Reply Brief — Dada v. Mukasey

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IN THE

© sannin Gant oft

SAMSON TAIWO DADA,

Petitioner,

Vv.

MICHAEL B. MUKASEY,

ATTORNEY GENERAL,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR PETITIONER

SETH P. WAXMAN CHRISTOPHER J. MEADE

RACHEL Z. STUTZ Counsel of Record

WILMER CUTLER PICKERING ANNE K. SMALL

HALE AND DORR LLP ELOISE PASACHOFF

1875 Pennsylvania Avenue, NW JODIE MORSE

Washington, DC 20006 WILMER CUTLER PICKERING

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; 399 Park Avenue

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Houston, TX 77056 SYDENHAM B. ALEXANDER II]

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HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

TABLE OF CONTENTS

Page

pe BB Ny Teer iii

5 RES RRS REN te AEN NET OTC TOD 2

I. THE GOVERNMENT'S CONSTRUCTION, UN-

DER WHICH A VOLUNTARY DEPARTURE

RECIPIENT IS EFFECTIVELY DENIED A

MOTION TO REOPEN, IS INCONSISTENT

, gL TRAIT ACA SSS RA ET 2

A. The Government’s Interpretation Im-

properly Focuses On The Voluntary

Departure Provision In Isolation ...........:.......++. 2

B. The Government’s Reading Relies On

C. The Government’s Reliance On The

Legislative Evolution Of Each Provi-

CS EE CR a a 6

D. The Government’s Construction Raises

Serious Constitutional Concerns ...................000+. a)

II. TOLLING PRESERVES A VOLUNTARY DEPAR-

TURE RECIPIENT'S RIGHT To A MOTION To

REOPEN AND IS CONSISTENT WITH THE

STATUTORY AND REGULATORY SCHEME ............0++. 11

A. The Agency’s Regulations Do Not

Ee ee i eiernnsinisceicinicentssneienncnsennnniqetocsnees 11

B. Stone Does Not Preclude Tolling...................... 15

(i)

BEST AVAILABLE COPY

TABLE OF CONTENTS—Continued

III. THE DEPARTMENT OF JUSTICE’S PROPOSED

RULE PROVIDES AN ALTERNATIVE TO

TOLLING THAT UNDERCUTS THE GOVERN-

MENTS ARGUMENTS AND OFFERS THE

CouURT ANOTHER’ POSSIBLE “CONSTRUC-

THN OP TR A TUT ncssncnccnsoscvecenecssencnsvsccnsconsessees 16

A. The Proposed Rule Reveals The Short-

comings In The Government’s Argu-

B. The Solution Provided In The Pro-

posed Rule Offers An Alternative

Means To Resolve This Case.................c0-000--- 19

IV. THERE Is No AGENCY POSITION ON TOLL-

ING THAT WARRANTS DEFERENCE ...........0seeeceeeeeees 20

A. The BIA’s Decision In Shaar Does Not

Warrant EIRENE Nae ae 22

B. The 1997 Regulations Provide No Ba-

sis For Chevron Deferencee .................cceeccseeeeeees 25

C. The Analysis Of The Tolling Question

In The Preamble To The Newly Pro-

posed Rule Does Not Warrant Chevron

SN cisccicnstenviubiinastunemanieintinbiatenensenhinnniunag 25

IIIT ccirnnsnssneminenccsninespeoninnncicnmnacsenmnennenmnneieient 27

ili

TABLE OF AUTHORITIES

CASES

Page(s)

American Pipe & Construction Co. v. Utah,

ae ee cenienteniernntensivegereensionten: 12, 16

Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. |

I eect aide hla ile satarenereneenninnnds 5

Bifuleo v. United States, 447 U.S. 381 (1980)................. 7

Bragdon v. Abbott, 524 U.S. 624 (1998) ........sseeseseseeee 23

Brown v. Gardner, 513 U.S. 115 (1994) 2.0... ee ceeceeeeeees 23

Burnett v. New York Central Railroad Co., 380

I ais ciahicictinslidtdiiisinsniinicaiinimeimatecnnnss 16

Commodity Futures Trading Commission v.

Batear, GIO TE. BaD CABG cccccecscscteccccsssssszsccsesssseesssses 26

Chedad v. Gonzales, 497 F.3d 57 (1st Cir. 2007).......5, 23

Chevron U.S.A. Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984) ........ccccesees 20

Choub v. Gonzales, 2007 WL 2316919 (9th Cir.

Ba, Bi Free ei ticttetcsattnenennnttecnnncemensncenancimene 8

Clark v. Martinez, 543 U.S. 371 (2005) ..........ccssessesseees 10

Costello v.. INS, 376 U.S. 120 (1964) ...........cccscseseeees 2,3,7

Daneshvar v. Ashcroft, 355 F.3d 615 (6th Cir

RRR ERERT SeRRR Sea enee oe nn ee ee 8

Edmond v. United States, 520 U.S. 651 (1997) ..............: 8

Franklin v. Massachusetts, 505 U.S. 788 (1992) .......... 23

Gonzales v. Oregon, 546 U.S. 243 (2006) ...........ccsssseeseees 27

INS v. St. Cyr, 583 U.S. 289 (2001)...........cccscccccsscsscesseeseees 7

Johnson v. Railway Express Agency, Inc., 421

TTI cssisceiiesisiiendnamimentiinntnsitemaataitendnneineuceitte 12

Logan v. Zimmerman Brush Co., 455 U.S. 422

en LN NO SL 10

Long Island Care at Home, Ltd. v. Coke, 127 S.

TT scteiaincteneaebineiiiiinnaieinniieiddinalinasnedenirseten 8

Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996)......22, 23

Missouri v. Jenkins, 495 U.S. 33 (1990)........cccesereeseees 13

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Public Citizen, Inc. v. HHS, 332 F.3d 654 (D.C.

Ce TID sececcnssessescnsesssorsnoesapnnevnemessenastonanqueansorsscoceneese 23

Small v. United States, 544 U.S. 385 (2005) ............c.0000 8

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735

Re indictisiteaicaninichatacnntnintaiitesepvenemensinqeteemnemeceanivedie 26

Stone v. INS, 514 U.S. 386 (1995):.........csccsscsceseseeeeeees 7,15

United States v. Mead Corp., 533 U.S. 218

| ES vinlaenneianaianiin piiastieieeniin vee wee 21, 24, 26

Varity Corp. v. Howe, 516 U.S. 489 (1996)............scccecceee 8

Wisconsin Department of Health & Family

Services v. Blumer, 534 U.S. 473 (2002)............0006 20

Young v. United States, 585 U.S. 43 (2002) ............ses00 16

STATUTES AND REGULATIONS

Immigration’ and Nationality Act, 8 U.S.C.

§§ 1101, et seq.

