Respondents Brief — Stone v. INS

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Ne. 93-1199

1 ee Zn the Supreme Court of the Wr ror

OCTOBER TERM, 1994

MARVIN STONE, PETITIONER

oy,

Be IMMIGRATION AND NATURALIZATION SERVICE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

‘| Drew S. Days, Ill

oof Solicitor General

FRANK W. HUNT"

Assistant Ati. ey General

Epwin S. KNEEDLER Z

Deputy Solicitor General aq

BETH S. BRINKMANN 4

Pr. Assistant to the Solicitor General

= LisA DORNELL

? Attorney

“3 . Department of Justice

Washington, D.C. 20530

(202) $14-2217

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“BEST AVAILABLE

QUESTION PRESENTED

Whether the filing of a motion requesting that the

Board of Immigration Appeals reopen or reconsider a

final deportation order postpones the running of the

90-day period for seeking judicial review of such an order

under 8 U.S.C. 1105a(a)(1) (Supp. IV 1992).

(I)

TABLE OF CONTENTS

Page

Cotstans GH «oc ccccvisctdven ne dbbeicieedesion l

Jurisdiction ...... eee eee eeeeeeseeeeseeseeeeeeeees |

Statutory and regulatory provisions involved ......... l

TORII. «0 cnddndn0086ees 66 da ckkiasesamennsebons 2

NS GRRE 660060006 40esasdendedaeeine 12

Argument:

An alien’s filing of a motion to reopen or reconsider

a final deportation order does not postpone the

running of the 90-day period for seeking judicial

OMEN GE TOG nnbenecessnsennetatasocanee 13

A. The Attorney General’s regulatory definition

of what constitutes a final deportation order is

reasonable and entitled to great deference .... 13.

B. The text, structure, and background of the Im-

migration and Nationality Act reinforce the

Attorney General’s approach to finality in this

RE Pre rr TT TTT Torr TT ee 22

1. The 1961 enactment of 8 U.S.C. 110Sa.. 22

2. The 1990 amendments ................ 25

C. The Court’s decision in JCC v. Brotherhood of

Locomotive Engineers does not require a dif-

ET pe ae ee i ee eee eae a 32

CD sg +o Kscbabnesbsades ikbncceeddeaussens 38

RAGE 00000 08bnes ants eencdbkculecd webednedbess la

TABLE OF AUTHORITIES

Cases:

Air Courier Conference v. American Postal

Workers Union, 498 U.S. 517 (1991) .... 2... .. 12

Akrap v. INS, 966 F.2d 267 (7th Cir. 1992) ..... 10, 25, 27

Alleyne v. INS, 879 F.2d 1177 (3d Cir. 1989) ... 24, 29, 33

Amaral v. INS, 977 F.2d 33 (ist Cir. 1992) ....... 20

(III)

IV ¥

Cases ~ Continuss: Page Cases — Continued: Page

American Farm Lines v. Black Ball Freight Service, Nocon v. INS, 789 F.2d 1028 (3d Cir. 1986) .. 9, 17, 24, 26

_ , 8 SER see 36 Ogio v. INS, 2 F.3d 959 (9th Cir. 1993) .......... 28, 29

Aitoh v. INS, 606 F.2d 1273 (D.C. Cir. 1979) ..... 9 Outland v. CAB, 284 F.2d 224 (D.C. Cir. 1960)... 37

Bauge v. INS, 7 F.3d 1540 (10th Cir. 1993) ....... 28 Pierre v. INS, 932 F.2d 418 (Sth Cir. 1991) ....... 9

Berroteran-Melendez v. INS, 955 F.2d 1251 (9th Sale v. Haitian Centers Council, Inc., 113 S. Ct.

ca ra 28, 29 (hee ee a ae a ae 18

Bregman v. INS, 351 F.2d 401 (9th Cir. 1965)... .. 9, 26 Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert.

CAB v. Delta Air Lines, Inc., 367 U.S. 316 denied, 425 U.S. 971 (1976) ................4.. 26

Eee enh eal sepa e yi ae 36, 37 Shaughnessy v. Pedreiro, 349 U.S. 48 (1955) ...... 22

Chevron U.S.A. Inc. v. Natural Resources Defense Stajic v. INS, 961 F.2d 403 (2d Cir. 1992) ........ 20

Council, Inc., 467 U.S. 837 (1984) .......... 18, 19, 21 Sullivan v. Zebley, 493 U.S. 521 (1990) .......... 18, 21

Hyun Joon Chung v. INS, 720 F.2d 1471 (9th Cir. Thomas Jefferson University v. Shalala, 1148. Ct.

1983), cert. denied, 467 U.S. 1216 (1984) ....... 9, 26 PED ccc ccccendesrccvecccesscceceses:s 27

Darby v. Cisneros, 113 S. Ct. 2539 (1993) ........ 16 United States v. Nordic Village, Inc., \12 S. Ct.

Fleary v. INS, 950 F.2d 711 (11th Cir. 1992) ..... 9, 10, 28 REPIUEE tespotssssbacssspssecaseces sees: ~

Foti v. INS, 375 U.S. 217 (1963) ........ 8, 13, 20, 23, 34 Weinberger v. Sag, £22 US. TS9 (0972) « ...- -. ns

Gena v. INS, 424 F.2d 227 (Sth Cir. 1970) ........ 26 White v. INS, F394 1312 Gh Che. 1995) . .. 17, 25, 28, 39

Giova v. Rosenberg, 379 U.S. 18 (1964) .......... r Witiemsen County Regions! Manning Comm’ v.

Hallstrom v. Tillamook County, 493 U.S. 20 Hamilton Bank, 473 U.S. 172 (1985) .......... 16

"(GRE Ea a - (oo 7

ICC v. Brotherhood of Locomotive Engineers, 482 io om

U.S. 270 (1987) ............. 11, 12, 21, 32, 33, 34, 36 385 U.S. 276 (1966) .................. 25. 6

INS v. Abudu, 485 U.S. 94 (1988)... 20.0000 00... 17 ee

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..... 19 :

INS v. Doherty, 112 S. Ct. 719 (1992) ..... oy tT ee

INS v. Rios-Pineda, 471 U.S. 444 (1985) ......... 13, 19 Act of Sune 18, 0966, ch. 534, § 10,605ie.203... 22

INS v. Jong Ha Wang, 450 U.S. 139 (1981) ....... 19 Act of Dec. 29, 1950, ch. 1189, 64 Stat. 1129 ....... 22

Karimian-Kaklaki v. INS, 997 F.2d 108 (Sth Cir. 5 U.S.C. 1031 et seq. (Supp. IV 1950) ....... 23

EE as Ce 20 Act of June 27, 1952, ch. 477, 66 Stat. 163 ....... 16

Chul Hi Kim v. INS, 357 F.2d 904 (7th Cir. 1966).. 26 Act of Sept. 26, 1961, Pub. L. No. 87-301, § S(a),

— + onary v. INS, 392 U.S. 206 (1968) .. 20, 32, 34 alae ae Sa a 8, 14, 22-23

ampf, Pleva, Lipkind, Prupis & Petigrow v. Gil- .

; bert, $0 U.S. 350(1991) ................. 35 “oan ecimtene a .

ee v. INS, 685 F.2d 343 (9th Cir. 1982) ......... 20 inistrati '

Te Kuei Liu v. INS, 645 F.2d 279 (Sth Cir. 1981)... 20 ook ee

Morton v. Ruiz, 415 U.S. 199 (1974) 0.0.0.5... 19 ®WUS.C. 23405). BE Re Bag A eT 34

ts CES bc ebbcccccescscccccseees 23, 34, 35

Vi Vil

PR EN 6 Cn aescetsenscsveseéivess 5

Statutes, = .

a 7 ee rule bsg ena Page Statutes, regulations and rule — Continued: Page

ministrat oced ;

5 U.S.C. )01(an2) .. i" ’ ee Wah of ang: T Interstate Commerce Act, 49 U.S.C. 10101 ef seq.:

PONG I sath disicnsiskacsionines, 13, 33, 34 eG ieee dae atl my

Immigration Act of 1917, ch. 29, 39 Stat. 874... ... 16 . aaa, mmmerestressasnassnossersse: ,

Immigration Act of 1990, Pub. L. No. 101-649, Social Security Act, 42 U.S.C. 405(g) ............ 19

104 Stat. 4978: ors cco ncusuencestkweensconctens

> SR re 31 en ac edn eenheaudeswendedduns

§ 545(b)(1), 104 Stat. 5065 ................. 31 8 CER:

§ 545(b)(3), 104 Stat. 5065 ................. 10, 27 " Secti 31 2

§ 545(c), 104 Stat. 5065-5066 ............... 30 — MP npbeeseseceoseocenéedeesedsetoces

§ 545(d), 104 Stat. 5066.................... 30 Section Pv esccccccccccedcvccecsoons 3

§ 545(g)(4), 104 Stat. 5067 ................. 14 Section 3.1(d)(2) (1959)... 2.6... ee ee eee 15

§ 602(a), 104 Stat. 5077-5079 ............... 3 te wa ccincevacdessenes 1,17, 7a

Ey CE En ce cescccodécncuncese 3 II, c vcccccccccesvevecessoes 15

Immigration and Nationality Act, 8 U.S.C. 1101 ER ance ne 6eeh6enteeetesasees 1, 16, 8a

et seq.: EN. occ cu ceccecssetuesescovess 1, 16, 8a

8 U.S.C. 1101(a)(43) (Supp. IV 1992) ........ 14 EE ctcctceccanessedcccsennseees 1, 9a

ls es cecunndnkvecasenscs 5 EEE ccc ccccccessccccsveess 15

8 U.S.C. 1103 (1988 & Supp. IV 1992) ....... 1, la ede cnecctuescsesteree 7, 16,17, 9a

ep 3 PUTED ccc cccccccccccccccccess 3, 18, la ee Dena vessnesensusccesesss 3

S.C. 1105a (1988 & Supp. IV 1992) ...... passim Section 6.1(d)(2) (1953)... . 2. 0 ee eee 15

8 U.S.C. 110Sa(a) (1988 & Supp. IV ae _ hye I, og ovccccccccccccesececes 15

, 23, 26, Section 6.21 Dcscceeasivbsveseasece 15

8 U.S.C. 110Sa(ay(1) (Supp. IV 1992) .... 2, 8, 12, 14, marr nt tar 15

20, 23, 24, 35, 3a ie vssecstecvedausives

g U.S.C. 110Sa(a)(3) (Supp. Pe 24, 3a Section 90.9(b) (1949) TTUTTTITITITT TTT 16

8 U.S.C. 110Sa(a)(6) (Supp. IV 1992)... 10, 26, 27, 4a oan) ~ep->y hl teeaaeteaaeaa -

8 U.S.C. 110Sa(a)(7) (Supp. 11 1961) ........ 24, Sa Section 90.11 (1949).....--..---+.00-++e++ 16

8 U.S.C. 1105a(a(8) (Supp. IV 1992) ........ 24, 6a NUE 6 cc cccccccceececcess 4

| Se ati a aa 17 Section 214.2(b) (1979) .. 2... cece ee eens 4

8 U.S.C. 1251(a)(1)(B) (Supp. [V 1992) ...... 3 EE eee da cedectevectesesesesess 3

EE ccc cen ceeshhvcnsecene ss 3,4 EE cen cacuasensoreeveesveres 3

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Miscellaneous: Page

17 Fed. Reg. (1952):

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er ecécndseéucandkendadeeventecess 15

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23 Fed. Reg. (1958):

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ci dewddabeededenes 6uekeonseseeunen 15

26 Fed. Reg. (1961):

te tiicetenédennne dene bee er nee as 15, 35

canes hehddeed 260 de0 ss kuebanes 15

27 Fed. Reg. (1962):

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59 Fed. Reg. (1994):

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ee a ARS Ch 31

H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess.

