FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MEZA-VALLEJOS, No. 07-70638
Petitioner, Agency No.
v.
A077-105-974
ERIC H. HOLDER JR., Attorney ORDER AND
General, AMENDED
Respondent.
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2011*
Pasadena, California
Filed October 11, 2011
Amended January 20, 2012
Before: Betty B. Fletcher, Stephen Reinhardt, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge B. Fletcher
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
551
MEZA-VALLEJOS v. HOLDER 553
COUNSEL
Irving Joseph Gonzalez, Irving Joseph Gonzalez P.A., for
petitioner Jose Raul Meza-Vallejos.
554 MEZA-VALLEJOS v. HOLDER
Rachel Louise Browning and Eric Warren Marsteller, U.S.
Department of Justice, Office of Immigration Litigation,
Washington, DC, for respondent Eric H. Holder Jr.
ORDER
The opinion filed October 11, 2011, slip op. 18769, and
appearing at 660 F.3d 1083 (9th Cir. 2011), is hereby
amended as follows: Remove the paragraph beginning on slip
op. 18782 with “A hypothetical . . .” and ending on slip op.
18783 with . . . and convenience.”).”
With this amendment, the panel has voted to deny the peti-
tion for panel rehearing. The petition for panel rehearing is
DENIED. No further petitions for panel or en banc rehearing
will be entertained.
OPINION
B. FLETCHER, Circuit Judge:
Jose Raul Meza-Vallejos, a native and citizen of Peru,
seeks review of a decision by the Board of Immigration
Appeals (“BIA”) denying his motion to reopen. After entering
a final order of removal against Meza-Vallejos, the BIA
granted him a sixty-day period of voluntary departure. The
sixtieth day fell on a Saturday. Meza-Vallejos did not depart.
Rather, on the following business day — a Monday — he
filed his motion to reopen. The BIA denied the motion on the
ground that Meza-Vallejos had failed to voluntarily depart
and was thus statutorily ineligible for adjustment of status for
a period of ten years.
We hold that where, as here, a period of voluntary depar-
ture technically expires on a weekend or holiday, and an
MEZA-VALLEJOS v. HOLDER 555
immigrant files a motion that would affect his request for vol-
untary departure on the next business day, such period legally
expires on that next business day. We therefore GRANT the
petition for review and remand this case to the agency for
adjudication of the petitioner’s motion to reopen on the mer-
its.
I.
Meza-Vallejos last entered the United States on February 8,
1998 on a non-immigrant visa with authorization to stay
through May 15, 1998. He overstayed his visa and subse-
quently filed an application for political asylum, withholding
of removal, and relief under the Convention Against Torture
(CAT) in April 1999.
In his application, Meza-Vallejos alleged that he had been
a member of “an underground student organization” during
his years as a university student in Peru, and that the organiza-
tion “advocated student rights and against all communism and
totalitarianism.” He further alleged that he had been “threat-
ened by members of the guerrilla [sic] while at the University
for promoting student elections,” and that he thought he
“would be killed by the guerrilla group Sendero Luminoso”
(the Shining Path)1 if he was returned to Peru.
Following a hearing on the merits in March 2004, an immi-
gration judge (IJ) denied Meza-Vallejos’s applications for
1
Sendero Luminoso, or the Shining Path, was one of the most formida-
ble rebel movements in Latin America during the 1980s and early 1990s.
The group emerged in response to Peru’s entrenched system of race- and
class-based discrimination, which had deeply impoverished most of Peru’s
population, especially citizens of indigenous descent. The conflict between
the Shining Path and the Peruvian government led to brutal massacres of
innocent civilians. Estimates of the death toll range from at least 30,000
to 69,000. Peru’s Truth and Reconciliation Commission found that
Sendero Luminoso had carried out the majority of the political killings
which occurred between 1980 and 2000 in Peru.
556 MEZA-VALLEJOS v. HOLDER
relief but granted him voluntary departure. Meza-Vallejos
posted his voluntary departure bond on April 7, 2004. He then
appealed the IJ’s decision to the BIA. The BIA dismissed the
appeal in May 2005 and renewed the grant of voluntary
departure for an additional sixty days, through July 16, 2005
— a Saturday.
Meza-Vallejos did not file a petition for review of the
BIA’s May 2005 order.2 Instead, on Monday, July 18, 2005,
he filed a motion to reopen with the BIA and an emergency
request for an extension of his voluntary departure period. He
explained that he had married a U.S. citizen two weeks previ-
ously, and she had immediately filed a Form I-130 petition on
his behalf.