TES A eM 13

| RTT ieee ee ETN SINE Ds 2 5,6

| TT RT TTT: 5

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all 5,8

ITT Aitaiiticisstadinsicasientemamesetenegapeniatenianemmuianiaiiien 3

ca bie deethisnenicsineaiiensetecctnegettesineeenienbiilis 14

a 22, 23

nie renters detaiiieianmenaiminssiaiiiiiits 22

| Se Te

8 C.F.R.

STi cesicissdbssdaberteniinteestnennbentntanmnisennapennaiatil 23

TTT nt siieacincaniceiineiinesnnecbaeniieiinnameiianadtindeaniel 23

TTT aaniiciteaiindiabiiesilaaiiansensuiiednianinapeaneitinpinnilienil 22

TTT osieniceniinasndesinntstninmstiiinsiehinstenmeaneniuisiniliil 4

ae TTT slhitnisiaiteniliiieinbineneietaihieiesiaeanietmieedtanaanil 24

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

IEE corassicinscsncssnnpssnnoseniutcntinitenissiinsigeidumamiaitll 5

ST icin ncacsrernniegncaninegnncactenegiitenninilanbeniipiebadgeasuiiiiii 15

Be ED cetnsrersoscennsnetiornsenpeenneniisstatintnnteaanpninnndiiiaiaiti 13

IED cacienseevensnicsnsensnnseseenmnittensesestiaetiaitiilidiaiisel 14

Ob I achivecesicocivinscninensnioslnciibianetnenitaienianingniaiiitengiaise 14

BF i vicniccnesstnniaasepeatesitiennesenhsgnnemesiansninniansinatal 12

FE cetnastcennensunininnennsiainaisimmntingns 14, 15

IIE ‘chiisrsetiouinceienniminenindeiimmenainicaninaiiaiiia 14

62 Fed. Reg. 10,312 (Mar. 6, 1997) .............0000 3, 11, 12, 25

72 Fed. Reg. 67,674 (Nov. 30, 2007) ..........sessseeesees passim

OTHER AUTHORITIES

Singer, Norman J., Statutes and Statutory

Construction (6th ed. 2000).........c.ccecceseeseseeeereeseeeeees 8

Respondent’s Brief, Azarte v. Ashcroft, No. 02-

73947 (9th Cir. Dec. 1, 2008)..............ccscceccceeesersenesees 21

Respondent’s Brief, Banda-Ortiz v. Gonzales,

No. 04-61100 (5th Cir. May 9, 2005) ...........:cssessseeee 24

Respondent’s Brief, Dekoladenu v. Gonzales,

Nos. 04-2164 & 05-1737 (4th Cir. Sept. 19,

SE ccnpcnepcosmisitesencinasiiinitonsnensnentaitiiiniinatiadinninaguisemenn 21

Respondent’s Brief, Kanivets v. Gonzales, Nos.

03-3569 & 03-4187 (3d Cir. Jan. 16, 2004)................ 25

Respondent’s Brief, Ugokwe v. U.S. Attorney

General, No. 05-15237 (11th Cir. Dec. 19,

The statutory provisions governing motions to re-

open and voluntary departure need to be reconciled.

The Government reads the voluntary departure provi-

sion in isolation; this interpretation eliminates motions

to reopen, a procedure that Congress made available to

all aliens, for an arbitrary subset of the favored group

of aliens granted voluntary departure. None of the

various bases the Government supplies for its construc-

tion—the language of the provision, the legislative his-

tory, and assorted regulations—supports this incon-

gruous result. |

Tolling, by contrast, is consistent with the statute

and offers a way to give meaning to both provisions,

safeguarding motions to reopen for the favored aliens

granted voluntary departure. Accordingly, this Court

should interpret the statute to permit tolling of the vol-

untary departure period during the pendency of a mo-

tion to reopen. The Government’s concerns about a

tolling rule are misplaced. And it cannot avoid tolling

by claiming deference to agency positions; there is no

authoritative agency view on tolling that warrants def-

erence. Indeed, any reading that would effectively

deny a voluntary departure recipient the ability to seek

reopening would be inconsistent with the statute.

The Government’s arguments are further undercut

by the Department of Justice’s newly proposed rule,

which offers an alternative to tolling that likewise har-

monizes the two statutory provisions. Under the pro-

posed rule, which would only apply prospectively, the

filing of a motion to reopen would terminate the grant

of voluntary departure, allowing the alien to await a

decision on his motion to reopen without facing penal-

ties. 72 Fed. Reg. 67,674, 67,679 (Nov. 30, 2007). Rec-

ognizing the important role of motions to reopen for

aliens facing changed circumstances, the rule “ensures

2

that the alien is not subsequently penalized when such

change in circumstances occurs.” Id. Like tolling, this

approach avoids the arbitrary and anomalous conse-

quences of the Government’s construction and, though

it is not due deference, offers the Court an alternative

interpretation of the statute.

ARGUMENT

I. THE GOVERNMENT'S CONSTRUCTION, UNDER WHICH A

VOLUNTARY DEPARTURE RECIPIENT IS EFFECTIVELY

DENIED A MOTION TO REOPEN, IS INCONSISTENT

WITH THE STATUTE

A. The Government’s Interpretation Improperly

Focuses On The Voluntary Departure Provi-

sion In Isolation

Reading the voluntary departure provision in isola-

tion, the Government erroneously argues (at 14-15, 19-

20) that the language of the provision sets an absolute

deadline that cannot be tolled. Yet this Court’s prece-

dent demonstrates that statutory provisions must be

read in context and, furthermore, that a provision

seemingly clear in isolation may become ambiguous in

context.

In. Costello v. INS, 376 U.S. 120 (1964), the Court

considered the intersection of various immigration pro-

visions and read the provisions together as a whole. In

particular, although one of the provisions at issue was

seemingly plain on its face, the Court concluded that

the language was ambiguous when considered in rela-

tion to another provision, because the statute did not

specify how the two provisions should interact. 376

U.S. at 128-129 (analyzing relation-back provision); see

also Pet. Br. 17-18 & n.7. As in Costello, this Court

should refuse to adopt a construction of one provision

that would “render nugatory and meaningless for an

entire class of aliens” the discretionary relief at issue.

3

376 U.S. at 132; see also id. at 127-128 (declining to

adopt a construction that “would, with respect to an en-

tire class of aliens, completely nullify a procedure so

intrinsic a part of the legislative scheme”).

That sufficient ambiguity to permit tolling exists in

the statutory scheme was suggested by the Depart-

iuent itself. In 1997, when the Department first consid-

ered the interaction of the two provisions at issue here,

it listed tolling as a possible solution. See 62 Fed. Reg.

10,312, 10,325-10,326 (Mar. 6, 1997).

This view was well founded: the voluntary depar-

ture provision is not phrased like other deadlines in the

Immigration and Nationality Act (INA), but, rather,

passively describes a “period” during which

“(plermission to depart” remains “valid.” 8 U.S.C.

§ 122:ic(b)(2). Other deadlines in the INA, by contrast,

require an affirmative act to take place within a set

time period. See Pet. Br. 17 n.6.