DEE cuddveued sass eeddnsbeanahanenoeenea 30, 31

H.R. Rep. No. 1086, 87th Cong., Ist Sess. (1961)... 22, 23,

S. Rep. No. 2618, 81st Cong., 2d Sess. (1950) ..... 22

In the Supreme Court of the United Siates

OCTOBER TERM, 1994

No. 93-1199

MARVIN STONE, PETITIONER

IMMIGRATION AND NATURALIZATION SERVICE

ON 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-Al1)

is reported at 13 F.3d 934. The decisions of the Board of

Immigration Appeals (Pet. App. B1I-B15, B16-B19) are

unreported.

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, and was granted on May 23,

1994. The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

STATUTORY AND REGULATORY PROVISIONS INVOLVED

The relevant statutory provisions, 8 U.S.C. 1103 and

110Sa(a) (1988 & Supp. IV 1992), and regulatory provi-

sions, 8 C.F.R. 3.2, 3.6(a) and (b), 3.8 and 243.1, are set

forth at App., infra, la-10a.

(1)

STATEMENT

This case concerns the deadline established by the Im-

migration and Nationality Act (INA), as amended, by

which a petition for judicial review of a final deportation

order must be filed. Under 8 U.S.C. 110Sa(a)(1) (Supp. IV

1992), “a petition for review may be filed not later than 90

days after the date of the issuance of the final deportation

order.” Implementing regulations provide that “an order

of deportation * * * shall become final upon dismissal of

an appeal by the Board of Immigration Appeals.”

8 C.F.R. 243.1.

The court of appeals found that the order of the Board

of Immigration Appeals (Board) dismissing petitioner’s

appeal of the immigration judge’s deportation order was

final upon issuance. The court further held that

petitioner’s motion requesting that the Board reopen or

reconsider that order did not postpone the 90-day period

within which to petition for review of it in the court of ap-

peals. Because petitioner did not file a petition for judicial

review of the Board's final deportation order until more

than a year after it was issued, the court held that the peti-

tion was out of time under Section 1105a(a)(1).

1. Petitioner is a citizen of Canada who entered the

\inited States as a nonimmigrant visitor for business in

1977 and has resided in the United States since that date. '

On January 2, 1983, petitioner was convicted of con-

The court of appeals and the Board relied on petitioner's admis-

won that he entered the United States in 1977. Pet. App. A2, B4. At

one port, however, the Board indicated that petitioner entered in

1978. Id. at B2. That statement appears to be erroneous. Whether

petitioner entered in 1977 or 1978 has no effect on petitioner's

mogration status, however, because the length of his Stay in this

ountry without obtaining an extension from the INS was longer than

lin enher event. See note 4. infra

spiracy and mail fraud, in violation of 18 U.S.C. 371 and

1341. He was sentenced to three years’ imprisonment on

one count and received a five-year suspended sentence on

other counts, with probation imposed for five years. See

Pet. App. A2, B2-B3. Petitioner’s convictions were af-

firmed on appeal, United States v. Stone, 748 F.2d 361

(6th Cir. 1984); see Pet. App. B3, and he served approx-

imately 18 months in a federal correctional institution on

the three-year sentence. /d. at A2.

2. In March, 1987, the Immigration and Naturaliza-

tion Service (INS) served petitioner with an order to show

cause why he should not be deported from the United

States under 8 U.S.C. 1251(a)(2),? on the ground that he is

a nonimmigrant who remained in the United States

beyond the period authorized by law. Admin. Rec. (A.R.)

362. Following a deportation hearing, an immigration

judge determined that petitioner is deportable and ordered

him depcrted.? A.R. 109-115. The judge explained that

prior to 1978, regulations limited to six months the period

of time that aliens admitted as nonimmigrant visitors for

business could remain in the United States without obtain-

? This section was recodified in 1990 and is now found at 8 U.S.C.

1251(a)(1)(B) (Supp. IV 1992). See Immigration Act of 1990, Pub. L.

No. 101-649, § 602(a), 104 Stat. 5077-5079. The new version does not

apply, however, to cases, such as petitioner’s, in which notice was pro-

vided prior to March 1, 1991, of deportation proceedings. See Im-

migration Act of 1990, Pub. L. No. 101-649, § 602(d), 104 Stat. 5082.

’ The INA authorizes the Attorney General to delegate her powers

and duties under the Act to other government officials. 8 U.S.C.

1103(a). The Attorney General has delegated the power to determine

deportability and to issue deportation orders to immigration judges

(see 8 U.S.C. 1252(b)), whose decisions are subject to review by the

Board of Immigration Appeals. 8 C.F.R. 3.1(b)(2), 3.10, 242.8,

242.21.

ing an extension of time to stay. See 8 C.F.R. 214.2(b)

(1977).* The judge reasoned that based on petitioner’s

testimony, he is an alien who entered the United States in

1977 as a nonimmigrant visitor for business purposes, did

not obtain any extension of time to remain in the United

States, remained longer than six months, and therefore is

deportable under Section 1251(a)(2).

The immigration judge denied petitioner’s application

under 8 U.S.C. 1254(a) for suspension of deportation. °

Under Section 1254(a)(1), the Attorney General is

* 8 C.F.R. 214.2(b) (1977) provided:

Visitors. The classification of visitors in the Act has been sub-

divided for visa, admission, and extension purposes into visitors

for business (B-1) and visitors for pleasure (B-2). A B-1 visitor

may be admitted for an initial period of not more than six months

and may be granted extensions of temporary stay in increments of

not more than six months. A B-2 visitor shall ordinarily be admit-

ted for a period of not more than six months, but may be admit-

ted for a longer period not exceeding one year if the admitting im-

migration officer determines that emergent, compelling, or other

special circumstances exist warranting such longer admission

period.

In March, 1978, the regulation was modified to provide that B-!

and B-2 visitors were to be treated the same — both would “be admitted

for an initial period of not more than | year and may be granted exten-

sions of temporary stay in increments of not more than 6 months.”

& C.F.R. 214.2(b) (1979); see 43 Fed. Reg. 12,674 (1978). In peti-

tioner’s case, because he stayed longer than one year without obtain-

ing an extension, he is deportable regardless of whether he was a

visitor for business or for pleasure and regardless of whether he

entered in 1977 or 1978.

* The immigration judge also denied petitioner's request for a fur-

ther continuance in order to make a collateral attack on his criminal

conviction, \.R. 111. The immigration judge explained that peti-

floner’s conviction had been affirmed on direct appeal and that peti-

authorized to suspend the deportation of an alien who has

been physically present in the United States for at least

seven years immediately preceding his application if the

person is “of good moral character,” and if his deportation

would result in extreme hardship to the alien or to an im-

mediate relative who is a citizen or lawful permanent resi-

dent of the United States. A person cannot meet the “good

moral character” requirement, however, if he was “con-

fined, as a result of conviction, to a penal institution for

an aggregate period of one hundred and eighty days or

more, regardless of whether the offense, or offenses, for

which he has been confined were committed within or

without such [seven-year] period.” 8 U.S.C. 1101(f)(7).

The immigration judge concluded that petitioner was in-

eligible for suspension of deportation because his in-

carceration for approximately 18 months based on his

1983 conspiracy and mail fraud convictions exceeded the

180-day maximum. See Pet. App. A3.°

3. Petitioner filed an appeal to the Board of Immigra-

tion Appeals, which dismissed the appeal in a decision

issued on July 26, 1991. Pet. App. B1I-B15. The Board af-

firmed the immigration judge’s finding that petitioner is

deportable, id. at BS-B9, emphasizing that “[t}he regula-

tions did not provide in either 1977 or 1978, that a visitor

could be admitted, for business or pleasure, for an indeter-

minate amount of time,” id. at B7-B8.

The Board also affirmed the immigration judge’s denial

of petitioner’s application for suspension of deportation.

tioner had had ten months since the issuance of the order to show

cause during which he could have pursued collateral relief. /d. at

111-112.

* The immigration judge likewise denied petitioner’s request .or

voluntary departure under 8 U.S.C. 1254(e), because he did not satisfy

the statutory requirement of “good moral character.”

The Board agreed with the immigration judge’s determina-

tion that petitioner was statutorily precluded from Satisfy-

ing the “good moral character” prerequisite, Pet. App.

B11-B12, and reasoned that petitioner is statutorily ineligi-

ble for suspension of deportation for the additional reason

that he failed to establish extreme hardship, id. at

B12-B14. Finally, the Board concluded that even if peti-

tioner were statutorily eligible for suspension of deporta-

tion, it would deny relief in the exercise of its discretion

because of petitioner’s conspiracy and mail fraud convic-

tions and the fact that there were outstanding arrest war-

rants for petitioner in Canada on charges of theft and

fraud. /d. at B14-B15.’

4. Onor about August 21, 1991, petitioner filed a mo-

tion with the Board captioned “Motion to Reopen and/or

to Reconsider Its Decision; Appeal to the Board of Im-

migration Appeals.” A.R. 10. In the motion, petitioner re-

quested that the Board “reopen its hearing, and/or recon-

sider its decision,” based on four enumerated grounds. /d.

at Il. First, petitioner claimed that the Board did not

“fully address the correctness and adequacy of the ‘order

to show cause’ as previously submitted by [petitioner] in

his appeal to th[e] Board,” and he requested that one of

the cases cited by the Board “ ‘be read’ in his favor.” Jd. at

11-12. Petitioner described his second ground as

“repeat{ing] his argument number 4 as contained on page

11 of his original appeal to [the] Board,” in which he

claimed that the 1977 and 1978 regulations and conditions

imposed on Canadians entering the United States were in-

valid. /d. at 12. Petitioner’s third and fourth grounds for

reconsideration consisted of citations to two Board deci-

' The Board rejected or dismissed other challenges raised by peti-

tioner that are not relevant to the issue presented for review. See Pet.

App. B9-BI1.

sions, both more than ten years’ old and neither relevant to

his case. /d. at 13.8

The Board denied petitioner’s motion in an order dated

February 3, 1993. Pet. App. B16-B19. The Board ex-

plained that petitioner’s motion

presented no new precedent decisions which have any

bearing on our prior decision in this case nor has [h]e

submitted any legal authorities which the Board may

have inadvertently overlooked. Moreover, both of

[petitioner’s] assertions in his motion to reconsider

were adequately addressed by the Board in its July 26,

1991, decision. Accordingly, we will deny the motion

as frivolous.

Id. at B18.

5. Petitioner filed a petition for review in the court of

appeals on March 25, 1993.9 The court of appeals dis-

* Although petitioner’s motion was captioned a “Motion to Reopen

and/or to Reconsider Its Decision,” A.R. 10, the Board and the court

of appeals treated the motion solely as one to reconsider. Under the

regulations authorizing such motions, the standards for the two mo-

tions differ:

Motions to reopen shall state the new facts to be proved at the

reopened hearing and shall be supported by affidavits or other

evidentiary material. Motions to reconsider shall state the reasons

upon which the motion is based and shall be supported by such

precedent decisions as are pertinent.

& C.F.R. 3.8(a).

* The court of appeals’ opinion and the certiorari petition both state

that the petition for review was filed in the court of appeals on March

25, 1993. Pet. App. A4; Pet. 6. The court of appeals’ docket sheet in-

dicates, however, that petitioner’s opening brief was filed on that date

and that the petition for review was filed on February 16, 1993.

Resolution of that discrepancy is unnecessary for purposes of this

case, because both dates are more than 90 days after the Board’s July

26, 1991, final deportation order and less than 90 days after the

Board’s February, 3, 1993, denial of petitioner’s motion for recon-

missed the petition in part and denied it in part. Pet. App.

