Opposition Brief — Stone v. INS

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No. 93-1199 | APR 2 1994

FE OF THE CLERK

In the Supreme Court of the Tnites State

OCTOBER TERM, 1993 7

MARVIN STONE, PETITIONER

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT

DREW'S. DAys,_ III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

MARK C. WALTERS

LISA C. DORNELL

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

“ON

QUESTION PRESENTED

Whether the filing of a motion to reopen or reconsider

a final order of deportation tolls the time for seeking

judicial review of that order.

TABLE OF CONTENTS

Page

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LATTA 1

LTD 2

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TABLE OF AUTHORITIES

Cases:

Akrap v. INS, 966 F.2d 267 (7th Cir. 1992) ................. 9, 10

Alleyne v. INS, 879 F.2d 1177 (3d Cir. 1989) ................. 8,9

Attoh v. INS, 606 F.2d 1273 (D.C. Cir. 1979) ............... 9

Bauge v. INS, 7 F.3d 1540 (10th Cir. 19993) .................. 7, 10

Chu v. INS, 875 F.2d 777 (9th Cir. 1989) ................00. 7

Fayazi-Azad vy. INS, 792 F.2d 873 (9th Cir. 1986) ....... 7

Fleary v. INS, 950 F.2d 711 (11th Cir. 1992) ................ 9, 10

Foti v. INS, 375 U.S. 217 (1963) ........ccccccccsssecerereeeeeeees S

Hyun Joon Chung v. INS, 720 F.2d 1471 (9th Cir. 1983),

cert. denied, 467 U.S. 1216 (1984) 0.0... cccccceeeeeeeeeeeees ]

ICC vy. Brotherhood of Locomotive Engineers, 482 U.S.

EES ELATED 6, 7

INS v. Doherty, 112 S. Ct. 719 (1992) .0..........ccccccceeeeeees 7

Ogio v. INS, 2 F.3d 959 (9th Cir. 1993) 2.0.00... 7, 9, 10

Pierre v. INS, 982 F.2d 418 (5th Cir. 1991) .................. 9

White v. INS, 6 F.3d 1312 (8th Cir. 1993) .......0....0...000. 7,9, 10

Statutes and regulation:

Immigration Act of 1990, Pub. L. No. 101-649, 104

Stat. 4978:

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DB HRs IED ccccccccccccsscccccccccccccccscccscocscess 4,8

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(III)

Statutes and regulation—Continued: Page

Immigration and Nationality Act of 1952, 8 U.S.C. 1101

et seq.:

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BD CAE. GREED CRD ceccccccccscsccscccccsscccesscccessess 6, 8, 9, 10

8 U.S.C. 1105a(a) (1988 & Supp. IV 1992) ............... 4, 6,8

8 U.S.C. 1105a(a)(6) (Supp. [IV 1992) ................... 4, 8, 9, 10

8 U.S.C. 1254(a) (1988 & Supp. IV 1992) .................. 2,3

8 8 OF) ee 8

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1199

MARVIN STONE, PETITIONER

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A11)

is not yet reported. The decisions of the Board of Immi-

gration Appeals (Pet. App. B1-B15, B16-B19) are unre-

ported.

JURISDICTION

The judgment of the court of appeals was entered on

January 6, 1994. The petition for a writ of certiorari was

filed on January 26, 1994. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Petitioner is a citizen of Canada who entered the

United States as a visitor in 1977 and has resided here

since that time. In 1983, he was convicted of mail fraud

by a federal court. After the conviction was affirmed on

appeal, he served 18 months of a three-year sentence.

See Pet. App. A2, B2-B3.'

2. Following a hearing, an immigration judge deter-

mined that petitioner was deportable from the United

States as an alien who was admitted as a visitor in 1977

and remained longer than permitted. The immigration

judge also denied petitioner’s application for suspension

of deportation under 8 U.S.C. 1254(a) (1988 & Supp. IV

1992), concluding that petitioner was statutorily ineligi-

ble for that relief because his incarceration on the mail

fraud charge prevented him from satisfying the statu-

tory requirement of good moral character. See Pet. App.