B. The Government’s Reading Relies On A Mis-

nderstanding Of The Voluntary Departure

Bargain

The Government also argues (at 13-16, 18, 28-30)

that forfeiture of a motion to reopen is part of the quid

pro quo between the Government and the alien. The

Government, however, is mistaken about the benefits

and burdens that accompany voluntary departure.

1. The Government suggests (at 18, 27, 33) that

the Court should read the statute to eliminate motions

to reopen for aliens granted voluntary departure be-

cause one of the key benefits to the Government of vol-

untary departure is the termination of all litigation

with the alien. Yet it is undisputed that an alien who

seeks voluntary departure at the conclusion of proceed-

ings (such as Petitioner) is not required to waive other

4

appeals. As the Government acknowledges, such aliens

can pursue appeals to the Board of Immigration Ap-

peals (BIA) and can also file petitions for review with

the courts of appeals. Gov’t Br. 6, 8; see also 72 Fed.

Reg. 67,674, 67,676 (Nov. 30, 2007) (“{uJnder the cur-

rent regulations” such an alien “is still able to file an

appeal to the Board”); id. at 67,678 (may file petition for

review with court of appeals); C.A. App. 167 (Petitioner

expressly “reserve[d] appeal”); Pet. Br. 24-27.' Be-

cause litigation is not concluded upon a grant of volun-

tary departure, this benefit. to the Government is not

part of the quid pro quo and cannot justify eliminating

motions to reopen for these aliens.. .

2. Nor does the Government’s concern with delay

(at 33-34) support a conclusion that Congress intended

waiver of motions to reopen as part of the quid pro quo.

Motions to reopen are, in fact, decided relatively

quickly. See American Immigration Law Foundation

Amicus Br: 20-23 (motions to reopen generally decided

by immigration judge and Board in fewer than 60 or 90

days, respectively); 8 C.F.R. § 1003.1(e)(5) (motions to

reopen generally assigned to Board member who de-

cided original appeal, which permits familiarity with

the record); Pet. Br. 10 (Petitioner’s motion to reopen

decided in roughly two months). By contrast, petitions

for review to the courts of appeals take much longer.

See 72 Fed. Reg. at 67,681. Given the relative speed

with which motions to reopen are decided, it makes lit-

tle sense to conclude that Congress intended aliens to

‘The courts of appeals that have refused to adopt a tolling

rule have wrongly suggested than an alien who accepts voluntary

departure must waive certain litigation rights. See Pet. Br. 25-26

& n.17.

5

be able to pursue all other appeals, but waive only their

statutory right to seek reopening.

3. The Government mistakenly suggests (at 29)

that the filing of a motion to reopen is inconsistent with

the terms of the voluntary departure bargain because,

under the statute, a voluntary departure applicant

must have a current intent to depart. See 8 U.S.C.

§ 1229c(b)(1D). This argument, however, misappre-

hends the fundamental purpose of a motion to reopen,

thereby ignoring the important role these motions play.

Under the statute and regulations, a motion to reopen

is limited to changed circumstances. Specifically, such

motions are limited to “new facts,” id. § 1229a(c)(7)(B),

i.e., “circumstances that have arisen subsequent to the

hearing,” 8 C.F.R. § 1003.2(c)(1).2_ By definition, then,

an alien could not know about these facts and circum-

stances at the time he accepts voluntary departure.

Indeed, the Department of Justice’s proposed rule is

premised on the fact that “an alien may request volun-

tary departure in good faith,” but then be faced with

changed circumstances that would trigger eligibility for

a motion to reopen. 72 Fed. Reg. at 67,679.

? For example, new facts might arise that relate to cancella-

tion of removal. See 8 U.S.C. § 1229b(b)(1)(D); Azarte v. Ashcroft,

394 F.3d 1278, 1280-1281 (9th Cir. 2005) (alien’s child diagnosed

with mental disabilities that required intensive therapy). Or an

alien’s spouse may naturalize to become a citizen while the case is

on direct appeal to the BIA, see, e.g., Chedad v. Gonzales, 497 F.3d

57, 59 (1st Cir. 2007), which would make him immediately eligible

for an adjustment of status to that of a lawful permanent resident,

see 8 U.S.C. § 1255(a). These new facts can arise at any time after

the immigration judge’s initial decision, including while an appeal

is pending before the Board. See, e.g.,72 Fed. Reg. at 67,679.

6

C. The Government's Reliance On The Legisla-

tive Evolution Of Each Provision In Isolation

Fails

The Government is also mistaken in its attempt to

extract a congressional purpose to preclu‘e tolling from

the evolution. of the motion to reopen and voluntary de-

parture provisions. Gov’t Br. 23-28, 33-34.

1. The Government asserts (at 33) that motions to

reopen are “disfavor[ed],” and that Congress’s action in

1996 reflected this disfavor. This argument, however,

is undercut by the fact that Congress chose to codify

motions to reopen in 1996. And, in doing so,.Congress

took care to provide contours to the right: permitting

one motion to reopen, which raises new facts, to be filed

within 90 days. 8 U.S.C. § 1229a(c)(7)(B), (C)(i). Con-

gress took this action, moreover, after considering the

issue for years, and only after the Attorney General

found “no pattern of abuse.” See Pet. Br. 3. |

The support the Government offers for its argu-

ment that this newly codified and carefully defined

right was disfavored consists of case law prior to 1996.

Needless to say, these cases do not establish Congress’s

disfavor towards its subsequent, carefully codified

right. These cases, moreover, date from a time when

an alien was permitted to file multiple motions, and at

any time. See Gov’t Br. 33; see also Pet. Br. 3 n.1.

2. The Government’s reliance (at 23-26) on the

evolution of the voluntary departure provision also

fails. While it is true that Congress placed time limits

on voluntary departure in 1996, and eliminated an ex-

ception, these amendments do not speak to Congress’s

view on the interaction of the voluntary departure and

motion to reopen provisions or the question of tolling.

There is simply no indication that Congress considered

this issue, and the Government does not suggest oth-

7

erwise. See Pet. Br. 19-20 & nn.9-10; see also INS v. St.

Cyr, 533 U.S. 289, 320 n.44 (2001) (absence of considera-

tion noteworthy given the “comprehensive character”

of the legislative history of the Illegal Immigration Re-

form and Immigrant Responsibility Act (IIRIRA)).

3. The Government’s related arguments (at 26)

concerning the “essential purpose of IIRIRA’s amend-

ments to the voluntary departure provision”’ fare no

better. This Court has rejected reliance on generalized

legislative purposes to answer a specific interpretative

question. In Costello, for example, although “[t]he gen-

eral legislative purpose underlying enactment of [the

deportation provision at issue] was to broaden the pro-

visions governing deportation,” “reference to such a

generalized purpose does little to promote resolution of

the specific problem before us, of which there was abso-

lutely no mention in the Committee Reports or other

legislative materials.” 376 U.S. at 125-126; see also, e.g.,

Bifulco v. United States, 447 U.S. 381, 398-399 (1980).