Al-All.

a. The court of appeals dismissed the petition for want

of jurisdiction to the extent it sought review of the Board’s

July 26, 1991, deportation order. The court explained that

under 8 U.S.C. 1105a(a)(1) (Supp. IV 1992), a petition for

judicial review of a final deportation order must be filed

within 90 days of the date of the order. It noted that when

the Board dismissed petitioner’s appeal on July 26, 1991,

the deportation order became final under 8 C.F.R. 243.1,

which provides that “an order of deportation * * * shall

become final upon dismissal of an appeal by the Board.”

Pet. App. A4-AS. Petitioner, however, did not file a peti-

tion for judicial review until March 25, 1993. The court

held that petitioner’s filing of a motion to reconsider by

the Board in August, 1991, although it was within the

90-day period to file a petition for judicial review, did not

postpone the time for seeking judicial review. Jd. at A9.

In reaching that conclusion, the court of appeals re-

viewed the circumstances of the 1961 enactment of Section

106 of the INA, 8 U.S.C. 1105a. See Act of Sept. 26, 1961,

Pub. L. No. 87-301, § 5(a), 75 Stat. 651. The court noted

that the “fundamental purpose” of the new Section 110Sa

was to abbreviate the process of judicial review of depor-

tation orders, so as to “frustrate certain practices * * *

whereby persons subject to deportation were forestalling

departure by dilatory tactics in the courts.” Pet. App.

A4-AS (quoting Foti v. INS, 375 U.S. 217, 224 (1963)).

The court noted that prior to 1990, a split of authority

had developed among the courts of appeals regarding

whether the time for seeking judicial review under Section

sideration. To avoid confusion, we, like the court of appeals and peti-

tioner, shall use the date of March 25, 1993.

110Sa(a) is extended by the filing of a motion with the

Board to reopen or reconsider. After analyzing the con-

flicting rulings of the Third and Ninth Circuits,'® the court

below acknowledged that both approaches were intended

to implement Congress’s intent to expedite the review pro-

cess; it concluded, however, that “given the way in which

the system works in practice the Ninth Circuit approach

seems more conducive to dilatory tactics than does the

Third Circuit approach.” Pet. App. A7. The court of ap-

peals explained that “[g]iven the measured pace at which

the I.N.S. often operates, the filing of a motion for recon-

sideration may, under the Ninth Circuit approach, mean

that the day of judgment in the court of appeals —

and actual deportation —will not arrive until months or

years later than would otherwise have been the case.” /bid.

Ultimately, the court of appeals concluded that

“[w]hatever the law may have been previously, we do not

believe that the Ninth Circuit approach is consistent with

the statute as amended in 1990.” Pet. App. A8. The court

pointed out that not only did the 1990 amendments cut in

'? The court noted that in Nocon v. INS, 789 F.2d 1028, 1033

(1986), the Third Circuit held that the filing of a motion to reopen or

reconsider does not suspend the statutory time limit for seeking

judicial review because such an interpretation would defeat the

Statutory purpose of preventing undue delay in deportation once the

alien’s status is determined. Pet. App. AS. By contrast, in Bregman v.

INS, 351 F.2d 401 (1965), the Negth Circuit held that if a motion to

reopen is filed with the Board within the statutory period for filing a

petition for judicial review — and if the petition for review is subse-

quently filed within the statutory period after denial of the motion to

reopen —the court of appeals has jurisdiction to review both Board

orders. Pet. App. A6-A7 & n.4 (also citing Hyun Joon Chung v. INS,

720 F.2d 1471 (9th Cir. 1983), cert. denied, 467 U.S. 1216 (1984);

Altoh v. INS, 606 F.2d 1273 (D.C. Cir. 1979); Pierre v. INS, 932 F.2d

418 (Sth Cir. 1991); and Fleary v. INS, 950 F.2d 711 (Lith Cir. 1992),

“all of which stem from the Ninth Circuit’s decision in Bregman”).

half the time period for seeking judicial review, they also

added a provision requiring that any judicial review of a

denial of a motion to reopen or reconsider shall be con-

solidated with the judicial review of the final deportation

order. Pet. App. A8; see 8 U.S.C. 110Sa(a)(6) (Supp. IV

1992), as enacted by the Immigration Act of 1990, Pub. L.

No. 101-649, § 545(b)(3), 104 Stat. 5065. In the court’s

view, the consolidation provision would make no sense

unless separate petitions for judicial review could be filed:

“If Congress had intended to provide for a single petition

for review covering both the original deportation order

and the subsequent denial of a motion for reconsideration,

there would not be two review proceedings to consolidate.”

Pet. App. A8. Noting that some courts of appeals have re-

jected this position even after the 1990 amendments,'' the

court below agreed with the approach taken by the Third

and Seventh Circuits and held that petitioner’s deportation

order was final when the Board issued it on July 26, 1991,

and “remained a final order notwithstanding [petitioner’s}

subsequent filing of a motion for reconsideration.” /d. at

A9. Thus, the petition filed on March 25, 1993, for

judicial review of the July 26, 1991, deportation order was

out of time, and the court of appeals did not have jurisdic-

tion to review that order.'2

'' The court contrasted the reasoning of the Eleventh Circuit in

Fleary v. INS, 980 F.2d 711 (1992) (which followed the Ninth Circuit's

pre-1990 position), with the Seventh Circuit's reasoning in Akrap v.

INS, 966 F.2d 267, 271 (1992) (which concluded that the 1990 enact-

ment of the statutory provision for consolidation of petitions for

judicial review “has put to rest” the earlier conflict between the Third

and Ninth Circuits, and requires the conclusion that the filing of a mo-

tion for reconsideration does not postpone the time for filing a peti-

tion for judicial review).

'? The court of appeals rejected petitioner's contention that the

government should be estopped from relying on the jurisdictional bar

b. To the extent petitioner sought judicial review of

the Board’s February 3, 1993, order denying his motion

for reconsideration, the court of appeals exercised

jurisdiction because the petition for review had been filed

within 90 days of that order. On the merits, however, the

court of appeals “fully agree{[d] with the Board’s

characterization of the motion as ‘frivolous,’” and it

therefore held that the Board did not abuse its discretion

in denying the motion for reconsideration. Pet. App.

All."3

because petitioner allegedly received erroneous advice from govern-

ment employees regarding the procedure for seeking judicial review.

Pet. App. A9-A10. The court pointed out that petitioner was trained

as a lawyer and concluded that, in any event, petitioner had not

established any “affirmative misconduct” by the government, which

would be required to invoke estoppel. /d. at Al0. The court also

stated that it would have been obliged to raise the jurisdictional bar

sua sponte, even if the government were estopped from raising it,

because a court is prohibited by Federal Rule of Appellate Procedure

26(b) from enlarging the time for filing a petition for review. Pet.

App. Alo.

'} Whether the court of appeals properly reached the merits of the

Board’s denial of the motion for reconsideration is a question not

presented in this case. In /CC v. Brotherhood of Locomotive

Engineers, 482 U.S. 270 (1987), however, the Court held that the

ICC's denial of a motion to reconsider was not reviewable by the court

of appeals because it alleged only material errors in the ICC's earlier

disposition and did not allege any new evidence or changed cir-

cumstances. The granting or denial of such a motion, the Court

reasoned, is committed to agency discretion and therefore is

unreviewable under the Administrative Procedure Act, 5 U.S.C.

701(aX(2), and the Administrative Orders Review Act (Hobbs Act),

28 U.S.C. 2341 ef seg. 482 U.S. at 277-284.

The court below relied on Giova v. Rosenberg, 379 U.S. 18 (1964)

(per curiam), to support its exercise of jurisdiction to review the denial

of petitioner’s motion to reopen or reconsider. See Pet. App. A10.

The question whether the court of appeals had subject matter jurisdic-

tion over the petition for review is distinct from the question whether

SUMMARY OF ARGUMENT

Congress has clearly stated that in order to invoke the

jurisdiction of the court of appeals to review an order of

deportation, an alien must file a petition for judicial

review “not later than 90 days” after issuance of a “final

deportation order.” 8 U.S.C. 1105a(a)(1) (Supp. IV 1992).

Under the regulations promulgated by the Attorney

General, an order by the Board of Immigration Appeals

(Board) dismissing an appeal of an order of deportation is

a final order for purposes of Section 110Sa(ay(1). The At-

torney General’s interpretation is reasonable and entitled

to deference, and it is not inconsistent with the Immigra-

tion and Nationality Act (INA), as amended. Deference is

especially due the Attorney General’s interpretation in this

case because the INA leaves undefined the term “final

deportation order,” and the INA grants the Attorney

General the authority to establish regulations to imple-

ment the statutory scheme for deportation proceedings.

The text, structure, and background of the INA judicial

review provisions reinforce the validity of the Attorney

General’s interpretation. There is nothing in the language

of the INA requiring that the filing of a motion to reopen

or reconsider postpones the statutory deadline for filing a

petition for judicial review or renders a final deportation

order “nonfinal.”

Petitioner nonetheless contends that the Court should

inject into immigration deportation proceedings the toll-

judicial review of a particular issue (the denial of a motion to recon-

sider) 1s foreclosed because resolution of that issue is committed to

agency discretion. Cf. Air Courier C onference v. American Postal

Workers Union, 498 U.S. $17, §23 n.3 (1991). If the motion for recon-

sideration in this case is properly characterized as one alleging only

legal or factual error in the original decision, and not one alleging new

evidence or changed circumstances, the Board’s denial of the motion

would appear to be unreviewable under Locomotive Engineers.

ing doctrine adopted by the Court in JCC v. Brotherhood

of Locomotive Engineers, 482 U.S. 270, 284-285 (1987).

The rationale underlying the adoption of the tolling result

in Locomotive Engineers does not require rejection of the

Attorney General’s approach. The Court stated in Loco-

motive Engineers that 5 U.S.C. 704 does not prevent the fil-

ing of a petition for reconsideration from rendering the

order under reconsideration nonfinal. It did not hold that

5 U.S.C. 704 requires that a motion for reconsideration be

given that effect under all statutory schemes. The unique

circumstances presented by orders of deportation counsel

against expansion of the Locomotive Engineers rationale to

override the Attorney General’s regulatory implementation

of the INA. Congress's “fundamental purpose” in enacting

the judicial review procedures in the INA was to “abbrevi-

ate the process of judicial review of deportation orders in

order to frustrate certain practices * * * whereby persons

subject to deportation were forestalling departure by dila-

tory tactics in the courts.” Foti v. INS, 375 U.S. 217, 224

(1963). The Court has recognized that in a deportation

case, “as a general matter, every delay works to the advant-

age of the deportable alien who wishes merely to remain in

the United States.” JNS v. Doherty, 112 S. Ct. 719, 724-725

(1992); INS v. Rios-Pineda, 471 U.S. 444, 450 (1985). The

framework for judicial review crafted by Congress to mini-

mize such delays in deportation cases should not be under-

mined by this Court’s creation of a tolling exception.

ARGUMENT

AN ALIEN’S FILING OF A MOTION TO REOPEN OR RE-

CONSIDER A FINAL DEPORTATION ORDER DOES NOT

POSTPONE THE RUNNING OF THE 90-DAY PERIOD FOR

SEEKING JUDICIAL REVIEW OF THE ORDER

A. The Attorney General's Regulatory Definition Of What

Constitutes A Final Deportation Order Is Reasonable And

Entitled To Great Deference

1. Section 106 of the Immigration and Nationality

Act, 8 U.S.C. 1105a (1988 & Supp. IV 1992), establishes

“the sole and exclusive procedure for, the judicial review of

all final orders of deportation, heretofore or hereafter

made against aliens within the United States pursuant to

administrative proceedings under section 1252(b) of this

title or comparable provisions of any prior Act.” 8 U.S.C.