At that time, the law of our Circuit provided that “in cases
in which a motion to reopen is filed within the voluntary
departure period and a stay of removal or voluntary departure
is requested, the voluntary departure period is tolled during
the period the BIA is considering the motion.” Azarte v. Ash-
croft, 394 F.3d 1278, 1289 (9th Cir. 2005) (emphasis added),
overruled by Dada v. Mukasey, 554 U.S. 1 (2008).
In October 2005, the BIA denied the motion to reopen. It
concluded that Meza-Vallejos had filed his motion after his
voluntary departure period had expired. The Board reasoned
that “the maximum period of voluntary departure which may
be provided by an Immigration Judge or this Board at the con-
clusion of removal proceedings is 60 days,” that “there is no
legal basis for this Board to grant an extension of voluntary
departure where this Board has already provided . . . the maxi-
mum period of voluntary departure allowed,” and that “this
Board does not have the authority to further extend [Meza-
Vallejos]’s period of voluntary departure.” Because Meza-
Vallejos had failed to voluntarily depart, the BIA concluded,
2
Accordingly, the merits of Meza-Vallejos’s application for asylum,
withholding of removal, and CAT relief are not currently before us.
MEZA-VALLEJOS v. HOLDER 557
he was ineligible for adjustment of status for a period of ten
years. See 8 U.S.C. § 1229c(d)(1).3
In November 2005, Meza-Vallejos filed a timely petition
for review of the BIA’s denial of his motion to reopen. That
same month, the Ninth Circuit decided Barroso v. Gonzales,
429 F.3d 1195 (9th Cir. 2005). In Barroso, the BIA granted
the petitioner a thirty-day period of voluntary departure. Id. at
1200. Rather than depart on the thirtieth day (a Saturday),
petitioner filed a timely motion to reconsider pursuant to 8
U.S.C. § 1229a(c)(6)(B). Such motions must be filed within
thirty days of a final administrative order of removal;
“[t]herefore, the deadlines for filing Barroso’s motion to
reconsider and the expiration of Barroso’s voluntary departure
period fell on the same date: Saturday, March 22, 2003.” 429
F.3d at 1202. The BIA had recognized, however, that “[w]hen
the thirty-day deadline for filing a motion to reconsider
expires on a Saturday, the motion is due on the next business
day, which in this case was Monday, March 24, 2003.” Id.
(citations omitted). Yet neither the Department of Justice nor
the Department of Homeland Security regulations “offer any
guidance as to how to treat weekend days when they are the
last calendar day of the voluntary departure period.” Id. at
1203.
We held that “where the deadline for filing a motion to
reconsider falls on the same day as the expiration of the vol-
3
The civil penalties for failure to depart voluntarily are set forth in 8
U.S.C. § 1229c(d)(1), which provides in relevant part that
[I]f an alien is permitted to depart voluntarily under this section
and voluntarily fails to depart the United States within the time
period specified, the alien — (A) shall be subject to a civil pen-
alty of not less than $1,000 and not more than $5,000; and (B)
shall be ineligible, for a period of 10 years, to receive any further
relief under this section and sections 1229b, 1255, 1258, and
1259 of this title.
Id.
558 MEZA-VALLEJOS v. HOLDER
untary departure period, the proper solution is to apply the
same rule to both thirty-day periods.” Id. at 1204. We
explained that we were “not extending the voluntary departure
time period in contravention of INS regulations,” but rather
were “simply determining which date should be counted as
the thirtieth day.” Id. at n.18 (internal quotations and citation
omitted).
The government moved to remand Meza-Vallejos’s case to
the BIA so that the Board could reconsider his motion to
reopen in light of Barroso. That motion was granted, and sup-
plemental briefing completed. The BIA again denied Meza-
Vallejos’s motion to reopen, finding Barroso to be distin-
guishable since in that case the pertinent deadlines both fell
on the same (weekend) day. See Barroso, 429 F.3d at
1202-04. By contrast, Meza-Vallejos’s voluntary departure
period had expired prior to the end of the ninety-day period
in which he was permitted to file a motion to reopen. Because
he had not voluntarily departed within sixty days, the BIA
concluded, Meza-Vallejos was barred from seeking adjust-
ment of status. The Board further explained:
There is no need to treat the sixtieth day differently
if it happens to fall on a weekend or holiday because,
unlike a filing requirement, voluntary departure can
be accomplished by departing the United States by
land, sea, or air any day of the year. Thus, the practi-
cal reasons for extending regulatory filing deadlines
which fall on a weekend or holiday, which relate to
the normal business hours during which documents
can be properly filed, do not provide a logical basis
for extending the maximum period of voluntary
departure statutorily authorized by Congress. More-
over, Congress has not expressly or impliedly pro-
vided for such an extension in sections 240B(b) or
240B(d) of the [INA].