Moreover, to the extent the Government seeks to

rely on IIRIRA’s overarching purpose, its description

of that purpose is too narrow. As described in Peti-

tioner’s brief, one of Congress’s primary concerns in

passing IIRIRA was to enact reform with respect to

criminal aliens, and Congress was particularly con-

cerned about such aliens abusing motions to reopen. A

no-tolling rule, then, would turn Congress’s intent on

its head, as criminal aliens would be entitled to a motion

> The Government quotes (at 26) Stone v. INS, 514 U.S. 386,

399 (1995), a case decided before IIRIRA’s enactment, to support

its articulation of IIRIRA’s purpose with respect to voluntary de-

parture.

8

to reopen—but the favored subset of aliens who receive

voluntary departure would not. Pet. Br. 29-33.

Indeed, at least some aliens accused of terrorist ac-

tivities are permitted to file motions to reopen, see

Daneshvar v. Ashcroft, 355 F.3d 615, 626, 629 (6th Cir.

2004) (reversing BIA’s denial of motion to reopen of

alien found inadmissible for having engaged in terrorist

activities); see also Choub v. Gonzales, 2007 WL

2316919, at *1-2 (9th Cir. Aug. 14, 2007) (noting that

alien who provided “material support” to a terrorist or-

ganization “may seek relief by filing a motion to reopen

with the BIA”); but, under the Government’s view,

those who have established “good moral character,”

8 U.S.C. § 1229c(b)(1)(B), are not. This Court should

reject such an anomalous result. See Small v. United

States, 544 U.S. 385, 398 (2005).

* The Government’s argument (at 32) that the “specific” (vol-

untary departure provision) governs the supposedly “general”

(motion to reopen provision) and thus bars tolling is without merit.

Unlike in the one case cited (at 32) by the Government, Long Is-

land Care at Home, Ltd. v. Coke, 127 S. Ct. 2339 (2007), where the

provisions concerned the same subject matter, the two provisions

here plainly do not. See Edmond v. United States, 520 U.S. 651,

656-658 (1997) (canon inapplicable where two provisions dealt with

separate issues—appointment and assignment of judges); see also

Singer, 2B Statutes and Statutory Construction § 51.05 (6th ed.

2000). Nor is there any indication that Congress intended the vol-

untary departure provision “as a limitation” on the motion to re-

open provision. Varity Corp. v. Howe, 516 U.S. 489, 511 (1996)

(stating canon “has [been] understood ... as a warning against ap-

plying a general provision when doing so would undermine limita-

tions created by a more specific provision”; declining to apply the

doctrine where there was no indication “that Congress intended

the specific remedies ... as a limitation” (emphasis in original)).

9

D. The Government’s Construction Raises Seri-

ous Constitutional Concerns

The Government fails to address the due process

and equal protection concerns raised by its statutory

construction under which arbitrary government action

eliminates congressionally-provided motions to reopen

for a subset of aliens granted voluntary departure.

The Government asserts (at 49) that constitutional

avoidance does not permit tolling because it would

“subvert” congressional intent. There is no evidence,

however, that Congress intended to eliminate motions

‘to reopen for an arbitrary subset of aliens granted vol-

untary departure. See Part I.A-C supra.

The Government offers no other arguments rele-

vant to Petitioner’s liberty interest in remaining in this

country—apparently conceding that such a liberty in-

terest exists under the Due Process Clause, that it is

protected by the motion to reopen, and that arbitrary

deprivation of procedures safeguarding constitutionally

protected interests is inconsistent with due process.

Pet. Br. 39-42. These constitutional concerns, accord-

ingly, favor an alternative construction of the statute,

such as tolling, that preserves the procedures Congress

made available to safeguard the alien’s interest in re-

maining in this country. .

With regard to Petitioner’s separate argument

based on his preperty interest in the motion to reopen

itself, the Government appears to concede (at 50) that

due process concerns could arise upon a showing of a

“cognizable interest” in having the BIA resolve the

timely-filed motion.’ The Government, while blankly

> ‘The Government's assertion (at 50) that the “Board did re-

solve petitioner’s motion” is of no moment. This non-merits rejec-

10

insisting (at 50) that such an interest cannot lie, offers

no explanation as to why arbitrary deprivation of the

right of access to adjudicative proceedings provided by

law does not suffice to raise a due process concern. Pet.

Br. 42-46.°

The Government’s only defense of the equal protec-

tion concerns arising from its construction is that Peti-

tioner’s own equal protection rights were not violated.

Gov’t Br. 50-51. This argument is misplaced:

[W]hen deciding which of two plausible statu-

tory constructions to adopt, a court must con-

sider the necessary consequences of its choice.

If one of them would raise a multitude of con-

stitutional problems, the other should prevail—

whether or not those constitutional problems

pertain to the particular litigant[.]

Clark v. Martinez, 543 U.S. 371, 380-381 (2005). The

Government offers no rational basis for the arbitrary

treatment of aliens who timely file motions to reopen—

even among those who file on the same day—that re-

sults from the Government’s construction, under which

tion based on the expiration of the voluntary departure period

while the motion was pending does not satisfy due process. In

Logan v. Zimmerman Brush Co., 455 U.S. 422, 426-427 (1982),

Luzgan’s claim was similarly “resolved”—rejected because the

commission had failed to meet certain procedural requirements.

° The Government properly recognizes (at 50) that Petitioner

is not asserting a liberty or property interest in the grant of a mo-

tion to reopen. Rather; Petitioner’s liberty interest is in remaining

in this country, an interest protected by the motion to reopen.

And his property interest is in the motion to reopen itself. The

Government’s suggestion (id.) that Petitioner cannot have a pro-

tected interest in a discretionary benefit conflates this distinction

and is misplaced. See Pet. Br. 44 & n.34.

11

only some motions will be decided in time. See Pet. Br.

46-47.

* * *

This Court should therefore read the provisions to-

gether as a coherent whole, and preserve a voluntary

departure recipient’s ability to seek reopening. A con-

struction, such as the Government’s, that eliminates

this right for this favored group of aliens would be in-

consistent with the statute.

II. TOLLING PRESERVES A VOLUNTARY DEPARTURE RE-

CIPIENT’S RIGHT TO A MOTION TO REOPEN AND Is

CONSISTENT WITH THE STATUTORY AND REGULATORY

Tolling the voluntary departure period while a mo-

tion to reopen is pending harmonizes the statutory pro-

visions. Although the Government contends (at 21)

that a tolling rule would be “extraordinary,” the De-

partment of Justice itself proposed tolling as one solu-

tion in 1997. See 62 Fed. Reg. at 10,325-10,326. In addi-

tion, four courts of appeals have agreed that tolling is

appropriate. See Pet. Br. 9 (citing cases). And of the

three courts that concluded that tolling does not apply,

there were two dissenting opinions in favor of a tolling

rule. Id.

