On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-105-974
The opinion of the court was delivered by: B. Fletcher, Circuit Judge:
Submitted March 10, 2011*fn1 Pasadena, California
Before: Betty B. Fletcher, Stephen Reinhardt, and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge B. Fletcher
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 departure technically expires on a weekend or holiday, and an immigrant files a motion that would affect his request for voluntary 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 merits.
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 subsequently 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 organization "advocated student rights and against all communism and totalitarianism." He further alleged that he had been "threatened 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)*fn2 if he was returned to Peru.
Following a hearing on the merits in March 2004, an immigration judge (IJ) denied Meza-Vallejos's applications for 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.*fn3 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 ...