A3.

3. Petitioner appealed to the Board of Immigration

Appeals, which dismissed his appeal on July 26, 1991.

Pet. App. B1-B15. The Board first affirmed the immigra-

tion judge’s finding of deportability. It noted that appli-

cable regulations at the time of petitioner’s entry limited

the admission of nonimmigrant visitors to a period of six

months, unless the visitor obtained an extension.

Because petitioner never obtained an extension, the

Board held that he was deportable. /d. at B5-B9.

' The statement by the Board of Immigration Appeals (Pet.

App. B2) that petitioner entered in 1978 appears to be erroneous.

The Board later in its opinion relied on petitioner’s admission that

he entered in 1977. Id. at B4; see id. at A2 (statement of court of

appeals that petitioner entered in 1977). Tae precise year of entry

has no bearing on petitioner’s immigration status.

The Board also affirmed the immigration judge’s con-

clusion that petitioner was not eligible for suspension of

deportation. Suspension of deportation is available only

to aliens “of good moral character,” 8 U.S.C. 1254(a)

(1988 & Supp. IV 1992), and 8 U.S.C. 1101(f)(7) bars a

finding of good moral character for an individual

“confined, as a result of conviction, to a penal institution

for an aggregate period of one hundred and eighty days

or more” during the seven years preceding his

application for suspension. Because it was conceded that

petitioner was confined for at least 18 months during

that period, he was ineligible for suspension of

deportation. Pet. App. B11-B12. In the alternative, the

Board held that petitioner would not be eligible for

suspension of deportation because he had “offered no

evidence of extreme hardship.” /d. at R14. Finally, the

Board concluded that even if petitioner were eligible for

suspension of deportation, it would deny relief in the

exercise of discretion, explaining that petitioner

previously had been convicted of mail fraud and that the

record indicated that there were outstanding arrest

warrants in Canada on charges of theft and fraud in that

country. /d. at B14-B15.

4. Petitioner filed a motion for reconsideration, which

the Board denied on February 3, 1993. Pet. App. B16-B19.

The Board explained that petitioner’s motion

has presented no new precedent decisions which have

any bearing on our prior decision in this case nor has

[hje submitted any legal authorities which the Board

may have inadvertently overlooked. Moreover, both

of |petitioner]’s assertions in his motion to recon-

sider were adequately addressed by the Board in its

July 26, 1991, decision. Accordingly, we will deny the

motion as frivolous.

Id. at B18.

5. In early 1993, petitioner filed a petition for review

in the court of appeals.” The court of appeals dismissed

the petition for review in part and denied it in part. Pet.

App. Al-A11.

a. The court of appeals dismissed petitioner’s chal-

lenge to the July 26, 1991, order of the Board. Pet. App.

A4-A9. The court explained that 8 U.S.C. 1105a(a) (1988

& Supp. IV 1992) requires a petition for review to be filed

within 90 days of the date of the Board’s order, and peti-

tioner’s petition for review was filed more than 90 days

after July 26, 1991. The court noted that before 1990

some courts of appeals had held that the filing of a motion

to reopen or reconsider a final order of deportation would

toll the time for filing a petition for review of the order.

Pet. App. A5-A7. The court concluded, however, that a

1990 amendment to Section 1105a(a)* made that holding

untenable, because the amendment contemplated sepa-

rate petitions for review of the underlying order of de-

portation and of the order denying a motion for reopening

or reconsideration. /d. at A8-A9. Accordingly, the court

cencluded that petitioner’s motion for reconsideration

did not toll the time for filing a petition for review

challenging the Board’s 1991 opinion, and it dismissed

2 The court of appeals and the petition indicate that the petition

for review was filed on March 25, 1993. See Pet. 6; Pet. App. A4.

The docket sheet in the court of appeals, however, indicates that

petitioner’s opening brief was filed on that date, and that the

petition for review actually was filed on February 16, 1993. The

difference is not important, because both dates are more than 90

days after the initial decision of the Board and less than 90 days af-

ter its rejection of petitioner’s motion for reconsideration.