In rejecting tolling, the Government cites three

regulations and this Court’s decision in Stone. None

speaks to Petitioner’s request that the voluntary de-

parture period be tolled during the pendency of a mo-

tion to reopen, and then restarted once the agency is-

sues a final decision.

A. The Agency’s Regulations Do Not Speak To

Tolling

The Government repeatedly invokes three regula-

tions to argue that the regulatory scheme precludes

12

tolling. See Gov’t Br. 10, 11, 19, 21,31, 34, 40. The Gov-

ernment’s insistence that these regulations provide the

dispositive. answer on tolling ignores the fact that. all

three were promulgated or revised as part of the same

1997 interim rule in which the Department suggested

tolling. 62 Fed. Reg. at 10,325-10,326, 10,331; 10,372-

10,373. Given that the wording of these regulations has

remained virtually. unchanged to this day, these same

regulations cannot now preclude a tolling solution. In-

deed, these regulations plainly do not speak to tolling

the departure period.

1. Extension Regulation Does Not Apply. The

Government argues (at 15, 21-22, 24) that Petitioner is

seeking an impermissible “extension” of his voluntary

departure period. See 8 C.F.R. § 1240.26(f). However,

tolling, by its nature, does not extend the voluntary de-

parture period but merely preserves. the number of

days in the period while the agency deliberates on an

alien’s motion to reopen.’ The distinction between toll-

ing and extensions is reflected in this Court’s own cer-

tiorari practice, where a motion for rehearing filed with

the court of appeals “toll[s] the start of the period in

which a petition for certiorari must be sought,” not-

withstanding the fact that the deadline is “mandatory

and jurisdictional” and this Court has “no authority to

extend the period for filing except as Congress per-

” See American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 556

(1974) (permitting tolling of statute of limitations notwithstanding

petitioners’ argument that “federal courts are powerless to extend

the limitation period beyond the period set by Congress”); see also

Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 473 n.2

(1975) (Marshall, J., concurring in part and dissenting in part) (not-

ing “the common understanding that tolling eatails a suspension

rather than an extension of a period of limitations”).

13

mits.” Missouri v. Jenkins 495 U.S. 33, 45 (1990) (em-

phasis added).

2. Reinstatement Regulation Does Not Apply.

The Government also suggests (at 44) that the agency’s

regulation limiting the “reinstatement” of voluntary

departure in certain circumstances, 8 C.F.R.

§ 1240.26(h), precludes tolling. But Petitioner is not

asking for a reinstatement of a departure period, but a

suspension of the period while his motion is pending.

Moreover, on its face, the regulation applies only to

cases in which the BIA “grants” a motion to reopen

during the voluntary departure window, and empowers

the agency to give those aliens an entirely new depar-

ture period, up to the statutory maximum. By saying

nothing about those motions left undecided during the

voluntary departure window, the regulation is consis-

tent with Petitioner’s more modest request to suspend

the departure clock while the agency considers his mo-

tion. phen

3. “Stay of Deportation” Regulation Does Not

Apply. Finally, the Government argues (at 34, 40, 44)

that 8 C.F.R. § 1003.2(f), entitled “Stay of deportation,”

is inconsistent with tolling the voluntary departure pe-

riod. The title alone demonstrates the regulation’s in-

applicability. As the Government observes (at 34), the

regulation provides that a motion to reopen does not

“stay the forced removal”—deportation—“of an alien

while that motion is being considered.” (Emphasis in

original.) Here, however, a deportation order is not be-

ing stayed because there was no such order in effect.

See 8 U.S.C. § 1101(a)(47) (defining “order of deporta-

tion”).

As the regulations specify, a final order of deporta-

tion does not become effective until after an alien over-

stays the voluntary departure period.. Under the regu-

14

lations, an immigration.judge who grants voluntary de-

parture “shall also enter an alternate order off] re-

moval.” 8 C.F.R. § 1240.26(d) (emphasis added). As-

suming the alien abides by certain conditions, this al-

ternate order remains inactive during the voluntary

departure period and only “become{s] final” upon the

“overstay of any voluntary departure period granted or

reinstated by the Board or the Attorney General.” - Jd.

§ 1241.1(f); Gov’t Br. 6." Thus, the stay regulation does

not apply for. the simple reason that it pertains to final

orders of deportation—which are distinct from a volun-

tary departure order, and which do not go into effect

until after an alien overstays the voluntary departure

period.

§ See also 8 C.F.R. § 1241.7 (alien who departs.“before the ex-

piration of the voluntary departure period granted in connection

with an alternate order of deportation or removal shall not be con-

sidered to be ... deported or removed”); id. § 1240.26(c)(3) (if alien

fails to post required bond, “the voluntary departure order shall

vacate automatically and the alternate order of removal will take

effect on the following day” (emphasis added)).

* The Government’s citation (at 7-8) to 8 U.S.C. § 1229¢(f) is

also inapposite. That provision states that no “court [shall] order a

stay of an alien’s removal pending consideration of any claim with

respect to voluntary departure.” 8 U.S.C. § 1229¢(f). As the pro-

vision speaks only to court-ordered stays of removal while an

alien’s case is on petition for review, it has no bearing on the toll-

ing of a voluntary departure period during the pendency of a mo-

tion to reopen before the BIA.

The Government also states that, under its reading of the

statutory scheme, a court of appeals lacks authority to stay a vol-

untary departure period pending review. As the Government con-

cedes, however, eight of the nine courts of appeals to have consid-

ered this question have rejected the Government’s view. Gov’t Br.

35-36 & n.15. The Government further argues (at 36) that none of

the courts of appeals has concluded that filing a petition for review

15

B. Stone Does Not Preclude Tolling

The Government (at 38-40) also relies heavily on

this Court’s decision in Stone v. INS, 514 U.S. 386

(1995), to argue for a no-tolling rule. But, as the Gov-

ernment admits (at 38), Stone was a limited exception

to the “normal tolling rule,” 514 U.S. at 398, i.e., that

motions to reopen or reconsider toll the time for seek-

ing judicial review. /d. at 397-398; see also Pet. Br. 34-

38. In Stone, the Court focused its analysis on a par-

ticular statutory provision in the INA and found that

Congress intended to craft an “explicit exception” to

the tolling rule in the “particular context” at issue in

that case. 514 U.S. at 397-398.

Moreover, Stone involved a jurisdictional deadline,

which, like other jurisdictional provisions, “must be

construed with strict fidelity to [its] terms.” 514 US.

at 405. By contrast, no such jurisdictional time bar is

implicated by Petitioner’s tolling request. And Stone

involved a final order of deportation, raising the ques-

tion whether a motion to reopen can render a final or-

der “nonfinal”; a voluntary departure grant, however,

is not a final order of deportation, and the alternate or-

der of deportation does not take effect until after an

alien overstays the voluntary departure period.

8 C.F.R. § 1241.1(; see also Pet. Br. 36-37.

To the extent that Stone bears on the tolling ques-

tion in Petitioner’s case, however, one of the rationales

“automatically triggers such a stay.” Yet there is one fundamen-

tal distinction between petitions for review and motions to reopen:

an alien may pursue a petition for review from abroad, see Pet. Br.