110Sa(a) (Supp. IV 1992). As part of that “exclusive proce-

dure,” Section 110S5a(a)(1) imposes a Strict time limitation

on seeking judicial review. As amended in 1990, it provides:

(1) Time for filing petition

a petition for review may be filed not later than 90

days after the date of the issuance of the final depor-

tation order, or, in the case of an alien convicted of

an aggravated felony, not later than 30 days after

the issuance of such order.

8 U.S.C. 1105a(a)(1) (Supp. IV 1992).'5

The INA does not define “final deportation order,”

which triggers the running of the 90-day period for seeking

judicial review. Immediately after Section 110S5Sa was

enacted in 1961, however, the Attorney General filled the

statutory gap by promulgating a regulation to define that

term. The regulation specified, in relevant part:

'* The term “aggravated felony” includes murder, drug trafficking,

trafficking in firearms, certain offenses relating to money laundering,

and crimes of violence for which the term of imprisonment imposed is

at least five years. 8 U.S.C. 1101(a)(43) (Supp. IV 1992).

'* At the time of its enactment in 1961, Section 110Sa(a)(1) provid-

ed in relevant part that a petition was to be filed “not later than six

months from the date of the final deportation order or from the effec-

tive date of this section, whichever is the later.” Act of Sept. 26, 1961,

Pub. L. No. 87-301, § S(a), 75 Stat. 651. The 90-day time period ap-

plies to petitioner's case because his final deportation order was

entered on July 26, 1991, and the 1990 amendment applies to all final

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

Pub. L. No. 101-649, § 545/24), 104 Stat. 5067.

Final order of deportation.

[AJ]n order of deportation * * * shall become final

upon dismissal of an appeal by the Board of Immigra-

tion Appeals, upon waiver of appeal, or upon expira-

tion of the time allotted for an appeal when no appeal

is taken.

26 Fed. Reg. 12,113 (1961); see 8 C.F.R. 243.1 (1962). The

introduction to the rule explained that Section 243.1 “is

new and is being added to show when an order of deporta-

tion becomes final.” 26 Fed. Reg. 12,111 (1961). The

regulation has remained in effect since 1961, see 8 C.F.R.

243.1 (1994), and although Congress has since amended

the relevant statutory provisions, it has not modified the

Attorney General’s definition during the intervening 33

years.

The Attorney General’s regulations have also long made

clear that motions to reopen or reconsider do not affect

the finality of a Board order dismissing an appeal. Even

prior to the enactment of Section 1105a in 1961, the

regulations specified that “[t}he decision of the Board shall

be final,” 17 Fed. Reg. 11,475 (1952), originally codified at

8 C.F.R. 6.1(d)(2) (1953) (recodified at 8 C.F.R. 3.1(d)(2)

(1959), see 23 Fed. Reg. 9117 (1958)), and that “[t}he filing

of a motion to reopen or a motion to reconsider shall not

serve to stay the execution of any decision made in the

case,” 17 Fed. Reg. 11,476, 11,478 (1952), originally

codified at 8 C.F.R. 6.21(a) and 8.11(a) (1953) (recodified

at 8 C.F.R. 3.8(a) (1959), see 23 Fed. Reg. 9118 (1958)).'*

‘© By contrast, the pre-1961 regulations made clear that an

automatic stay of deportation was provided at the earlier stage of an

administrative appeal to the Board. See 17 Fed. Reg. 11,476 (1952),

originally codified at 8 C.F.R. 6.14 (1953) (recodified at 8 C.F.R. 3.6

(1959), see 23 Fed. Reg. 9118 (1958)). That regulation is now codified

The regulation specifying that deportation is not stayed

pending disposition of a motion to reopen or reconsider —

which has remained in effect ever since 1952, 8 C.F.R.

3.8(a) (1994)—confirms the full import of the regulation

that specifies when an order of deportation becomes

“final.” Finality is “concerned with whether the initial

decisionmaker has arrived at a definitive position on the

issue that inflicts an actual, concrete injury.” Darby v.

Cisneros, 113 S. Ct. 2539, 2543 (1993) (quoting William-

son County Regional Planning Comm’n v. Hamilton

Bank, 473 U.S. 172, 193 (1985)). By not providing for an

automatic stay pending the Board’s disposition of a mo-

tion to reopen or reconsider, the filing of such a motion

does not alleviate the consequences of the order of depor-

tation, and therefore does not render it “nonfinal.” See

at 8 C.F.R. 3.6(a), and is accompanied by a modification added in 1971

(hat specifies that the provision for an automatic stay pending ad-

ministrative appeal does not apply to an administrative officer’s denial

of a motion to reopen or reconsider or to stay deportation, except

«here the administrative officer granted a stay pending appeal. The

Board, however, may stay the deportation, in its discretion, in such

-ircumstances. 8 C.F.R. 3.6(b); see 36 Fed. Reg. 316 (1971). In addi-

tron, when a motion to reopen or reconsider is filed with the immigra-

‘(ion judge in a deportation proceeding, the execution of an outstand-

ing deportation order is not automatically stayed. 8 C.F.R. 242.22.

[he pre-1961 regulations were promulgated soon after the enact-

ment of the INA, Act of June 27, 1952, ch. 477, 66 Stat. 163. 17 Fed.

Reg. 11,469 (1952). In certain respects, the pre-1961 regulations con-

‘tuted modifications and recodifications of regulations that predated

1952 enactment of the INA and implemented the Immigration Act

' 1917. Those regulations provided that a deportation order was

‘tomatically stayed pending administrative appeal to the Board, see

» CFR. 90.9(b) (1949) (“Filing of an appeal shall operate to stay the

sccution of the * * * order until action on the appeal has been com-

cted.”), but made the issuance of a stay pending disposition of a mo-

on to reopen or reconsider discretionary, see, e.g., 8 C.F.R. 90.10,

“11 (1949)

8 U.S.C. 1252(c) (Attorney General may effect alien’s

deportation “[wjhen a final order of deportation under ad-

ministrative processes is made”).'’

Other aspects of the regulatory scheme reinforce the

common sense of the Attorney General’s approach to final-

ity. Since shortly after the enactment of Section 1105a in

1961, the regulations have provided that “[mJotions to re-

open in deportation proceedings shall not be granted” un-

less the Board finds certain listed criteria to be met

(8 C.F.R. 3.2; see 27 Fed. Reg. 97 (1962)). The granting of

a motion to reopen is discretionary, and such motions are

disfavored in immigration proceedings. INS v. Doherty,

112 S. Ct. 719, 724 (1992); INS v. Abudu, 485 U.S. 94,

107-108 (1988). “This is especially true in a deportation pro-

ceeding where, as a general matter, every delay works to the

advantage of the deportable alien who wishes merely to re-

main in the United States.” JNS v. Doherty, 112 S. Ct. at

724-725. Because motions to reopen or reconsider are to be

granted only rarely by the Board, the strong public interes:

that weighs against delay also weighs against postponing

the statutory deadline for seeking judicial review simply

because a motion to reopen or reconsider has been filed.

Furthermore, since 1962, the regulations have required mo-

tions to reopen or reconsider to state whether “the validity

of the deportation order has been or is the subject of any

judicial proceeding,” and the status of any such proceeding

(8 C.F.R. 3.8(a); see 27 Fed. Reg. 7488 (1962))—thereby

recognizing that judicial review may proceed notwithstand-

ing the filing of the motion. See Nocon v. INS, 789 F.2d

1028, 1033 n.5 (3d Cir. 1986) (noting that 8 C.F.R. 3.8(a)

“appears to assume the continuing appealability of the

original deportation order” notwithstanding the filing of a

motion to reopen or reconsider).

'? The finality of the Board’s order is underscored by the fact that if

the alien is deported notwithstanding the filing of a motion to reopen

or reconsider (as the regulations allow), the alien thereafter has no

recourse to the courts to challenge the order. See 8 U.S.C. 1105a(c);

White v. INS, 6 F.3d 1312, 1316-1317 (8th Cir. 1993).

2. The Attorney General’s implementation of the INA

in these respects, particularly her specification of what

constitutes a final deportation order, is entitled to substan-

tial deference. The Attorney General is charged with “the

administration and enforcement” of the INA and “all

other laws relating to the immigration and naturalization

of aliens,” with certain exceptions for laws relating to the

powers of other government officials, see Sale v. Haitian

Centers Council, Inc., 113 S. Ct. 2549, 2559 (1993)—

“[pJrovided, however, [t}hat determination and ruling by

the Attorney General with respect to all questions of law

shall be controlling.” 8 U.S.C. 1103(a). The Attorney

General further is charged with establishing “such regula-

tions * * * as [s]he deems necessary for carrying out [her]

authority under the provisions of [the INA].” /bid.; see

also 8 U.S.C. 1252(b) (deportation proceedings shall be

conducted “in accordance with such regulations, not in-

consistent with [the INA], as the Attorney General shall

prescribe,” and “the decision of the Attorney General shall

be final”).

In light of these express delegations of authority, the At-

torney General’s regulations implementing the statutory

scheme for determining the deportability of aliens and ef-

fecting their deportation may be set aside only if they are

arbitrary, capricious, or manifestly contrary to the INA.

Sullivan v. Zebley, 493 U.S. 521, 528 (1990) (quoting

Chevron U.S.A. Inc. v. Natural Resources Defense Coun-

cil, Inc., 467 U.S. 837, 843-844 (1984)). As the Court has

explained:

In administering this country’s immigration laws, the

Attorney General and the INS confront an onerous

task even without the addition of judicially aug-

mented incentives to take meritless appeals, engage in

repeated violations, and undertake other conduct

solely to drag out the deportation process. * * * The

Act commits the definition of the standards in the Act

to the Attorney General and [her] delegate in the first

instance, “and their construction and application of

th{ese] standard[s] should not be overturned by a re-

viewing court simply because it may prefer another

interpretation of the statute.”

INS v. Rios-Pineda, 471 U.S. 444, 450-451 (1985) (quoting

INS v. Jong Ha Wang, 450 U.S. 139, 144 (1981) (per

curiam)). Where the Attorney General necessarily promul-

gates rules to fill a “ ‘gap left, implicitly or explicitly, by

Congress,’ the courts must respect the interpretation of the

agency to which Congress has delegated the responsibility

for administering the statutory program.” JNS v.

Cardoza-Fonseca, 480 U.S. 421, 448 (1987) (quoting

Chevron, 467 U.S. at 843, and Morton v. Ruiz, 415 U.S.

199, 231 (1974)).

In Weinberger v. Salfi, 422 U.S. 749, 766 (1975), this

Court held that where, as here, an Act of Congress does

not specify when agency action is “final” for purposes of

judicial review, but does confer on the agency concerned

the authority to promulgate regulations to implement the

Act, the agency may properly prescribe by regulation

when agency action becomes final for those purposes.'*

'® The Court also explained in Weinberger v. Salfi that a “final” ad-

ministrative decision is a “statutorily specified jurisdictional prere-

quisite” for judicial review under the Social Security Act, 42 U.S.C.

405(g), even though it is “not precisely analogous to the more classical

jurisdictional requirements contained in such sections of Title 28 as

1331 and 1332.” 422 U.S. at 766. The court of appeals in the instant

case similarly emphasized the jurisdictional nature of its ruling (Pet.