Meza-Vallejos timely filed this petition for review of the
BIA’s denial of his motion to reopen, relying heavily on
MEZA-VALLEJOS v. HOLDER 559
Azarte and Barroso. We have jurisdiction pursuant to 8
U.S.C. § 1252(a), and review the denial of a motion to reopen
for abuse of discretion. See, e.g., Perez v. Mukasey, 516 F.3d
770, 773 (9th Cir. 2008); Socop-Gonzalez v. INS, 272 F.3d
1176, 1187 (9th Cir. 2001) (en banc). The BIA abuses its dis-
cretion when its decision is “arbitrary, irrational, or contrary
to law.” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th
Cir. 2000). The BIA’s determination of purely legal ques-
tions, however, is reviewed de novo. See, e.g., Minasyan v.
Mukasey, 553 F.3d 1224, 1227 (9th Cir. 2009); Alali-Amin v.
Mukasey, 523 F.3d 1039, 1041 (9th Cir. 2008).
II.
A.
[1] “Voluntary departure is a discretionary form of relief
that allows certain favored aliens — either before the conclu-
sion of removal proceedings or after being found deportable
— to leave the country willingly.” Dada, 554 U.S. at 8. This
form of relief “serves the practical goals of reducing the costs
associated with deporting individuals from the United States
and providing a mechanism for illegal aliens to leave the
country without being subject to the stigma or bars to future
relief that are part of the sanction of deportation.” Azarte, 394
F.3d at 1284.
[2] Before the enactment of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
“voluntary departure was granted for generous periods of
time.” Id. In 1996, however, “Congress curtailed the period of
time during which an alien may remain in the United States
pending voluntary departure.” Dada, 554 U.S. at 9. As
explained above, where, as here, an immigrant is granted vol-
untary departure at the close of removal proceedings, the
maximum period of voluntary departure is sixty days. See 8
U.S.C. § 1229c(b)(2). “Appropriate immigration authorities
may extend the time to depart but only if the voluntary depar-
560 MEZA-VALLEJOS v. HOLDER
ture period is less than the statutory maximum in the first
instance.” Dada, 554 U.S. at 10.
“A motion to reopen is a traditional procedural mechanism
in immigration law with a basic purpose that has remained
constant — to give aliens a means to provide new information
relevant to their cases to the immigration authorities.” Azarte,
394 F.3d at 1283. “Like voluntary departure, reopening is a
judicial creation later codified by federal statute.” Dada, 554
U.S. at 12. Prior to IIRIRA, “there was no time limit for
requesting the reopening of a case due to the availability of
new evidence.” Id. at 13. IIRIRA provided the first statutory
right to a motion to reopen, see 8 U.S.C. § 1229a(c)(7), and
the implementing regulations “creat[ed] a 90-day filing period
and limit[ed] aliens to a single motion to reopen.” Azarte, 394
F.3d at 1283.
[3] Dada acknowledged that “the alien who is granted vol-
untary departure but whose circumstances have changed in a
manner cognizable by a motion to reopen is between Scylla
and Charybdis.” 554 U.S. at 18. This is so because the alien
can leave the United States in accordance with the
voluntary departure order; but, pursuant to regula-
tion, the motion to reopen will be deemed with-
drawn. See 8 C.F.R. § 1003.2(d); see also 23 Fed.
Reg. 9115, 9118, final rule codified at 8 C.F.R. § 3.2
(1958). Alternatively, if the alien wishes to pursue
reopening and remains in the United States to do so,
he or she risks expiration of the statutory period and
ineligibility for adjustment of status, the underlying
relief sought. See 8 U.S.C. § 1229c(d)(1) (2000 ed.,
Supp. V).
Id. To alleviate such difficulties, the Supreme Court inter-
preted the INA “to preserve the alien’s right to pursue reopen-
ing while respecting the Government’s interest in the quid pro
quo of the voluntary departure arrangement.” Id. at 19. It held
MEZA-VALLEJOS v. HOLDER 561
“that, to safeguard the right to pursue a motion to reopen for
voluntary departure recipients, the alien must be permitted to
withdraw, unilaterally, a voluntary departure request before
expiration of the departure period, without regard to the
underlying merits of the motion to reopen.” Id. at 21. In so
holding, Dada overruled our rule “that the filing of a motion
to reopen within the voluntary departure period automatically
stayed the running of that period while the BIA was consider-
ing the motion.” Nevarez Nevarez v. Holder, 572 F.3d 605,
609 (9th Cir. 2009) (citing Barroso and Azarte).4
B.