28 n.19, but, once an alien leaves the country, a motion to reopen is

deemed withdrawn, 8 C.F.R. § 1003.2(d). Thus, an automatic stay

is not required to preserve an alien’s ability to pursue a petition

for review.

16

of the decision supports tolling. As in Stone, the Court

should adopt a construction that would not force aliens

to make a “Hobson’s choice.” 514 U.S. at 398-399 (“This

choice is one Congress might not have wished to impose

on the alien.”); see also Pet. Br. 21-22.'°

Il. THE DEPARTMENT OF JUSTICE’S PROPOSED RULE

PROVIDES AN ALTERNATIVE TO TOLLING THAT UN-

DERCUTS THE GOVERNMENT'S ARGUMENTS AND OF-

FERS THE COURT ANOTHER POSSIBLE CONSTRUCTION

OF THE STATUTE

The Department’s proposed rule, which implicitly

acknowledges the need to reconcile the two statutory

provisions, reinforces many of Petitioner’s arguments.

Unlike the Government’s construction, but like a tolling

rule, the solution offered by the proposed rule safe-

guards motions to reopen for aliens granted voluntary

departure. The proposed rule thus provides the Court

with an alternative interpretation to tolling—one simi-

larly consistent with the statute—that could be used to

resolve this case.

A. The Proposed Rule Reveals The Shortcom-

ings In The Government’s Arguments

After neglecting to take a position on the issue for

more than a decade, the Department of Justice pro-

posed regulations last month to address the interaction

'0 The Government spends several pages (at 20-23) refuting

an argument for traditional “equitable tolling.” As explained in

Petitioner’s Brief (at 37 n.30, 49), even if this case does not fall

squarely under this Court’s equitable tolling jurisprudence, this

Court has drawn on equitable tolling principles to adopt a uniform

tolling rule to solve a statutory incongruity that had produced a

“loophole.” Young v. United States, 535 U.S. 43, 46-47, 50-51

(2002); cf. American Pipe, 414 U.S. at 554; Burnett v. New York

Cent. R.R. Co., 380 U.S. 424, 434-436 (1965).

17

of the two statutory provisions. 72 Fed. Reg. at 67,679.

The proposed rule harmonizes the two provisions and.

proposes a solution going forward. Several features of

this proposal demonstrate the problems with the Gov-

ernment’s analysis of the statute.

The Department proposed that “permission to de-

part voluntarily ... will terminate if the alien files a mo-

tion to reopen or reconsider the final administrative or-

der.” 72 Fed. Reg. at 67,679. As a result, an alien who

had previously been granted voluntary departure

would be able to file a motion to reopen and, like other

aliens, await a ruling on that motion. The Department

explained that its proposed rule is “intended to allow an

opportunity for aliens who have been granted volun-

tary departure to be able to pursue administrative mo-

tions [including motions to reopen] without risking the

imposition of the voluntary departure penalties.” Jd.

This proposal calls into question many of the Gov-

ernment’s arguments. First, the proposed rule, like the

tolling rule, seeks to protect an alien’s “opportunity ...

to pursue administrative motions” after a grant of vol-

untary departure. 72 Fed. Reg. at 67,679. Thus, the

Department apparently rejects the Government’s view

that Congress intended that the voluntary departure

bargain requires the forfeiture of motions to reopen.

Second, the proposed rule reflects the important

role of motions to reopen, including for those aliens who

have accepted voluntary departure. It “recognizes that

although an alien may request voluntary departure in

good faith before an immigration judge, the alien’s cir-

cumstances may change while an appeal is pending be-

fore the Board.” 72 Fed. Reg. at 67,679. As a result,

the proposal “ensures that the alien is not subsequently

penalized when such change in circumstances occurs”

and permits the alien to await a ruling on his motion to

18

reopen. I/d.; see also id. (listing examples of relevant

new facts that could develop)."'

Third, under the proposed rule, a voluntary depar-

ture grant would “automatically terminate[]”’ once an

alien filed a motion to reopen. 72 Fed. Reg. at 67,679,

67,682, 67,683. Notwithstanding the fact that the Gov-

ernment strenuously objects to a rule that would turn

on an alien’s “unilateral act” (at. 18 (emphasis in origi-

nal); see also, e.g., id. 21, 22; 24, 33, 46-47, 49), the pro-

posed rule does exactly that.

Fourth, the Department reaffirms that an alien

who accepts voluntary departure at the conclusion of

proceedings is not required to waive appeals. E.g., 72

Fed. Reg. at 67,676 (“(uJnder the current regulations,

as well as under [the] proposed rule,” such an alien “is

still able to file an appeal to the Board and present any

arguments with respect to the merits of the alien’s re-

movability and eligibility for any form of relief or pro-

tection from removal”); id. at 67,678."

_ Fifth, the proposed rule essentially eliminates the

Government’s concern (at 18) that a tolling rule would

“invite strategic behavior by aliens seeking to extend

their unlawful stay in the United States as long as pos-

'' The Department also explained that notwithstanding this

Court’s earlier view that motions to reopen are disfavored, Con

gress has since “provided that aliens may file a motion to reopen or

motion to reconsider.” 72 Fed. Reg. at 67,679.

2 The proposal also recognizes the importance of notifying

aliens of the consequences of accepting voluntary departure. See

72 Fed. Reg. at 67,682 (“To ensure that aliens are aware of the

consequences of filing a motion to reopen or reconsider prior to the

expiration of voluntary departure, ... the alien will be advised that

an order of voluntary departure shall be automatically terminated

upon filing a motion to reopen or reconsider{[.}”).

19

sible.” Such concerns, overstated even before the pro-

posed rule,’’ are eliminated in the future: If the De-

partment’s proposed rule goes into effect in anything

close to its current form, a decision by this Court per-

mitting tolling will affect cases already in the pipeline

and will not create any risks going forward.

B. The Solution Provided In The Proposed Rule

Offers An Alternative Means To Resolve This

Case

Tolling and the solution provided for in the pro-

posed rule are alternative interpretations of the statute

that harmonize the provisions in a way so as not to

eliminate the motion to reopen for aliens granted vol-

untary departure. Both interpretations thus avoid the

untenable reading that the Government sets forth in its

brief.

Even if this Court does not adopt a tolling rule, it

should reject the Government’s construction of the

statute. Instead, this Court can interpret the statute

consistent with the solution in the proposed rule: to

permit an alien granted voluntary departure to with-

draw the voluntary departure request and instead be

subject to a final order of removal. Such an alien would

be placed in the same position as other aliens (such as

criminal aliens and others who are not eligible for vol-

untary departure) and could await a ruling on his mo-

tion to reopen without being subject to additional pen-

alties.

'? See Part I.C.1 supra (noting that Attorney General found

“no pattern of abuse” before 1996 and that Congress defined the

contours of the right in 1996); see also Part 1.B.2 supra (noting

adjudication periods for motions to reopen).