App. A9), noting that it was “mindful of the Supreme Court’s ad-

monition in Cheng Fan Kwok v. I.N.S., 392 U.S. 206, 212 (1968)”:

Section 106(a) [8 U.S.C. § 110Sa(a)] is intended exclusively to

prescribe and regulate a portion of the jurisdiction of the federal

courts. As a jurisdictional statute, it must be construed both with

The Court has previously applied the same principle under

the INA, twice holding that regulations issued by the At-

torney General to govern the conduct of deportation pro-

ceedings may properly give content to the term “final

deportation order” in Section 1105a, and thereby deter-

mine the scope of judicial review under that provision. See

Foti v. INS, 375 U.S. 217, 229-230 & n.16, 232 (1963)

(“[c]learly, changes in administrative procedures may af-

fect the scope and content of various types of agency

orders and thus the subject matter embraced in a judicial

proceeding to review such orders”); Cheng Fan Kwok v.

INS, 392 U.S. 206, 214, 216-217 & n.17 (1968).

The Attorney General has invoked the same authority in

the present context, specifying that the Board of Immi-

gration Appeals’ dismissal of an appeal constitutes and

precision and with fidelity to the terms by which Congress has ex-

pressed its wishes.

In other contexts as well, the courts of appeals have recognized that

Section !10Sa(a)(1) is jurisdictional in nature, that the statutory

deadline is not subject to equitable tolling, and that it cannot be

suspended without running afoul of Federal Rule of Appellate Pro-

cedure 26(b), which expressly prohibits courts from enlarging the time

within which petitions for review must be filed. See, e.g., Aarimian-

Kaklaki v. INS, 997 F.2d 108, 111-112 (Sth Cir. 1993) (court without

jurisdiction to review petition that although mailed two days prior to

expiration of 90-day period following Board’s issuance of final depor-

tation order, was received by court on 92d day; tolling of 90-day

period inappropriate because timely petition is jurisdictional require-

ment and Fed. R. App. P. 26(b) prohibits court from enlarging time

periods for filing petitions for judicial review); Stajic v. INS, 961 F.2d

403, 404 (2d Cir. 1992) (per curiam) (timely filed petition is jurisdic-

tional prerequisite to judicial review); Amaral v. INS, 977 F.2d 33, 35

(Ist Cir. 1992); Te Kuei Liu v. INS, 645 F.2d 279, 282-283 (Sth Cir.

1981) (review powers of court limited by statutory time limit); Lee v.

INS, 685 F.2d 343, 343 (9th Cir. 1982) (per curiam) (dismissing peti-

tion for review filed after the “mandatory and jurisdictional” time

limit of Section 110Sa(a)(1)).

remains a final deportation order, notwithstanding the

alien’s subsequent filing of a motion to reopen or recon-

sider. It is especially appropriate for the Attorney General

to determine the consequences of such a motion, because

“[t]here is no statutory provision for reopening of a depor-

tation proceeding, and the authority for such motions

derive[s] solely from regulations promulgated by the At-

torney General.” JNS v. Doherty, 112 S. Ct. at 724;'® com-

pare JCC v. Brotherhood of Locomotive Engineers, 482

U.S. 270, 277-278 (1987) (discussing statutory provision

for reopening and reconsideration of ICC orders). The At-

torney General’s determination therefore must be sus-

tained unless it is “arbitrary, capricious, or manifestly con-

trary to the statute.” Sullivan v. Zebley, 493 U.S. at 528

(quoting Chevron, 467 U.S. at 844).

The Attorney General’s approach to the finality issue in

this context plainly is not arbitrary or capricious; it repre-

sents an entirely reasonable implementation of the INA,

by balancing the need for finality and expedition in depor-

tation proceedings against the interest in providing a safe-

ty valve to remedy defects in exceptional cases. And, as we

explain in Part B below, far from being “manifestly con-

trary” to the INA, the Attorney General’s approach is re-

inforced by the text, structure, and background of that

Act. The INA is not so rigid as to afford the Attorney

General the discretion to provide for reopening or recon-

sideration of final deportation orders only at the cost of

undoing the finality of those orders.

'? Indeed, the Board of Immigration Appeals is entirely a creature

of the Attorney General’s regulations. See 8 C.F.R. 3.1.

B. The Text, Structure, And Background Of The Immigration

And Nationality Act Reinforce The Attorney General's Ap-

proach To Finality In This Setting

1. The 1961 Enactment of 8 U.S.C. 1105a

When Congress first enacted the INA in 1952, it did not

include special statutory procedures for judicial review of

deportation orders. This Court subsequently held, how-

ever, that judicial review of deportation orders imposed

under the INA was governed by the general provisions of

the Administrative Procedure Act. Act of June 11, 1946,

ch. 324, § 10, 60 Stat. 243 (APA). See Shaughnessy v.

Pedreiro, 349 U.S. 48 (1955) (holding that APA provisions

making available district court action for declaratory and

injunctive relief applied under 1952 INA, and that habeas

corpus proceeding was no longer sole means of challeng-

ing deportation order).

By 1961, however, Congress was disturbed by meritless

actions in deportation cases “brought solely for the pur-

pose of preventing or delaying indefinitely [the alien’s]

deportation from this country.” H.R. Rep. No. 1086, 87th

Cong., Ist Sess. 23 (1961). In an effort to curtail delaying

tactics, Congress abandoned the APA’s general procedure

for judicial review and instead incorporated into the INA

the procedures for judicial review set forth in the Ad-

ministrative Orders Review Act, 28 U.S.C. 2341 ef seq.,

popularly known as the Hobbs Act.?° See Act of Sept. 26,

20 The Hobbs Act was enacted in 1950 to govern judicial review of

orders of certain specified agencies, such as the Federal Communica-

tions Commission, the Secretary of Agriculture, and the United States

Maritime Commission. See Act of Dec. 29, 1950, ch. 1189, 64 Stat.

1129. It was patterned after the procedures established for judicial

review of Federal Trade Commission orders and adopted for judicial

review of orders issued by the Securities and Exchange Commission,

the Bituminous Coal Commission, and the National Labor Relations

Board. See S. Rep. No. 2618, 81st Cong., 2d Sess. 4 (1950). In enact-

1961, Pub. L. No. 87-301, § S(a), 75 Stat. 651. That incor-

poration was contained in a new Section 106 of the INA,

codified at 8 U.S.C. 1105a (1988 & Supp. IV 1992). The

purpose of the new section was “to create a single, separate,

statutory form of judicial review of administrative orders

for the deportation and exclusion of aliens from the United

States,” so as to expedite judicial review and limit the dura-

tion of deportation proceedings. H.R. Rep. No. 1086,

supra, at 22-23; see Foti v. INS, 375 U.S. at 224.

Congress did not incorporate the Hobbs Act’s procedural

scheme in its entirety for deportation cases, however,

because it concluded that “certain specified exceptions”

were “made necessary by the unique subject matter of the

proposal.” H.R. Rep. No. 1086, supra, at 22. The first of

those exceptions—Section 110Sa(a)(1)—established the

deadline for filing a petition for judicial review. That provi-

sion stated that a petition for review may be filed “not later

than” six months (now 90 days) from the “final deportation

order.” The Hobbs Act, by contrast, states that upon entry

of a final order reviewable under the Act, a party “may,

within 60 days after its entry, file a petition to review the

order in the court of appeals.” 28 U.S.C. 2344. Congress’s

ing the Hobbs Act, Congress believed that the new procedures that

gave courts of appeals jurisdiction to review cases based on the ad-

ministrative record (rather than conferring jurisdiction on three-judge

courts empowered to conduct evidentiary hearings) would “make for

economy and expedition” in the disposition of cases in federal courts.

Id. at §.

The Hobbs Act was originally codified at 5 U.S.C. 1031 ef seq.

(Supp. IV 1950), following the APA. In 1966, however, the Hobbs

Act was moved from Title § to its current location in Title 28 of the

United States Code. See Act of Sept. 6, 1966, Pub. L. No. 89-554,

§ 4(e), 80 Stat. 621-625. The Hobbs Act accordingly is now referenced

in 8 U.S.C. 110Sa(a) (Supp. IV 1992) as “the provisions of chapter 158

of title 28.”

departure from that more permissive language of the

Hobbs Act in favor of the phrase “not later than” in Sec-

tion 110Sa(a(l) suggests an intent to impose a filing

deadline that is fixed immediately upon “issuance” of the

“final deportation order.” It therefore cuts against the no-

tion that the running of the 90-day period must be tolled

or postponed if a motion to reopen or reconsider is subse-

quently filed with the Board.?'

The framework for staying deportation orders estab-

lished by the 1961 legislation bolsters the reasonableness

of the Attorney General’s judgment regarding administra-

tive finality. Congress specified that the new judicial

review provision was not to be construed “to require the

Attorney General to defer deportation of an alien after the

issuance of a deportation order because of the right of

judicial review of the order granted by this section.”

8 U.S.C. 1105a(a)(8) (Supp. IV 1992) (codified in 1961 at

8 U.S.C. 1105a(ay(7) (Supp. III 1961)). In the event that

an alien properly pursued his right to judicial review, how-

ever, Congress further provided that service of the petition

“shall stay the deportation of the alien pending determina-

tion of the petition by the court, unless the court otherwise

directs.” 8 U.S.C. 1105a(a)(3) (Supp. IV 1992).?? At the

2! This conclusion is not undermined by the fact that Congress pro-

vided a six-month period for seeking judicial review under the INA,

rather than the 60-day period under the Hobbs Act. Congress could

reasonably have determined that because it established a fixed cut-off

time, it could be more generous in the total time allotted without un-

duly compromising its ultimate aim to place a limit on the length of

deportation proceedings, especially since a reopening or reconsidera-

tion motion might be filed and disposed of during the extended

period. See Nocon v. INS, 789 F.2d at 1033 (citing H.R. Rep. No.

1086, supra, at 22-23, 29-30); Alleyne v. INS, 879 F.2d 1177, 1181 n.7

(3d Cir. 1989).

22 As amended in 1990, the automatic stay upon service of the peti-

tion for review does not apply if the alien has been convicted of an ag-

gravated felony. See 8 U.S.C. 110Sa(a)(3) (Supp. IV 1992).

same time, Congress did not disturb the longstanding rule

under the governing regulations that a motion to reopen or

reconsider does not stay the execution of a final deporta-

tion order. See pages 15, 16, supra. Congress’s omission of

any statutory provision for an automatic stay in those cir-

cumstances, coupled with its provision for such a stay only

after a petition for judicial review has been filed, reflects

an intent to suspend the operative effect of the final depor-

tation order only in the latter situation. The Act thereby

creates a framework for prompt judicial review. As the

Eighth Circuit reasoned in White v. INS, 6 F.3d 1312,

1317 (1993): “The automatic stay of execution of a final

order of deportation that accompanies a petition for

review, considered by Congress important enough to be

mandatory in immigration law, is corrupted by the

scenario of suspended finality” upon the alien’s mere filing

of a motion to reopen or reconsider with the Board.

2. The 1990 Amendments

Any doubt concerning the validity of the Attorney

General’s determination that a motion to reopen or recon-

sider does not render a final deportation order nonfinal

(and therefore does not suspend the period within which

judicial review must be sought) was “put to rest” by Con-

gress in 1990. See Pet. App. A8 (quoting Akrap v. INS,

966 F.2d 267, 271 (7th Cir. 1992)).23

?* The question presented in this case was noted in Woodby v. INS,

385 U.S. 276, 286 n.20 (1966). In that case, the INS argued in the

court of appeals that judicial review was limited to determining

whether the Board’s denial of the alien’s motion for reconsideration

was an abuse of discretion, because the petition for judicial review was

filed more than six months after the issuance of the order of deporta-

tion (although within six months after the denial of the motion for

reconsideration). The court of appeals concluded that it “need not

decide this suggested limitation upon [its] review powers because * * *

a. First, Congress added a new paragraph (6) to Sec-

tion 110Sa(a), directing that “whenever a petitioner seeks

jit was] persuaded that the Board orders must be affirmed on either

ground.” Woodby v. INS, 370 F.2d 989, 992 (6th Cir. 1965). After the

court of appeals’ decision in Woodby, the Ninth Circuit held in

Breeman v. INS, 351 F.2d 401 (1965), that in such a situation it had

jurisdiction to review the deportation order as well as the denial of the

motion to reconsider.

