Meza-Vallejos v. Holder

When an alien’s sixty-day voluntary departure period falls on a day in which an immigrant would be unable to “file a motion for affirmative relief with the BIA, that day does not count in the voluntary departure period if . . . the immigrant files on the first available day a motion that would either have tolled, automatically withdrawn, or otherwise affected his request for voluntary departure.”

Jose Raul Meza-Vallejos, a citizen and native of Peru, was given a final order of removal from the Board of Immigration Appeals (“BIA”) after failing to acquire relief under the Convention Against Torture (“CAT”), and was granted a sixty-day period for voluntary departure. Meza-Vallejos’s appealed the IJ’s decision and was granted an additional sixty days for voluntary departure, which ended on July 16, 2005, a Saturday. The following Monday, July 18, 2005, Meza-Vallejos “filed a motion to reopen with the BIA and an emergency request for an extension of his voluntary departure period.” The BIA denied his petition, stating that Meza-Vallejos had “filed his motion after his voluntary departure period had expired” and as such “was ineligible for adjustment of status for a period of ten years.” 8 U.S.C. § 1229c(d)(1). Meza-Vallejos appealed alleging that his motion to reopen was timely and within the ninety-day filing period statutorily provided to aliens. The Ninth Circuit held that Meza-Vallejos period of voluntary departure expired on Monday, July 18, rather than Saturday, July 16. The Court noted that this would not count as an extension of the voluntary departure period, but rather when “an immigrant cannot file a motion for affirmative relief with the BIA, that day does not count in the voluntary departure period.” Therefore, neither Saturday, July 16, nor Sunday, July 17, was counted towards Meza-Vallejos’s voluntary departure period and his motion to reopen was timely filed. PETITION GRANTED.