Meza-Vallejos contends that his motion to reopen was
timely since it was filed on the Monday after his voluntary
departure period had expired, but within the ninety-day period
provided for filing such motions. Since the BIA does not
receive motions to reopen on weekends, he argues, his volun-
tary departure deadline should have been extended to that
Monday.
4
Following Dada, the Executive Office of Immigration Review
(“EOIR”) issued a rule that provides that “[t]he filing of a motion to
reopen or reconsider prior to the expiration of the period allowed for vol-
untary departure has the effect of automatically terminating the grant of
voluntary departure, and accordingly does not toll, stay, or extend the
period allowed for voluntary departure.” 8 C.F.R. § 1240.26(e)(1). This
rule applies only prospectively, however. Whether, and how, Dada applies
retroactively remains an open question. In Nevarez Nevarez, we remanded
this question to the BIA to decide in the first instance. 572 F.3d at 610;
see id. at 609 (“The Court did not consider how its opinion [in Dada]
would apply to aliens in circuits like ours whose voluntary departure had
been automatically stayed during the pendency of their motions to
reopen.”). On remand, the BIA concluded that, since the petitioners “were
unaware that they had a unilateral right to withdraw their request for vol-
untary departure,” the BIA would “deem the filing of their motion to
reopen, followed by their election to remain to pursue that motion, as an
expression of their desire to exercise their unilateral right to withdraw
their request for voluntary departure.” See http://dojvll.gtwy.dcn/Biadec/
4872406.pdf (Mar. 12, 2010).
562 MEZA-VALLEJOS v. HOLDER
In response, the government contends that the BIA may
properly deny a motion to reopen if such motion is filed after
the expiration of a petitioner’s voluntary departure period.
See, e.g., Granados-Oseguera v. Mukasey, 546 F.3d 1011,
1015 (9th Cir. 2008) (per curiam) (“There is no dispute that
Oseguera’s motion to reopen was filed after the period for
voluntary departure had elapsed. Accordingly, the BIA was
not simply correct to deny the motion; it was compelled to do
so by the operation of 8 U.S.C. § 1229c(d)(1) . . . .”). The
government further asserts that, here, the petitioner filed his
motion to reopen on the sixty-second day following the BIA’s
grant of voluntary departure. The government argues that nei-
ther Azarte nor Barroso are apposite, since in both those cases
the petitioner moved for relief before the expiration of his vol-
untary departure period. Although the government’s brief,
filed in 2007, does not discuss Dada, that case may be distin-
guished for the same reason. See Dada, 554 U.S. at 6-7 (“Two
days before the expiration of [petitioner’s voluntary departure
period], petitioner sought to withdraw his request for volun-
tary departure. At the same time he filed with the BIA a
motion to reopen removal proceedings . . . .” (emphasis
added)).
The threshold question before us, therefore, is whether
Meza-Vallejos’s period of voluntary departure expired on Sat-
urday, July 16 (the sixtieth day following the BIA’s final
order) or if, instead, this period expired on Monday, July 18,
coinciding with his filing of a renewed motion to reopen with
the Board.
As noted, the plain text of the statute governing grants of
voluntary departure following termination of removal pro-
ceedings limits the voluntary departure period to sixty days.
8 U.S.C. § 1229c(b)(2) (“Permission to depart voluntarily
under this subsection shall not be valid for a period exceeding
60 days.”). Likewise, the implementing regulations expressly
state that “[i]n no event can the total period of time, including
MEZA-VALLEJOS v. HOLDER 563
any extension, exceed . . . 60 days . . . .” 8 C.F.R.
§ 1240.26(f).
In its post-remand denial of Meza-Vallejos’s motion to
reopen, the BIA explained that “[t]he day following the final
administrative order granting voluntary departure is the first
day [of the voluntary departure period] and the sixtieth day
following the final administrative order granting voluntary
departure is the sixtieth day.” Further, as noted, the BIA rea-
soned that “[t]here is no need to treat the sixtieth day differ-
ently if it happens to fall on a weekend or holiday because,
unlike a filing requirement, voluntary departure can be
accomplished by departing the United States by land, sea, or
air any day of the year.”