3 See 8 U.S.C. 1105a(a)(6) (Supp. IV 1992) (added by Section

545(b)(3) of the Immigration Act of 1990, Pub. L. No. 101-649, 104

Stat. 5065).

his petition for review as untimely as to that order. /d.

at AY.

The court of appeals also rejected petitioner’s con-

tention that the government should be estopped from

relying on the jurisdictional bar because he allegedly

received erroneous advice from government employees

regarding the procedure for seeking judicial review.

Pet. App. A9-A10. The court explained that estoppel

would be available only if petitioner could prove

“affirmative misconduct” by the government. In the

court’s view, petitioner had not established affirmative

misconduct because the claim, at most, was that peti-

tioner “(who was trained as a lawyer himself) may have

been given imperfect legal advice on an area of the law

that can fairly be said to have been unsettled.” Jd. at A9-

Al0.

b. Because petitioner’s petition for review was filed

within 90 days of the Board’s denial of his motion for re-

consideration, the court of appeals exercised jurisdiction

over that portion of the petition for review. Pet. App.

A10-A1l. The court denied petitioner’s challenge to the

denial of his motion for reconsideration, however, ex-

plaining that “we fully agree with the Board’s character-

ization of the motion as ‘frivolous.’” /d. at A11.

ARGUMENT

Petitioner urges the Court to use this case to resolve

a conflict in the circuits on the question whether the fil-

ing of a motion to reopen or reconsider tolls the time for

seeking judicial review of a final order of deportation.

Pet. 7-11. Although we believe the court of appeals

correctly rejected petitioner’s argument, petitioner is

correct in asserting that the courts of appeals are in

conflict on that question. Accordingly, we agree with

petitioner that plenary review by this Court is

warranted.

1. Under 8 U.S.C. 1105a(a) (1988 & Supp. IV 1992),

aliens who are not aggravated felons may file petitions in

the court of appeals for review of “final orders of deporta-

tion” no later than 90 days after the Board’s issuance of

the order.’ Because Section 1105a(a) provides that the

filing of such a petition is the “sole and exclusive proce-

dure” for securing review of such orders, and because

Section 1105a(c) imposes an express requirement that

the alien exhaust available administrative remedies, the

courts of appeals have jurisdiction only over challenges

to final orders of deportation.

As we discuss below, some courts of appeals have con-

cluded that an order of deportation is not final if the alien

has filed a motion to reopen or reconsider the order.

That conclusion is consistent with the treatment of

motions to reopen or reconsider in other settings. See,

e.g., ICC v. Brotherhood of Locomotive Engineers, 482

U.S. 270, 284-285 (1987). Under that approach, the time

for filing such a petition would not commence to run

until the Board disposed of the pending motion.”

4 The Act formerly permitted six months to file a petition for

review, 8 U.S.C. 1105a(a) (1988), but the time period was shortened

by Section 545(b)(1) of the Immigration Act of 1990, Pub. L. No.

101-649, 104 Stat. 5065. The shortened time period applies to all

final orders entered on or after January 1, 1991. 1990 Act

§ 545(g)(4), 104 Stat. 5067. That provision applies to this case be-

cause petitioner’s final order of deportation was entered on July

26, 1991.

5 Our view is not in all cases adverse to the interests of the

alien. When an alien seeks prompt review of the decision of the

Board, even though he has filed a motion to reopen or reconsider,

our view allows the alien to do so, whereas the contrary view bars

the alien from obtaining review until the Board disposes of the

In our view, that process is not conducive to orderly

administration of the immigration laws, because it is

likely to lead to lengthy delays between the Board’s en-

try of final orders of deportation and review by the

courts of appeals of those orders. Because a challenge to

the Board’s initial order is considerably more likely to

raise significant issues than any challenge to the

Board’s denial of a motion to reopen or reconsider,® sig-

nificant delay in the judicial review of the initial order is,

as a general matter, likely to slow the overall disposition

of deportation proceedings.’ In light of the “fundamental

motion to reopen or reconsider. See, e.g., Ogio v. INS, 2 F.3d 959,

960 (9th Cir. 1993) (dismissing petition for review filed while mo-

tion to reconsider was pending before Board, even though both

INS and alien argued that court of appeals had jurisdiction); Chu

v. INS, 875 F.2d 777, 779-780 (9th Cir. 1989) (dismissing petition

filed by alien while motion to reopen or reconsider was pending

before Board); Fayazi-Azad v. INS, 792 F.2d 873, 874 (9th Cir.