20

Petitioner agrees with the Government that the so-

lution in the proposed rule reflects a permissible con-

struction of the statute. See 72 Fed. Reg. at 67,679

(“{t}he voluntary departure statute does not unambigu-

ously provide that permission to depart voluntarily is

irrevocable once granted”). Indeed, Petitioner actually

requested this relief.'*

Notwithstanding that the prospective proposed

rule is not binding in the instant case, the Court may

consider the Department’s solution and interpret the

statute consistent with it. Cf. Wisconsin Dep’t of

Health & Family Servs. v. Blumer, 534 U.S. 473, 496-

497 (2002) (adopting interpretation that was consistent

with agency’s “recently proposed rule”). Accordingly,

if this Court declines to adopt a tolling rule, it should

deem Petitioners voluntary departure grant with-

drawn, such that he would be subject to a final order of

removal instead.

IV. THERE IS NO AGENCY POSITION ON TOLLING THAT

WARRANTS DEFERENCE

On the question of tolling, the Government offers

an inchoate claim to administrative deference, appar-

ently pursuant to the principles of Chevron U.S.A. Inc.

* Petitioner raised this issue at every stage of the proceed-

ing. C.A. App. 9-10, Pet. App. 3 (seeking to withdraw voluntary

departure request, and instead be subject to a final order of re-

moval, when filing motion to reopen with the BIA); Pet. App. 2

(Fifth Circuit); Pet. 15; Pet. Br. 50 (“In the alternative, Petitioner

should be permitted to withdraw his request for voluntary depar-

ture and, instead, be subject to a final order of removal.”).

The proposed rule would not require that an alien specifically

request such relief (as Petitioner did); rather, the voluntary depar-

ture grant would terminate automatically. See, e.g., 72 Fed. Reg.

at 67,679.

21

v. Natural Resources Defense Council, Inc., 467 US.

837 (1984). See, e.g., Gov’t Br. 41 (referencing Chevron

deference). These arguments for deference are un-

availing; there is no agency view on tolling to which the

Court must defer.

As an initial matter, the Government’s invocation

of Chevron seems dubious. It offers Chevron deference

as a fallback argument—but where such deference ap-

plies, it is because “Chevron deference [is] owed to ad-

ministrative practice in applying a statute” because

“Congress delegated authority to the agency.” United

States v. Mead Corp., 533 U.S. 218, 226 (2001). Accord-

ingly, parties seeking such deference generally center

their case around the Chevron framework. And yet,

the Government did not mention deference of any sort

in its briefs below, and only now invokes Chevron on

page 41 of its brief as a peripheral argument it views as

“not necessary” to resolve the case. Gov’t Br. 40-41.

Nor has the Government consistently invoked Chevron

in other cases raising the tolling issue, even arguing

that the tolling question should be “reviewed de novo.”

Resp. Br. 13, Dekoladenu v. Gonzales, Nos. 04-2164 &

05-1737 (4th Cir. Sept. 19, 2005).'°

The Government’s. apparent hesitance regarding

Chevron is sensible; there is no authoritative agency

view on the tolling question to which the Court might

defer. The Government concedes (at 43) that there is

no precedential BIA decision addressing the question in

this case. And none of the bases identified by the Gov-

'5 See also Resp. Br., Azarte v. Ashcroft, No. 02-73947 (9th

Cir. Dec. 1, 2003) (no reference to deference); Resp. Br., Ugokwe v.

U.S. Attorney. General, No. 05-15237 (11th Cir. Dee. 19, 2005)

(making no argument for deference to an agency interpretation).

22

ernment (at 40) for the purported “longstanding posi-

tion” of the agency on tolling—not the pre-IIRIRA

BIA decision in Shaar, not the 1997 regulations, and

not the analysis of tolling in the preamble to the newly

proposed rule—merits deference. But even if these po-

sitions did warrant deference, the Court ought to reject

these views, as they constitute an unreasonable inter-

pretation of the statute. See Part I supra.

A. The BIA’s Decision In Shaar Does Not War-

rant Deference :

Addressing different statutory and iittala pro-

visions from those at issue in this case, the BIA deter-

mined, in a 7-5 decision, that the timely filing of a mo-

tion to reopen did not toll an alien’s voluntary depar-

ture period. Matter of Shaar, 21 I. & N. Dec. 541, 546-

549 (BIA 1996). Because it construes different statu-

tory provisions, Shaar does not merit any deference in

this case.

1. Shaar involved a different statutory scheme—

the statute at issue here had not yet been enacted.

Critically, the conflict between the statutory provisions

on which Petitioner’s arguments for tolling are based

did not exist in Shaar. And, conversely, the key ration-

ales that might justify the no-tolling rule in Shaar are

absent under current law. |

As the BIA mentioned, an alien who filed a motion

to reopen during his voluntary departure period was

not “without recourse” because he could seek an exten-

sion, the duration of which was not capped at that time.

21 I..& N. Dec. at 548 (citing 8 C.F.R. § 244.2 (1995)).

The length of the voluntary departure periods them-

selves were likewise not constrained by statute. See 8

U.S.C. §§ 1252b(e)(2), 1254(e) (1994) (revised and re-

codified at 8 U.S.C. § 1229¢ in 1996). The unlimited

base and extension periods for voluntary departure left

23

a longer window for the agency to resolve the motion to

reopen. For example, Shaar himself had an eight-

month voluntary departure period that was further ex-

tended by almost six months. 21 I. & N. Dec. at 542.

Additionally, motions to reopen at that time were

merely products of regulation receiving little or no pro-

tection. See id. at 547; see also 8 C.F.R. §§ 3.2, 3.8

(1994). And, the statute offered additional flexibility,

providing for an exception to the applicab!’ penalties

for overstaying the voluntary departure period because

of “exceptional circumstances.” -. See 8 U.S.C.

§ 1252b(e)(2)(A) (1994) (repealed by IIRIRA in 1996)."°

The changes effected by IIRIRA render Shaar ir-

relevant.'’ Even the First Circuit, which rejected toll-

ing, emphasized that “(ojur decision does not in any

way turn on Shaar” and noted its “likely infirmity.”

Chedad v. Gonzales, 497 F.3d 57, 64 (1st Cir. 2007); cf.

Public Citizen, Inc. v. HHS, 332 F.3d 654, 659 (D.C.

'© The substantial statutory changes and the lack of any evi-

dence of Congress’s awareness of Shaar eliminate any argument

that Congress ratified Shaar. See Bragdon v. Abbott, 524 U.S. 624,

645 (1998) (finding ratification evident where legislation included

“repetition of the same language” previously interpreted); Brown

v. Gardner, 513 U.S. 115, 121 (1994) (where “there is no ... evi-

dence to suggest that Congress was even aware of the [agency’s]

interpretive position[,] we consider ... re-enactment to be without

significance” (internal quotation marks omitted)).

