WASHINGTON — During oral arguments Tuesday, Supreme Court justices participated in a heated debate regarding the status of Hugo Abisaí Monsalvo Velázquez, an undocumented immigrant seeking to avoid deportation.
Monsalvo Velázquez’s attorney contended that his petition for cancellation of removal, which would allow him to stay in the country, should be considered, even though it was filed the first business day after his court-mandated 60-day voluntary departure period expired on a Saturday.
Voluntary departure is a benefit granted to undocumented immigrants to leave the country as an alternative to being forcefully removed. Immigrants must voluntarily leave the U.S. within 60 or 120 days, pay for fees and their own passage to the country of their choice and check in with U.S. government officials there upon arrival.
In his first experience with voluntary departure in 2019, an immigration judge told Monsalvo Velázquez that his Saturday voluntary departure deadline would be extended to the next business day, contradicting the rulings of the Board of Immigration Appeals and the 10th Circuit.
While the deadline may be litigated as a technical inconsistency, for Monsalvo Velázquez, the outcome could have severe consequences.
After immigrating to the U.S. as a teenager in 2004, Monsalvo Velázquez has spent nearly two decades in the Denver area, where he started his own business and had two U.S. citizen children with his wife, Nataly.
If the decision goes against him, Monsalvo Velázquez could be forced to leave the U.S. and would be ineligible for relief for the next 10 years.
At the lectern, petitioner’s counsel, Gerard Cedrone, argued that the outcome of the case hinges on what people would have considered to constitute a “day” at the time of the statute’s passing in 1996.
“If Congress had meant to deviate from that traditional understanding, it would’ve said so,” Cedrone said.
A majority of the justices appeared to support the petitioner’s argument that the filing date could be considered as Monday. However, they also flagged that there was no reason why Monsalvo Velázquez could not have departed the country on a Saturday or Sunday, as travel is not a government-related activity that must occur on a business day.
The government argued that whether Monsalvo Velázquez intended to stay past his departure date was a separate issue that would determine if he faced a 10-year reentry ban. But that wasn’t the issue the case was meant to address, which focused on the rollover period to the next business day.
In his argument, Anthony Yang, assistant to the Solicitor General, introduced a new line of reasoning that had not been presented at the circuit court level or included in his brief prior to the case—something that appeared to catch both the justices and opposing counsel by surprise.
“This is not the question we granted cert on,” Justice Brett Kavanaugh said, referring to whether the court had jurisdiction over the case. He then asked Yang if the prudent course of action would be to vacate the ruling and remand the case to the lower courts.
Litigators disputed whether the legal tradition of extending weekend and holiday deadlines to the next business day applies to voluntary departures, as it does for filing appeals or motions of cancellation.
What is voluntary departure?
Although it may seem counterintuitive, voluntarily leaving the United States provides long-term benefits for undocumented immigrants, including the possibility for later readmission and readjustment of status without suffering severe deportation penalties.
To obtain voluntary departure status, immigrants must have been physically present in the U.S. for at least one year preceding the notice to appear, are a person of “good moral character” and established evidence that they mean to depart the country.
According to data from Syracuse University’s Transactional Records Access Clearinghouse, 35.7% of completed asylum cases have resulted in deportation and voluntary departure orders as of May 2024.
Potential Impacts
Deadlines have not been contentious in immigration court at all, according to appellate specialist and practicing attorney Thomas Ogden.
Ogden said the case’s litigation is an outlier because it relies on the statute’s text, which does not expressly include a business day clause, rather than the usual practices of immigration courts.
“The Tenth Circuit decided to read a strict textualist approach on the statute. So, that caused a split, essentially, between the circuits,” Ogden said.
Advocates weighing in on the case reminded the Court of the severe consequences that could arise from interpreting the case with a textualist approach. Professor Kate Melloy Goettel, a clinical law professor at the University of Iowa who helped write the brief for the American Immigration Lawyers Association, pointed out that immigration law upholds the principle of lenity, a concept borrowed from criminal law.
“Deportation is so drastic for the non-citizens who are subject to it that, just like criminal law, we should construe statutes in a way that doesn’t create harsh and severe results,” Goettel said.
Still, some experts, including Bill Hing, a professor of law and migration studies at the University of San Francisco, cautioned against overstating the case’s broader impact. Hing argues that because the case is so technical, it is unlikely to affect a large number of people, particularly those who may be targeted by mass deportation efforts under the incoming Trump administration that do not have the same long-term connections in the U.S. as Monsalvo Velázquez.
“I think there will be a lot of misleading headlines on this case,” Hing said. “It technically doesn’t apply to those thousands of people that Trump is going to put in proceedings because they haven’t had their first hearing yet.”
However, Goettel disagreed with Hing’s assessment, believing the case could have broader implications for future immigration rulings.
“Some of the arguments that are being made in this case really go to the heart of how we’re going to construe our laws, and whether we’re going to do so with a degree of fairness, a degree of clarity, and with an eye towards not deporting whenever possible,” Goettel said.
A decision in this case is expected at the end of the current term early next summer.