1986) (same). The significant backlog of cases before the Board

also makes it relatively onerous to force an alien to wait for the

Board’s disposition of a motion to reopen or reconsider before seek-

ing judicial review of the underlying order. See, e.g., Pet. App. A7

(noting that “it took the Board of Immigration Appeals more than

17 months to reject as frivolous the motion for reconsideration filed

here”).

® See INS v. Doherty, 112 S. Ct. 719, 724 (1992) (explaining that

motions to reopen and reconsider “derive solely from regulations

promulgated by the Attorney General,” and that “the Attorney

General has ‘broad discretion’ to grant or deny such motions”); see

also Brotherhood of Locomotive Engineers, 482 U.S. at 277-281

(discussing general principles governing judicial review of admin-

istrative denials of motions to reconsider).

7 See Bauge v. INS, 7 F.3d 1540, 1542 (10th Cir. 1993) (“If a

motion for reconsideration were to render an order nonfinal, peti-

tioners would be in a position to delay deportation for a significant

period of time.”); White v. INS, 6 F.3d 1312, 1316 (8th Cir. 1993)

(under rule that allows aliens to toll time for filing petition for re-

purpose” this Court has discerned in the jurisdictional

framework set out in Section 1105a—to “abbreviate the

process of judicial review of deportation orders in order

to frustrate certain practices * * * whereby persons

subject to deportation were forestalling departure by

dilatory tactics in the courts,” Foti v. INS, 375 U.S. 217,

224 (1963)—we submit that the courts of appeals should

have authority to review a final order of deportation even

if the alien has filed a motion to reopen or reconsider.

Accordingly, the filing of such a motion should not toll

the 90-day (or 30-day) period for seeking judicial review.”

Our understanding of the proper interpretation of Sec-

tion 1105a(a) is bolstered considerably by the 1990

amendment that added a new paragraph (6) to Section

1105a(a).° Paragraph (6) states: “[W]henever a peti-

tioner seeks review of an order under this section, any

review sought with respect to a motion to reopen or

reconsider such an order shall be consolidated with the

review of the order.” In our view, Paragraph (6) rests on

the assumption that a court of appeals would have juris-

view by filing motion to reopen, “there apparently is nothing to

keep an alien from filing such motions ad infinitum”), Alleyne v.

INS, 879 F.2d 1177, 1181 (3d Cir. 1989) (“In the immigration con-

text, Congress has determined that the potential for abusive ap-

peals outweighs efficiency concerns.”).

8 Governing regulations specifically provide that the filing of a

motion to reopen or reconsider an order of the Board shall not

serve to stay the execution of the Board’s decision. 8 C.F.R. 3.8(a).

% The provision was added by Section 545(b)(3) of the Immigra-

tion Act of 1990, Pub. L. No. 101-649, 104 Stat. 5065. Like the al-

teration of the period for filing a petition for review discussed in

note 4, supra, Section 1105a(a)(6) applies to all final orders entered

on or after January 1, 1991. 1990 Act § 545(g)(4), 104 Stat. 5067.

Those provisions apply to this case because petitioner’s final order

of deportation was entered on July 26, 1991.

diction over a petition for review of an underlying order

of deportation while a motion to reopen or reconsider was

pending. If the court of appeals did not have jurisdiction

over such a petition, there would be nothing to consoli-

date with the petition seeking review of the Board’s dis-

position of the motion to reopen or reconsider, because

the alien would file a single petition seeking review of

both orders when the Board disposed of any motion to re-

open or reconsider. See Pet. App. A8; Bauge v. INS, 7

F.3d 1540, 1542 (10th Cir. 1993); White v. INS, 6 F.3d

1312, 1317 (8th Cir. 1993); Akrap v. INS, 966 F.2d 267,

270-271 (7th Cir. 1992). But see Ogio v. INS, 2 F.3d 959,

960 (9th Cir. 1993).