The BIA has not opined on this question in a precedential
decision. Accordingly, its interpretation is entitled to Skid-
more, not Chevron, deference. See, e.g., Choin v. Mukasey,
537 F.3d 1116, 1120 (9th Cir. 2008) (“When the BIA
advances its interpretation of an ambiguous statute in an
unpublished decision, that interpretation is not entitled to
Chevron deference. Unpublished BIA decisions are instead
given Skidmore deference, entitling the interpretation to a
respect proportional to its power to persuade.” (internal quota-
tions and citations omitted)).
The BIA’s logic is not unreasonable — it is undisputed that
an alien who is granted voluntary departure can leave the
United States any day of the week, including a weekend or a
holiday. On the other hand, the consequence of the BIA’s rea-
soning is effectively to deprive an alien of the final day (or
two) of his sixty-day period for voluntary departure, where, as
here, the alien wishes to file a motion to reopen and the last
day (or two) of his voluntary departure period falls on a week-
end.
[4] Yet the clear language of the voluntary departure stat-
ute and implementing regulations establishes that an alien
564 MEZA-VALLEJOS v. HOLDER
granted voluntary departure is entitled to a maximum period
of sixty days, and Meza-Vallejos himself was in fact granted
this full period. Moreover, as the government concedes, both
the statute and the regulations “are silent as to how to handle
a voluntary departure period that ends on a weekend.”
In Barroso we relied on an earlier Ninth Circuit opinion,
Salvador-Calleros v. Ashcroft, 389 F.3d 959 (9th Cir. 2004).
There, the final day of the petitioner’s voluntary departure
period fell on a Saturday. Id. at 962. The following Monday,
petitioner timely filed a petition for review with the Ninth Cir-
cuit, along with a motion for a stay of removal. Id.
[5] Salvador-Calleros held that, because “Congress has
[not] specified a method of counting days in a statute govern-
ing a particular procedure,” Federal Rule of Appellate Proce-
dure 26(a)5 governed the computation of the expiration date
of petitioner’s voluntary departure period. Id. at 964; see also
Barroso, 429 F.3d at 1204 (discussing Salvador-Calleros).
The government argues that the application of Rule 26(a)
was sensible in Salvador-Calleros because that case involved
a petition for review properly before us. Since the Ninth Cir-
cuit in Salvador-Calleros “needed to determine the end-date
of the alien’s voluntary departure in the first instance, without
any agency guidance on the matter from the Board,” the gov-
ernment argues, it properly “turned to the Federal Rules of
Appellate Procedure, which govern, inter alia, how time peri-
ods should be calculated by” our court. By contrast, the BIA
has opined on the computation of the voluntary departure
period in this case, which did not coincide with a filing dead-
line relevant to either BIA or Ninth Circuit procedures.
5
Under Rule 26(a), Saturdays and Sundays are counted within the rele-
vant period, unless the last day of said period falls on a Saturday or Sun-
day. See FED. R. APP. P. 26(a)(1)(c) (“include the last day of the period,
but if the last day is a Saturday, Sunday, or legal holiday, the period con-
tinues to run until the end of the next day that is not a Saturday, Sunday,
or legal holiday.”).
MEZA-VALLEJOS v. HOLDER 565
Again, the government’s position is not unreasonable. We
could certainly hold, as the BIA did, that those in Meza-
Vallejos’s position must file their motions to reopen on the
last business day of their voluntary departure period, even if
that falls on the fifty-eighth or fifty-ninth day of that period.
Logically, there are only two solutions to the problem of a
voluntary departure period that ends on a weekend: either
shorten the period (which the BIA would have us do) or
lengthen it (as Meza-Vallejos urges).6
[6] Accordingly, we hold that, where the last day of a
period of voluntary departure falls on a day on which an
immigrant cannot file a motion for affirmative relief with the
BIA, that day does not count in the voluntary departure period
if, as here, the immigrant files on the first available day a
motion that would either have tolled, automatically with-
drawn, or otherwise affected his request for voluntary depar-
ture. We are not extending the voluntary departure period, but
rather determining on which day the sixtieth day falls. For
Meza-Vallejos, this means that neither Saturday, July 16 nor
Sunday, July 17 is counted in his voluntary departure period.
As a result, his motion to reopen was timely filed on Monday,
July 18.
[7] Since the BIA denied Meza-Vallejos’s motion to
reopen solely on the ground that he overstayed his period of
voluntary departure, we GRANT the petition for review and
REMAND to the BIA with instructions to consider the merits
of the motion to reopen. We award petitioner his costs on
appeal.
6
This may be a problem of limited duration. It may be that the BIA will
permit electronic filing in the future, presenting the possibility that
motions might be “filed” on weekend days.