The government’s subsequently filed brief in this Court in the Wood-

by case abandoned the contention made in the court of appeals, in light

of Bregman. 66-40 Gov't Br. at 8 n.3. In its opinion in Woodby, the

Court noted that the court of appeals had not passed on the question

and that the government had since abandoned its contention. 385 U.S.

at 286 n.20. The dissent stressed the importance of the issue which the

majority had “ignore{d).” 385 U.S. at 291 (Clark, J., joined by Harlan,

J.). It reasoned that the legislative history of Section 110S5a “makes it

clear that Congress intended it to be strictly enforced * * *. Since there

is no time limit on petitions for rehearing or reconsideration, permitting

review of a final order of deportation merely because a timely petition

for review of an administrative refusal to reopen the proceedings has

been filed would negate the congressional purpose behind the insistence

on timely filing” in Section 1105a. /bid. (citations omitted).

in the years prior to and shortly after the Woodby case, the issue ap-

pears to have arisen mainly in cases in which the motion to reopen or

reconsider had been filed after expiration of the six-month period for

seeking judicial review. The courts universally rejected such belated at-

tempts to obtain judicial review; the analyses by those courts, however,

often indicated that they likewise would have rejected petitioner's ap-

proach, because their reasoning turned on whether the petition for

judicial review was filed within six months of the entry of the deporta-

tion order, rather than on whether the motion to reopen or reconsider

was filed within that time period, as petitioner urges. See, e.g., Chul Hi

Kim v. INS, 357 F.2d 904, 906 (7th Cir. 1966); Gena v. INS, 424 F.2d

227, 231 (Sth Cir. 1970).

in Santiago v. INS, 526 F.2d 488, 489 n.3 (9th Cir. 1975) (en banc),

cert. denied, 425 U.S. 971 (1976), the INS unsuccessfully argued against

jurisdiction in a case similar to this one. See also Hyun Joon Chung v.

INS, 720 F.2d 1471, 1473-1474 (9th Cir. 1983) (same), cert. denied, 467

U.S. 1216 (1984). After the Third Circuit adopted the INS’s jurisdic-

tional argument in Nocon v. INS, 789 F.2d 1028 (1986), the circuits re-

mained split, as discussed by the court of appeals below, both before

and after the 1990 amendments. See Pet. App. A4-A8.

ee ee

—_

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.”

8 U.S.C. 1105a(ay(6) (Supp. IV 1992); see Immigration

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

5065. This provision necessarily rests on the premise that a

petition for judicial review of a deportation order may be

filed separately from a petition for judicial review of the

denial of a motion to reopen or reconsider.

Petitioner nevertheless suggests (Pet. Br. 38) that the

provision for consolidation “is most easily given effect

when the motion to reopen has already been decided at the

time the petition for review is filed,” and that “this situa-

tion is most easily enabled by permitting tolling.” But in

the scenario described by petitioner, only one petition for

review would ordinarily be filed (as was true in petitioner’s

case), and there would be nothing to consolidate. See

Akrap v. INS, 966 F.2d at 271 (“If the filing of a motion to

reopen were to render any previous orders non-final, only

one final order would exist — and what then would be sub-

ject to ‘consolidation’ * * * 2”). Section 110Sa(a)X(6) would

thereby be rendered superfluous, “a disfavored result that

should be avoided where possible.” Thomas Jefferson

University v. Shalala, 114 S. Ct. 2381, 2396 (1994); United

States v. Nordic Village, Inc., 112 S. Ct. 1011, 1015-1016

(1992).

Moreover, under petitioner’s theory, it would not merely

be easier to “give[ ] effect” to the consolidation provision if

the motion was decided before the alien petitioned for

judicial review; that would be the only manner in which the

deportation order could be reviewed, because the order

would not again become final, under petitioner’s theory,

until the motion to reopen or reconsider was decided.?4

** Indeed, in some jurisdictions that have adopted petitioner's ap-

proach, the court will dismiss an alien's petition seeking judicial

review of a final deportation order if the alien filed a motion to reopen

Again, in such a situation, “multiple reviewable orders

would not exist to consolidate.” Bauge v. INS, 7 F.3d

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

at 1317.

Petitioner suggests another scenario in which the con-

solidation provision could apply under his interpretation.

He asserts that if the alien files a petition for review before

he files a motion to reopen, the court would have jurisdic-

tion over the petition and would retain jurisdiction even

after the motion was filed with the Board. See Pet. Br. 39

n.8 (citing Ogio v. INS, 2 F.3d 959, 960-961 (9th Cir.

1993)). That petition could later be consolidated with a

petition seeking judicial review of the Board’s denial of the

motion to reopen. Neither petitioner nor the Ninth Circuit

explains, however, why the filing of a petition before the

motion instead of after makes a difference as to whether

the motion renders the Board’s order nonfinal for pur-

poses of judicial reivew.?* The court of appeals noted that

or reconsider before he sought judicial review and that motion is still

pending before the Board. Those courts reason thai the final deporta-

tion order has been rendered “nonfinal” by the filing of the motion to

reopen or reconsider, thus depriving the court of jurisdiction to review

it. That approach has resulted in some aliens’ being precluded from

obtaining any judicial review of their deportation orders because,

after the Board later denied the alien’s motion, the alien did not file a

second petition for review on the erroneous belief that the still-

pending first petition had preserved the right of judicial review. See,

e.g., Fleary v. INS, 950 F.2d 711, 712-713 (iith Cir, 1992) (an alien’s

premature, “unripe appeal is not curable by subsequent agency

action”). Cf. Hallstrom v. Tillamook County, 493 U.S. 20 (1989).

25 Indeed, the Ninth Circuit’s discussion of the issue in Ogio is dic-

tum inasmuch as the motion for reconsideration in that case was filed

before the petition for judicial review. The Ogio dictum rests on the

Ninth Circuit’s reasoning in Berroteran-Melendez v. INS, 955 F.2d

1251 (1992).

The court in Berroteran-Melendez was faced with a situation in

which the alien had filed a petition for judicial review and then subse-

— se

“[t}his is admittedly a complicated state of affairs,” but

felt bound by circuit precedent “[g]iven the way [its] law

has developed.” 2 F.3d at 961 & n.1. This Court, however,

is not similarly bound. There accordingly is no reason for

this Court to adopt an interpretation of Section 1105a that

would both require such a strained reading of the con-

solidation paragraph Congress added to that Section in

1990 and lead to such an “admittedly * * * complicated

quently filed a motion to reopen or reconsider with the Board. The

court of appeals concluded, without analysis, that it had jurisdiction

over the petition notwithstanding the filing of the motion with the

Board. The court then addressed the question whether it should grant

the alien’s motion to suspend the judicial proceeding pending the

disposition of the motion before the Board. It acknowledged that

“under Ninth Circuit law, there is no substantive difference between

the filing of a motion to reopen before the petition for review, in

which case the time for filing the petition runs from the date of the

decision on the motion to reopen, and where a motion to reopen is

filed after the petition for review and the appellate proceedings are

suspended. The appellate process would not be further delayed.” 955

F 2d at 1255. The court nonetheless declined to suspend the court pro-

ceedings and followed the approach taken by the Third Circuit in

Alleyne v. INS, 879 F.2d 1177 (1989), which was contrary to Ninth

Circuit authority on the tolling issue, but which demonstrated that’

Suspending appellate proceedings pending Board disposition of a mo-

tion to reopen “would effectively create an automatic stay of deporta-

tion pending the outcome of a motion to reopen.” 955 F.2d at 1255

(citing Alleyne v. INS, 879 F.2d at 1181 n.7). Such a result would be

contrary to the longstanding regulations that provide that the filing of

a motion to reopen or reconsider does not stay deportation. The Ninth

Cc ircuit also concluded in Berroteran-Melendez that while suspension

of judicial proceedings would promote judicial ef ficiency, “the poten-

tial for abuse of the process to circumvent the [Board's] discretionary

power to grant or deny a stay of deportation pending a motion to

reopen outweighs concerns with efficiency.” 955 F.2d at 1255: see also

Alleyne v. INS, 879 F.2d at 1181 n.7. Thus, the approach suggested b»

petitioner and the Ninth Circuit does not eliminate the possibility of

more than one judicial review proceeding.

state of affairs” as a practical matter—and that would

rigidly confine the broad rulemaking authority conferred

on the Attorney General by other provisions of the INA.

b. In 1990, Congress also directed the Attorney

General to issue regulations regarding motions to reopen

or reconsider, including regulations that (1) set a maxi-

mum time period for filing such motions, and (2) limit the

number of such motions that may be filed. See Immigra-

tion Act of 1990, Pub. L. No. 101-649, § 545(d), 104 Stat.

$066.2 The Conference Report expressed the view that

unless the Attorney General “finds reasonable evidence to

the contrary, the regulations should state that such mo-

tions be made within 20 days of the date of the final deter-

mination in the proceeding and that such motions be

limited to one motion to reopen and one motion to recon-

sider.” H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess.

133 (1990) (emphasis added).?’? That statement manifests

°* Congress also directed the Attorney General to “report on abuses

associated with the failure of aliens to consolidate requests for discre-

tionary relief before immigration judges at the first hearing on the

merits.” Immigration Act of 1990, Pub. L. No. 101-649, § 545(c), 104

Stat. 5065-5066. Petitioner points to the resulting report (Attorney

General’s Report to Congress on Consolidation of Requests for Reliet

trom Deportation, excerpted at Pet. Br. App.) to support his conten-

Hon that there is not a significant problem of aliens’ abusing the

system to delay deportation. Pet. Br. 13-14, 31-32. The report does

not. however, analyze abuses associated with motions for reopening

or reconsideration by the Board. Rather, it focuses on the issues the

\ttorney General was directed by Congress to address — abuses at the

first hearing on the merits before an immigration judge and abuses

associated with the failure to consolidate requests for discretionary

relief at that stage. Thus, the results of the survey and study cited by

petitioner are not germane to the time limit for seeking judicial review,

at issue here.

?’ The Attorney General also must “consider exceptions in the in-

terest of justice” and for changed circumstances in asylum cases. H.R.

ee ee er ne ee

* —, CO Fe Pewee mee ee OE EO

an understanding that an order of deportation is final

regardless of the subsequent filing of a motion to reopen

or reconsider. At the same time, Congress shortened by

half (from six months to 90 days generally, and from 60 to

30 days for aggravated felons) the deadline for filing a

petition for judicial review, see Immigration Act of 1990,

Pub. L. No. 101-649, §§ 502(a), 545(b)(1), 104 Stat. 5048,

5065, thereby strengthening the statutory policy of expedi-

tion in review of deportation orders.

If Congress in 1990 had intended that the Board’s final

order would be rendered nonfinal—and that judicial

review would thereby be postponed — by the alien’s mere

filing of a motion to reopen or reconsider, it presumably

would have stated as much in the course of providing for

the shortening of both the deadline for filing such motions

and the deadline for filing petitions for judicial review.

Significantly, moreover, Congress once again declined to

disturb the longstanding regulation providing that execu-

tion of a final deportation order is not stayed pending the

disposition of a motion to reopen or reconsider.

