The Supreme Court as composed June 30, 2022 to present. Credit: Fred Schilling, Collection of the Supreme Court of the United States.
In yet another blow to immigration law enforcement, the Supreme Court today ruled 5–4 in Monsalvo Velázquez v. Bondi that illegal aliens granted voluntary departure under federal immigration law can remain in the United States past their court-ordered departure deadline—if that deadline happens to fall on a weekend or legal holiday.
Justice Neil Gorsuch authored the majority opinion, joined by Justices Roberts, Sotomayor, Kagan, and Jackson, effectively rewriting the meaning of a “60-day” voluntary departure period to accommodate the convenience of deportable individuals, not the rule of law.
At the center of the case was Hugo Monsalvo Velázquez, a Mexican national who entered the U.S. illegally nearly two decades ago and was ordered to leave within 60 days.
His departure deadline fell on a Saturday, but instead of leaving, he filed a motion to reopen his case on the following Monday.
Both the Board of Immigration Appeals and the Tenth Circuit Court of Appeals ruled that he had missed his deadline. But the Supreme Court has now overruled them, injecting ambiguity into what was once a firm immigration deadline.
In a strong dissent, Justice Clarence Thomas—joined by Justices Alito, Kavanaugh, and Barrett—blasted the majority for stretching the law beyond its clear terms, arguing that “60 days means 60 days,” not “whenever the alien gets around to it.”
“The merits question in this case—whether petitioner left the United States within “60 days” after October 12, 2021— is straightforward,” Alito wrote in his opinion.
The 60th ‘day’ after October 12, 2021, was Saturday, December 11, 2021. And petitioner failed to depart the country by that Saturday. … There is no justification for [a 2-day extension],”
He continued, “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,” he added.
“The relevant statutory provision, 8 U.S.C. §1229c(b)(2), sets a deadline, and no matter how such a deadline is calculated, there will always be those who happen to miss it by a day or so. … [S]ympathy for petitioner cannot justify the Court’s decision.”
The ruling relies on regulatory interpretations going back to the 1950s, which the majority used to argue that deadlines should be extended past weekends or holidays.
“When Congress adopts a new law against the backdrop of a ‘longstanding administrative construction,’ the Court generally presumes the new provision works in harmony with what came before,” Gorsuch wrote in his opinion.
“Since at least the 1950s, immigration regulations have provided that when calculating deadlines, the term ‘day’ carries its specialized meaning by excluding Sundays and legal holidays (and later Saturdays) if a deadline would otherwise fall on one of those days. Congress enacted §1229c(b)(2) as part of §304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) against this consistent regulatory backdrop.
“The government concedes that other deadlines in the same section of IIRIRA, such as deadlines for motions to reopen or reconsider, are subject to this rule. The identical term “days” should be given the same meaning throughout §304, especially when the provisions were enacted at the same time in the same section of the law.”
But critics say the Court is conflating administrative filing rules with statutorily mandated deadlines intended to expedite removals—not delay them.
The implications of this ruling are far-reaching. It opens the door for countless future immigration cases where deadlines could be manipulated or contested based on technicalities, undermining the already overwhelmed immigration enforcement system.
You can read the ruling here.
This story has been updated with additional information.
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