'’ See Franklin v. Massachusetts, 505 U.S. 788, 822 (1992)

(Stevens, J., concurring in part and concurring in the judgment,

joined by Blackmun, Kennedy, and Souter, JJ.) (“If the justifica-

tion for [an agency’s] decision no longer obtain[{s], the refusal to

reconsider would be quite capricious{]}” because “{iJnertia cannot

supply the necessary rationality” for an agency’s ratification of

prior policy in the face of changed circumstances (internal quota-

tion marks omitted)).

24

Cir. 2003) (rejecting Chevron deference where the

“only potentially relevant regulations ... were promul-

gated before [the relevant statute] was enacted”).

2. The Government (at 43-44) seeks to reinvigo-

rate Shaar by asserting that the BIA has “continued to

apply the rule announced in Shaar.” However, the

Government concedes (at 43) that the BIA has not is-

sued a “precedential” decision on the tolling question

since Shaar. Instead, the Board has issued non-

precedential decisions, such as the single-member deci-

sion in this case, that reject tolling in particular cases.

Such decisions, however, do not change the fact that

Shaar did not interpret the relevant statutory provi-

sions. Nor do they warrant Chevron deference of their

own accord. Mead made clear that Chevron deference

is only due where Congress has delegated authority “to

make rules carrying the force of law, and ... the agency

interpretation claiming deference was promulgated in

the exercise of that authority.” 533 U.S. at 226-227.

Non-precedential BIA decisions—including all single-

member decisions and three-member decisions not des-

ignated precedential, see 8 C.F.R. §. 1003.1(e)(6)(ii),

(g}—are not promulgated “in the exercise” of the BIA’s

authority “to make rules carrying the force of law.”

3. The Government’s invocation of Chevron def-

erence based on Shaar is particularly peculiar because

it represents an about-face in its understanding of

Shaar and the BIA’s use of Shaar. In Banda-Ortiz, the

first Fifth Circuit case to reject tolling, the Govern-

ment argued that “the Board’s decision in Matter of

Shaar does not control the result in this case.” Resp.

Br. 20 n.7, Banda-Ortiz v. Gonzales, No. 04-61100 (5th

Cir. May 9, 2005). And in its brief to the Third Circuit

in Kanivets, in which Kanivets was arguing that Shaar

was not controlling, the Government acknowledged

25

that “the Board said that Matter of Shaar does not con-

trol Kanivets’ case because it involved a different

statutory scheme.” Resp. Br. 7, Kanivets v. Gonzales,

Nos. 03-3569 & 03-4187 (3d Cir. Jan. 16, 2004).

B. The 1997 Regulations Provide No Basis For

Chevron Deference |

The Government argues (at 44) that the no-tolling

rule “accords with the interim rule that the Attorney

General promulgated to implement IIRIRA on March

6, 1997.” Any argument for deference to this rule is

misplaced because it expressly left open the tolling

question. The Department had “considered several op-

tions [regarding the effect of a motion to reopen on a

voluntary departure period], but has not adopted any

position or modified the interim rule.” 62 Fed. Reg. at

10,326 (emphasis added).'* The Department promised

to address this question in a “final rule.” Jd. Both the

Department and the Government’s Brief in Opposition

acknowledge that “no final rule directly addressing

those issues has been published.” 72 Fed. Reg. at

67,677; see also Opp. 14-15 & n.5 (arguing that new

regulations would soon resolve the question presented).

This statement implicitly concedes that the 1997 regu-

lations do not resolve the tolling question.

C. The Analysis Of The Tolling Question In The

Preamble To The Newly Proposed Rule Does

Not Warrant Chevron Deference

The Government (at 48) seizes on the discussion of

tolling in the newly “proposed rule’s introductory text”

and suggests that this discussion warrants Chevron

7 By declining to “adopt{} any position,” 62 Fed. Reg. at

10,326, the rules plainly did not take any position on Shaar.

26

deference. The sole authority the Government cites for

deference to a proposed rule preamble is Smiley v.

Citibank (S.D.), N.A., 517 U.S. 735 (1996). Nothing in

Smiley, however, supports Chevron deference for a

proposed rule, much less a preamble to a proposed rule.

When Smiley noted that the Court should not “ig-

nore the agency’s current authoritative pronouncement

of what the statute means,” it was referring to “a full-

dress regulation, issued by the Comptroller himself and

adopted pursuant to the notice-and-comment proce-

dures of the Administrative Procedure Act designed to

assure due deliberation.” 517 U.S. at 741, 744 n.3.

Analysis in a proposed rule’s preamble is in every per-

tinent way not an “authoritative pronouncement”—it

does not have the force of law, has not been subject to a

deliberative process such as notice and comment, and is

subject to revision, or rejection, by the agency.

Indeed, this Court has never deferred to a pream-

ble in a proposed rule. Under Mead, the nascent status

of this sort of agency view precludes Chevron defer-

ence, which is due only when Congress has delegated

authority “to make rules carrying the force of law, and

... the agency interpretation claiming deference was

promulgated in the exercise of that authority.” Mead,

533 U.S. at 226-227. Unlike the final rule in Smiley,

neither the preamble to a proposed rule nor the pro-

posal itself carries the force of law. See Commodity

Futures Trading Comm’n v. Schor, 478 U.S. 833, 845

(1986) (“It goes without saying that a proposed regula-

tion does not represent an agency’s considered. inter-

pretation of its statute and that an agency is entitled to

consider alternative interpretations before settling on

the view it considers most sound.”).

Accordingly, the purported “longstanding practice”

of the BIA does not warrant Chevron deference based

27

on Shaar, the 1997 regulations, or the preamble to the

proposed rule.'?

CONCLUSION

The judgment of the Fifth Circuit should be re-

versed.

r Even Skidmore deference has limited relevance to the toll-

ing question here and is not expressly sought by the Government.

Under Skidmore, a court “follow(s] an agency’s rule only to the

extent it is persuasive.” Gonzales v. Oregon, 546 U.S. 243, 269

(2006). For the reasons explained in Part I, supra, however, a no-

tolling rule, like any rule that does not permit the voluntary depar-

ture and motion to reopen provisions to coexist, is contrary to the

language of the statute. Indeed, for the same reason, even if Chev-

ron deference were to apply, the agency’s construction would fail

as an unreasonable interpretation of the statute.

SETH P. WAXMAN

RACHEL Z. STUTZ

WILMER CUTLER PICKERING

_ HALE AND DORR LLP

1875 Pennsylvania Avenue, NW

Washington, DC 20006

(202) 663-6000

RAED GONZALEZ

QUAN, BURDETTE & PEREZ, P.C.

5177 Richmond Avenue

Suite 800 .

Houston, TX 770

(713) 625-9225

DECEMBER 2007

Respectfully submitted.

CHRISTOPHER J. MEADE

Counsel of Record

ANNE K: SMALL

ELOISE PASACHOFF

JODIE MORSE

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue .

New York, NY 10022

(212) 230-8800

MEGAN BARBERO

SYDENHAM B. ALEXANDER III

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000