Cont. Rep. No. 955, supra, at 133. The proposed rules for implement-

ing the congressional directive were published on June 7, 1994. See

59 Fed. Reg. 29,386-29,391. The time for submission of written com-

ments expired on August 8, 1994. The proposed rules provide, in rele-

vant part, that a party may file only one motion to reopen proceedings

and one motion to reconsider a decision of an immigration judge, the

Board, or a service officer. A motion to reopen proceedings must be

filed within 20 days of the final administrative decision. A motion to

reconsider a decision must be filed within 20 days of the decision. A

party may not seek reconsideration of a decision denying a previous

motion to reconsider. An alien who has filed an asylum claim or

sought withholding of deportation may move to reopen at any time

where the claim is based upon an alleged change in circumstances in

the country of the alien’s nationality. See 59 Fed. Reg. 29,387-29,390

(1994).

c. Insum, when viewed against the 1990 amendments

as well as the 1961 enactment, the Attorney General’s in-

terpretation and implementation of the INA’s reference to

“final deportation order” is “most consistent both with

Congress’ intentions and with the terms by which it has

chosen to express those intentions.” Cheng Fan Kwok v.

INS, 392 U.S. at 218.

C. The Court’s Decision In ICC v. Brotherhood of Loco-

motive Engineers Does Not Require A Different Result

Petitioner contends (Br. 12, 20, 42) that this Court's

decision in ICC v. Brotherhood of Locomotive Engineers,

482 U.S. 270, 284-285 (1987), requires that the Attorney

General’s position be rejected. That case concerned

judicial review of two rulings by the Interstate Commerce

Commission (ICC) —(1) its denial of a petition requesting

that it clarify prior decisions in a railroad proceeding, and

(2) its denial of a petition requesting reconsideration of

that denial. The Court principally addressed whether the

ICC’s denials of the petitions were judicially reviewable.

Id. at 277-284, 285-287; see note 13, supra.

In the course of its analysis, however, the Court also

held that the filing of the petition with the ICC for recon-

sideration of its earlier order stayed the running of the

60-day period under the Hobbs Act for seeking judicial

review of that earlier order until the ICC acted on the mo-

tion for reconsideration. 482 U.S. at 284-285. In reaching

that conclusion, the Court acknowledged that “[a] con-

trary conclusion is admittedly suggested by the language

of the Hobbs Act and of 49 U.S.C. § 10327(i), which pro-

vides that, ‘[n]othwithstanding’ the provision authorizing

the Commission to reopen and reconsider its orders

(§ 10327(g)), ‘an action of the Commission * * * is final

on the date on which it is served, and a civil action to en-

force, enjoin, suspend, or set aside the action may be filed

after that date.’” 482 U.S. at 284 (quoting 49 U.S.C.

10327(i)). “This would seem to mean,” the Court con-

tinued, “that the pendency of reconsideration motions

does not render Commission orders nonfinal for purposes

of triggering the Hobbs Act limitations period.” 482 U.S.

at 284. The Court noted, however, that the same argument

~ could be made with respect to the similar provision of the

APA, 5 U.S.C. 704, but that the APA provision has been

construed “merely to relieve parties from the requirement

of petitioning for rehearing before seeking judicial review

* * *, but not to prevent petitions for reconsideration that

are actually filed from rendering the orders under recon-

sideration nonfinal.” 482 U.S. at 284-285. The Court

stated that it could “find no basis for distinguishing the

language of [49 U.S.C.] § 10327(i) from that of [5 U.S.C. ]

§ 704.” Id. at 285.

The Court’s discussion of the specific tolling issue pre-

sented in Locomotive Engineers under the ICC statute

does not lead to the conclusion that the Attorney General’s

regulatory implementation of the INA is invalid.28 As rele-

vant here, the Court stated only that 5 U.S.C. 704 has

been construed “not to prevent petitions for reconsidera-

tion that are actually filed from rendering the orders under

reconsideration nonfinal.” 482 U.S. at 285 (emphasis add-

ed). Our argument in this case is not that 5 U.S.C. 704

prevents a motion for reopening or reconsideration of a

deportation order from rendering the order nonfinal.

Rather, it is that the INA confers on the Attorney General

the authority to determine what constitutes a “final depor-

tation order” within the meaning of the particular provi-

sion of the INA that governs judicial review of such

orders.

** See White v. INS, 6 F.3d at 1314-1317 (distinguishing

Locomotive Engineers); Alleyne v. INS, 879 F.2d at 1180-1182 & n.7

(same).

The Court did not hold in Locomotive Engineers that

5 U.S.C. 704 overrides such an exercise of rulemaking

authority under another Act of Congress and affirmatively

requires that petitions for reconsideration render the orders

under reconsideration nonfinal under every statutory

scheme.2? Nothing in the text of 5 U.S.C. 704 suggests that

extraordinary result, which would be inconsistent with this

Court’s recognition that the Executive officer charged with

administering an Act of Congress—specifically including

the INA —has the authority to determine what constitutes a

“final” decision for purposes of judicial review. See pages

19-20, supra, discussing Weinberger v. Salfi, 422 U.S. at

466; Cheng Fan Kwok v. INS, 392 U.S. at 216-217 & n.17;

and Foti v. INS, 375 U.S. at 229-230 & n.16, 232. To the

contrary, the Court acknowledged in Locomotive Engi-

neers that 5 U.S.C. 704 on its face indicates that the

pendency of a reconsideration motion does not render an

agency order nonfinal for purposes of triggering the time

for seeking judicial review. See 482 U.S. at 284.

Furthermore, this case involves judicial review provi-

sions that are different than those at issue in Locomotive

Engineers. There, the Court was concerned with provi-

sions of the statute governing review of administrative

orders of the ICC, 49 U.S.C. 10327(i), and the filing

period under the Hobbs Act itself, 28 U.S.C. 2344, which

expressly governs judicial review of such ICC orders (see

28 U.S.C. 2342(5)).

2% In Locomotive Engineers, the 1CC took the position, in light of

consistent agency practice under its statutory and regulatory scheme,

that the filing of a petition for reconsideration did render the par-

ticular order at issue nonfinal and therefore did stay the running of the

60-day limitations period under the Hobbs Act. See 85-792 and 85-793

ICC & U.S. Supp. Br. at 4-8. The Court therefore did not have occa-

sion to consider the validity of an administrative implementation of

the ICC statute (or any other statute) under which a motion to recon-

sider does not undo the finality of the earlier order.

Although Section 1105a generally incorporates by

reference into the INA the judicial review provisions of the

Hobbs Act, it specifically departs from the Hobbs Act in a

number of respects in order to tailor judicial review to the

special context of deportation. And Congress did not just

change the number of days listed in the Hobbs Act, it re-

phrased the entire provision. In lieu of the Hobbs Act

language providing that a party “aggrieved by the final

order may, within 60 days after its entry, file a petition to

review the order” (28 U.S.C. 2344), Congress drafted the

INA provision to direct that a petition “may be filed nor

later than 90 days after” the “issuance of the final deporta-

tion order.” 8 U.S.C. 110S5a(a)(1) (Supp. IV 1992) (em-

phasis added). By virtue of the “not later than” language in

Section 110Sa(a)(1), it may be read to resemble more a

“period of repose,” imposing an unequivocal outside limit

or cut-off for filing, than a typical limitations period. See

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson

SO] U.S. 350, 363 (1991). Tolling principles are inconsis-

tent with periods of repose where the primary interest is in

achieving closure. /bid. We do not suggest that a phrase

such as “not later than” must always be construed to pre-

clude application of tolling principles. But here, when read

together with the structure of 8 U.S.C. 1105a as a whole

and against the background of Congress’s manifest pur-

pose in enacting and amending Section 1105a, the

language Congress employed in departing from the Hobbs

Act supports the validity of the Attorney General’s ap-

proach to the finality issue under the INA.

Moreover, in this case, the statute uses a term of art —

“final deportation order”—that has been given specific

content in implementing regulations (8 C.F.R. 243.1) that

were intended specifically to “show when” this particular

type of order “becomes final” (26 Fed. Reg. 12,111

(1961)), that were promulgated within months of the

enactment of the statutory provision that establishes the

finality of the order as a prerequisite to judicial review,

and that have remained in effect, unaltered, throughout

the subsequent 33 years. Furthermore, the provision for

reopening or reconsideration of a final deportation order

derives entirely from regulations of the Attorney General,

unlike in Locomotive Engineers, where the ICC statute

itself provided for petitions to reopen or reconsider (see

482 U.S. at 277-278, citing 49 U.S.C. 10327(g)), and thus

lent some force to the ICC’s practice of not regarding an

order as final for purposes of judicial review until such a

petition was disposed of.

This case also differs from the three decisions cited by the

Court in the portion of Locomotive Engineers on which

petitioner relies. In the first of the three cases cited by the

Court, the ICC had reopened the administrative record in a

case after some of the parties had filed suit in federal court.

American Farm Lines v. Black Ball Freight Service, 397

U.S. 532 (1970). Although the American Farm Lines opin-

ion did include the dictum on which the Locomotive Engi-

neers opinion relied —stating that “[uJnless Congress pro-

vides otherwise,” there is no final action until a motion for

rehearing is denied, 397 U.S. at 541—the Court clearly

recognized that contemporaneous administrative and judi-

cial proceedings do not necessarily collide and are not

always precluded, as petitioner’s approach suggests. More-

over, here, as we have explained, Congress and the At-

torney General have “provide[d] otherwise” in the statutory

and regulatory framework of the INA.

In CAB vy. Delta Air Lines, Inc., 367 U.S. 316 (1961),

the Court stated, likewise in dictum, only that there is a

“general notion” that administrative orders are not final

for purposes of judicial review until outstanding petitions

for reconsideration are disposed of, and it referred to the

general provisions of the APA concerning finality. See

367 US. at 326-327. Moreover, elsewhere in the CAB

opinion, the Court specifically noted that review of the

Statutes enacted by Congress to address the various ad-

ministrative agencies “reveal[ed] a wide variety of detailed

provisions concerning reconsideration, each one enacted

in an attempt to tailor the agency's discretion to the par-

ticular problems in the area.” Id. at 322 (emphasis added)

In the third case cited in Locomotive Engineers — i.e. Out-

land v. CAB, 284 F.2d 224, 227 (D.C. Cir. 1960) — the

agency concerned took the position that the order should

be regarded as having been rendered nonfinal under the

judicial review statute at issue there by the filing of a peti-

tion for rehearing, and the court concluded the “[p]ractical

considerations” supported the result it reached. As

discussed above, examination of how Congress crafted the

INA, in an attempt to tailor judicial review dif ferently for

purposes of final deportation orders and the particular

problems associated with delay in deportation pro-

ceedings, demonstrates the validity of the Attorney

General’s conclusion that an alien’s f iling of a motion with

the Board to reopen or reconsider a final deportation

order does not render the order nonfinal.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

Drew S. Days, Ill

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

BETH S. BRINKMANN

Assistant to the Solicitor General

LISA DORNELIL

Attorney

SEPTEMBER 1994

APPENDIX

8 U.S.C. 1103 (1988 & Supp. IV 1992) provides in perti-

nent part:

Powers and duties

(a) Attorney General

The Attorney General shall be charged with the ad-

ministration and enforcement of this chapter and all other

laws relating to the immigration and naturalization of

aliens, except insofar as this chapter or such laws relate to

the powers, functions, and duties conferred upon the

President, the Secretary of State, the officers of the

Department of State, or diplomatic or consular officers:

Provided, however, That determination and ruling by the

Attorney General with respect to all questions of law shall

be controlling. He shall have control, direction, and super-

vision of all employees and of all the files and records of

the Service. He shall establish such regulations; prescribe

such forms of bond, reports, entries, and other papers;

issue such instructions; and perform such other acts as he

deems necessary for carrying out his authority under the

provisions of this chapter. He may require or authorize

any employee of the Service or the Department of Justice

to perform or exercise any of the powers, privileges, or

duties conferred or imposed by this chapter or regulations

issued thereunder upon any other employee of the Service.

