying his motion for reconsideration of its earlier decision denying his motion to reopen his removal proceedings.

Justice Brett Kavanaugh asked if it would be prudent for the court to send the case back to the Tenth Circuit to consider the jurisdictional question in the first instance.

Yang said the government wouldn’t object to that.

The case is Velazquez v. Garland, U.S., No. 23-929, oral argument 11/12/24.