2. As the court of appeals pointed out (Pet. App. A5-

A6), the courts of appeals that considered the question

before the 1990 amendment were deeply divided. Com-

pare, e.g., Alleyne v. INS, 879 F.2d 1177, 1181 (3d Cir.

1989) (time to file petition for review not tolled), with,

e.g., Hyun Joon Chung v. INS, 720 F.2d 1471, 1473-1474

(9th Cir. 1983) (time to file petition for review tolled),

cert. denied, 467 U.S. 1216 (1984); Fleary v. INS, 950 F.2d

711, 712-713 (11th Cir. 1992) (same).”®

There also is a conflict among the courts that have

considered the question in cases arising since the 1990

amendment to Section 1105a(a). A majority of those

courts have relied on the consolidation provision in the

1 See also Attoh v. INS, 606 F.2d 1273, 1275 n.15 (D.C. Cir.

1979) (time to file petition for review tolled only by good faith mo-

tions to reopen or reconsider); Pierre v. INS, 932 F.2d 418, 420-421

(5th Cir. 1991) (same). The Eighth Circuit expressly rejected that

rule based on its view that “it is well beyond the scope of our role

under the Immigration and Nationality Act (INA) as described by

Congress to determine whether an alien has filed a motion to re-

open or reconsider in ‘good faith’ in order to decide if we have ju-

risdiction.” White, 6 F.3d at 1314.

new paragraph (6) of Section 1105a(a) to support the

conclusion that a motion to reopen or reconsider does not

toll the time to file a petition for review. See Pet. App.

A8 (“Whatever the law may have been previously, we do

not believe that the Ninth Circuit approach is consistent

with the statute as amended in 1990.”); Bauge, 7 F.3d at

1541-1542 (10th Cir. 1993); White, 6 F.3d at 1313-1317 (8th

Cir. 1993); Akrap, 966 F.2d at 269-271 (7th Cir. 1992) (“In

our view, the 1990 addition of Section [1105a(a)(6)] has

put to rest any conflict that had previously existed on

that issue.”).

The Ninth Circuit, on the other hand, recently reaf-

firmed its view that a motion to reopen or reconsider

tolls the time for filing a petition for review. Ogio, 2 F.3d

at 960-961. In the opinion in that case, the Ninth Circuit

acknowledged that the Seventh Circuit had relied on the

1990 amendment to Section 1105a to justify a different

result, but concluded that it was appropriate to adhere to

the view it had articulated in Hyun Joon Chung. 2 F.3d

at 960.'' Because the Ninth Circuit has declined to

retreat from its view notwithstanding the acknowledged

1! Although the opinion of the Eleventh Circuit in Fleary v.

INS, 950 F.2d 711 (1992), stated that the filing of a timely motion

to reopen or reconsider tolls the time for filing a petition for re-

view even after the enactment of Section 1105a(a)(6), 950 F.2d at

713, that statement was not necessary to the decision. First,

Fleary involved a final order of deportation issued on May 15,

1990, as to which Section 1105a(a)(6) did not apply. See note 9,

supra. Second, the Eleventh Circuit actually denied relief in

Fleary, on the ground that the alien had not filed a timely petition

for review of the motion to reopen after the Board denied that mo-

tion. 950 F.2d at 712-713. Accordingly, the Eleventh Circuit’s dis-

cussion of how it would dispose of a\ case in which an alien filed a

single petition seeking review of a final order of deportation and of

a subsequent motion to reopen or reconsider was entirely hypo-

thetical.

circuit conflict, it is unlikely that the conflict will

dissipate in the foreseeable future. Accordingly, review

by this Court is warranted.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

DREw S. Days, III