He shall have the power and duty to control and guard the

boundaries and borders of the United States against the il-

legal entry of aliens and shall, in his discretion, appoint for

that purpose such number of employees of the Service as

to him shall appear necessary and proper. He is authorized

to confer or impose upon any employee of the United

States, with the consent of the head of the Department or

(la)

other independent establishment under whose jurisdiction

the employee is serving, any of the powers, privileges, or

duties conferred or imposed by this chapter or regulations

issued thereunder upon officers or employees of the Ser-

vice. He may, with the concurrence of the Secretary of

State, establish offices of the Service in foreign countries;

and, after consultation with the Secretary of State, he

may, whenever in his judgment such action may be neces-

sary to accomplish the purposes of this chapter, detail

employees of the Service for duty in foreign countries.

(b) Commissioner; appointment

The Commissioner shall be a citizen of the United States

and shall be appointed by the President, by and with the

advice and consent of the Senate. He shall be charged with

any and all responsibilities and authority in the ad-

ministration of the Service and of this chapter which are

conferred upon the Attorney General as may be delegated

to him by the Attorney General or which may be pre-

scribed by the Attorney General.

- * * * *

8 U.S.C. 1105a (1988 & Supp. IV 1992) provides:

Judicial review of orders of deportation and exclusion

(a) Enxclusiveness of procedure

The procedure prescribed by, and all the provisions of

chapter 158 of title 28, shall apply to, and shall be the sole

and exclusive procedure for, the judicial review of all final

orders of deportation, heretofore or hereafter made

against aliens within the United States pursuant to ad-

ministrative proceedings under section 1252(b) of this title

or comparable provisions of any prior Act, except that —

(1) Time for filing petition

a petition for review may be filed not later than 90

days after the date of the issuance of the final depor-

tation order, or, in the case of an alien convicted of

an aggravated felony, not later than 30 days after the

issuance of such order;

(2) Venue

. the venue of any petition for review under this sec-

tion Shall be in the judicial circuit in which the ad-

ministrative proceedings before a special inquiry of-

ficer were conducted in whole or in part, or in the

judicial circuit wherein is the residence, as defined in

this chapter, of the petitioner, but not in more than

one circuil;

(3) Respondent; service of petition; stay of deportation

the action shall be brought against the Immigration

and Naturalization Service, as respondent. Service of

the petition to review shall be made upon the At-

torney General of the United States and upon the of-

ficial of the Immigration and Naturalization Service

in charge of the Service district in which the office of

the clerk of the court is located. The service of the

petition for review upon such official of the Service

shall stay the deportation of the alien pending deter-

mination of the petition by the court, unless the court

otherwise directs or unless the alien is convicted of an

aggravated felony, in which case the Service shall not

Stay the deportation of the alien pending determina-

tion of the petition of the court unless the court other-

wise directs;

(4) Determination upon administrative record

except as provided in clause (B) of paragraph (5) of

this subsection, the petition shall be determined solely

upon the administrative record upon which the depor-

tation order is based and the Attorney General’s find-

ings of fact, if supported by reasonable, substantial,

and probative evidence on the record considered as a

whole, shall be conclusive;

(5) Claim of nationality; determination or transfer to district

court for hearing de novo

whenever any petitioner, who seeks review of an

order under this section, claims to be a national of the

United States and makes a showing that his claim is

not frivolous, the court shall (A) pass upon the issues

presented when it appears from the pleadings and af-

fidavits filed by the parties that no genuine issue of

material fact is presented; or (B) where a genuine

issue of material fact as to the petitioner’s nationality

is presented, transfer the proceedings to a United

States district court for the district where the peti-

tioner has his residence for hearing de novo of the na-

tionality claim and determination as if such pro-

ceedings were originally initiated in the district court

under the provisions of section 2201 of title 28. Any

such petitioner shall not be entitled to have such issue

determined under section 1503(a) of this title or other-

wise;

(6) Consolidation

whenever a petitioner 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;

(7) Challenge of validity of deportation order in criminal pro-

ceeding; motion for judicial review before trial; hearing de

novo on nationality claim; determination of motion; dis-

missal of indictment upon invalidity of order; appeal

If the validity of a deportation order has not been

judicially determined, its validity may be challenged in

a criminal proceeding against the alien for violation of

subsection (d) or (e) of section 1252 of this title only by

separate motion for judicial review before trial. Such

motion shall be determined by the court without a jury

and before the trial of the general issue. Whenever a

claim to United States nationality is made in such mo-

tion, and in the opinion of the court, a genuine issue of

material fact as to the alien’s nationality is presented,

the court shall accord him a hearing de novo on the na-

tionality claim and determine that issue as if proceed-

ings had been initiated under the provisions of section

2201 of title 28. Any such alien shall not be entitled to

have such issue determined under section 1503(a) of

this title or otherwise. If no such hearing de novo as to

nationality is conducted, the determination shall be

made solely upon the administrative record upon

which the deportation order is based and the Attorney

General’s findings of fact, if supported by reasonable,

substantial and probative evidence on the record con-

sidered as a whole, shall be conclusive. If the deporta-

tion order is held invalid, the court shall dismiss the in-

dictment and the United States shall have the right to

appeal to the court of appeals within thirty days. The

procedure on such appeals shall be as provided in the

Federal rules of criminal procedure. No petition for

review under this section may be filed by any alien dur-

ing the pendency of a criminal proceeding against such

alien for violation of subsection (d) or (e) of section

1252 of this title;

(8) Deferment of deportation; compliance of alien with other

provisions of law; detention or taking into custody of alien

nothing in this section shall be construed to require

the Attorney General to defer deportation of an alien

after the issuance of a deportation order because of

the right of judicial review of the order granted by

this section, or to relieve any alien from compliance

with subsections (d) and (e) of section 1252 of this

title. Nothing contained in this section shall be con-

strued to preclude the Attorney General from detain-

ing or continuing to detain an alien or from taking

him into custody pursuant to subsection (c) of section

1252 of this title at any time after the issuance of a

deportation order;

(9) Typewritten record and briefs

it shall not be necessary to print the record or any

part thereof, or the briefs, and the court shall review

ihe proceedings on a typewritten record and on type-

written briefs; and

(10) Habeas corpus

any alien held in custody pursuant to an order of

deportation may obtain judicial review thereof by

habeas corpus proceedings.

(b) Limitation of certain aliens to habeas corpus proceedings

Notwithstanding the provisions of any other law, any

alien against whom a final order of exclusion has been

made heretofore or hereafter under the provisions of sec-

tion 1226 of this title or comparable provisions of any

prior Act may obtain judicial review of such order by

habeas corpus proceedings and not otherwise.

a — ee

States; disclosure of prior judicial proceedings

An order of deportation or of exclusion shall not be

reviewed by any court if the alien has not exhausted the

administrative remedies available to him as of right under

the immigration laws and regulations or if he has departed

from the United States after the issuance of the order.

Every petition for review or for habeas corpus shall state

whether the validity of the order has been upheld in any

prior judicial proceeding, and, if so, the nature and date

thereof, and the court in which such proceeding took

place. No petition for review or for habeas corpus shall be

entertained if the validity of the order has been previously

determined in any civil or criminal proceeding, unless the

petition presents grounds which the court finds could not

have been presented in such prior proceeding, or the court

finds that the remedy provided by such prior proceeding

was inadequate or ineffective to test the validity of the

order.

oe = 6 8

8 C.F.R. 3.2 provides:

Reopening or reconsideration.

The Board may on its own motion reopen or reconsider

any case in which it has rendered a decision. Reopening or

reconsideration of any case in which a decision has been

made by the Board, whether requested by the Commis-

sioner or any other duly authorized officer of the Service,

or by the party affected by the decision, shall be only upon

written motion to the Board. Motions to reopen in depor-

tation proceedings shall not be granted unless it appears to

the Board that evidence sought to be offered is material

and was not available and could not have been discovered

or presented at the former hearing; nor shall any motion

to reopen for the purpose of affording the alien an oppor-

tunity to apply for any form of discretionary relief be

granted if it appears that the alien’s right to apply for such

relief was fully explained to him and an opportunity to ap-

ply therefor was afforded him at the former hearing unless

the relief is sought on the basis of circumstances which

have arisen subsequent to the hearing. A motion to reopen

or a motion to reconsider shall not be made by or in behalf

of a person who is the subject of deportation proceedings

subsequent to his departure from the United States. Any

departure from the United States of a person who is the

subject of deportation proceedings occurring after the

making of a motion to reopen or a motion to reconsider

shall constitute a withdrawal of such motion. For the pur-

poses of this section, any final decision made by the Com-

missioner prior to the effective date of the Act with respect

to any case within the classes of cases enumerated in

§ 3.1(b)(1), (2), (3), (4), or (5) shall be regarded as a deci-

sion of the Board.

* * * * *

8 C.F.R. 3.6 provides in pertinent part:

Stay of execution of decision.

(a) Except as provided in § 242.2 of this chapter and

paragraph (b) of this section, the decision in any pro-

ceeding under this chapter from which an appeal to the

Board may be taken shall not be executed during the time

allowed for the filing of an appeal unless a waiver of the

right to appeal is filed, nor shall such decision be executed

while an appeal is pending or while a case is before the

Board by way of certification.

(b) The provisions of paragraph (a) of this section

shall not apply to an order of a Immigration Judge under

§ 242.22 of this chapter denying a motion to reopen or

reconsider or to stay deportation, except when a stay

pending appeal has been granted by the Immigration

Judge. The Board may, in its discretion, stay deportation

while an appeal is pending from any such order if no stay

has been granted by the Immigration Judge.

* * * * *

8 C.F.R. 3.8 provides in pertinent part:

Motion to reopen or motion to reconsider.

(a) Form. Motions to reopen and motions to recon-

sider shall be submitted in triplicate. A request for oral

argument, if desired, shall be incorporated in the motion.

The Board in its discretion may grant or deny oral argu-

ment. Motions to reopen shall state the new facts to be

proved at the reopened hearing and shall be supported by

affidavits or other evidentiary material. Motions to recon-

sider shall state the reasons upon which the motion is

based and shall be supported by such precedent decisions

as are pertinent. In any case in which a deportation order

is in effect, there shall be included in the motion to reopen

or reconsider such order a statement by or on behalf of the

moving party declaring whether the subject of the deporta-

tion order is also the subject of any pending criminal pro-

ceeding under section 242(e) of the Act, and, if so, the cur-

rent status of that proceeding. If the motion to reopen or

reconsider is for the purpose of seeking discretionary

relief, there shall be included in the motion a statement by

or on behalf of the moving party declaring whether the

alien for whose relief the motion is filed is subject to any

pending criminal prosecution and, if so, the nature and

current status of that prosecution. Motions to reopen or

reconsider shall state whether the validity of the deporta-

tion order has been or is the subject of any judicial pro-

ceeding and, if so, the nature and date thereof, the court

10a

in which such proceeding took place or is pending, and its

result or status. The filing of a motion to reopen or a mo-

tion to reconsider shall not serve to stay the execution of

any decision made in the case. Execution of such decision

shall proceed unless a stay of execution is specifically

granted by the Board or the officer of the Service having

administrative jurisdiction over the case.

* * * ~ *

8 C.F.R. 243.1 provides:

Final order of deportation.

Except as otherwise required by section 242(c) of the

Act for the specific purposes of that section, an order of

deportation, including an alternate order of deportation

coupled with an order of voluntary departure, made by the

special inquiry officer in proceedings under part 242 of

this chapter shall become final upon dismissal of an appeal

by the Board of Immigration Appeals, upon waiver of ap-

peal, or upon expiration of the time allotted for an appeal

when no appeal is taken; or, if such an order is issued by

the Board or approved by the Board upon certification, it

shall be final as of the date of the Board’s decision.

US GOVERNMENT PRINTING OFFICE. 1994 — 301-157/86202

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.