Petitioners Brief — Dada v. Mukasey

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5306S

CD NOV 5 - 2007

64ver No. 06-1181

IN THE

Supreme Court of the Rnited States

SAMSON TAIWO DADA,

Petitioner,

PETER D. KEISLER,

ACTING ATTORNEY GENERAL,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

SETH P. WAXMAN

RACHEL Z. STUTZ

MICHAEL J. GOTTLIEB

WILMER CUTLER PICKERING

HALE AND DORR LLP

1876 Pennsyivania Avenue, NW

Washington, DC 20006

(202) 663-6000

RAED GONZALEZ

QUAN, BURDETTE & PEREZ, P.C.

5177 Richmond Avenue

Suite 800

Houston, TX 77066

(718) 625-9225

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

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

QUESTION PRESENTED

Whether the filing of a motion to reopen removal

proceedings automatically tolls the period within which

an alien must depart the United States under an order

granting voluntary departure.

(i)

TABLE OF CONTENTS

Page

re Ne SI EI II ccccitccncennenscencntscemnmaptnecnesiinatbindin i

Ne ee Ce ID cicceneccrosnncesecsssnanncnnindeniniess vi

IIE TTIITTILT niciddindiciisesigeeneniseenndelendntstaciarsinatadaeeets 1

tS eae SE On EEO 1

STATUTES AND REGULATIONS INVOLVED.......... 2

INTRODUCTION AND STATEMENT OF THE

eT TD ceteiesshsinltsinibataieeiipiteaencinindcmeialanibthciitiaithitennteineneaeiant 2

A. The Statutes And Regulations Govern-

ing Motions To Reopen And Voluntary

ERE TALI NS a ee Te 2

Be RE Fee NN cccnrecicniensniscnsisnnninieerentiatepinnns 2

DF IO ncscreccnicsnttnsnscccsccnsncconsts 5

3. The Intersection Of The Statutes

Be INN sscisticeccincinstcesiitnngnsiinteipensiapienendeiiiend 8

hs Fee IT cnsenicnsecsinssinctentaneinennenianninensins 9

SUMMARY OF ARGUMENT.....0.........cccecscceseeeeeneeees 11

Te ciintinicniicimstinitsbiniteisctaiiiiagiendintatheddibaiandimleisaiibliabiaiatin 12

Il. UNDER BASIC STATUTORY INTERPRETA-

TION PRINCIPLES AND THIS COURT'S

PRECEDENTS, A TIMELY MOTION TO RE-

OPEN TOLLS THE VOLUNTARY DEPARTURE

SESS es Ae erence ae Net One een 12

A. This Court’s Precedents Support A

Construction That Preserves A Volun-

tary Departure Recipient’s Right To A

SE SP CNN Rirccticcnaicniinsinnspnennintiiniatenemecsneit 12

(iii)

TABLE OF CONTENTS—Continued

1. Reading the statute as a whole re-

ee 13

2. This Court should not presume

that Congress created a Hobson’s

choice or an arbitrary system .................... 21

B. The Statutory Structure Does Not Re-

quire Voluntary Departure Recipients

To Explicitly Or Implicitly Waive

Their Motions To Reopen Or Other

Administrative Appeals .............cscssssssceseeeeeees 24

C. The 1996 Amendments Indicate That

Congress Did Not Intend To Privilege

Criminal Aliens Over The Favored

Class Of Aliens Eligible For Voluntary

D. In Other Contexts, This Court Has

Concluded That A Motion To Reopen

Or Reconsider Tolls An Otherwise Ap-

plicable Statutory Time Period......................... 34

II. CONSTITUTIONAL AVOIDANCE STRONGLY

FAVORS AN INTERPRETATION THAT PER-

ES RES A 38

A. A No-Tolling Rule Would Raise “Seri-

ous Constitutional Doubts” Under The

Sy cccerseenensenn ee

1. A no-tolling rule implicates liberty

interests protected by the Due

Pi icetitcencsivininctimimemntnenncmnmns 39

TABLE OF CONTENTS—Continued

2. A no-tolling rule raises due process

concerns over aliens’ property in-

terests In MOtIONS tO FEOPEN...........ccceereees 42

B. The Arbitrary Treatment Of Aliens

Granted Voluntary Departure Under

A No-Tolling Rule Raises Equal Pro-

Reetiars CCIE IIIB ccncsccenciesseensntenacnnimnibeneiioninainniiie 46

C. The Constitutional Avoidance Canon

Favors A Construction Of The Statute

TOOK PUPS FORE ctinncecnsistnscvniavintsiisataiigiiniia 47

Ill. AT A MINIMUM, THE COURT SHOULD TOLL

THE VOLUNTARY DEPARTURE PERIOD IN

,, , 0 SR Pee 49

CL UIOIIN excecccseessesessscnveessssnecsnsnstnnninnesensepenienniiindiaii 50

TABLE OF AUTHORITIES

CASES

Page(s)

American Manufacturers Mutual Insurance

Co. v. Sullivan, 526 U.S. 40 (1999)........ccccecseeceeeeeees 44

Arnett v. Kennedy, 416 U.S. 134 (1974)... .ccccseeceeenenes 45

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

EEE eee 9,10

Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir.

2006), cert. denied, 127 S. Ct. 1874 (2007) ....9, 11, 25,

29, 45

Bates v. Dow Agrosciences LLC, 544 U.S. 431

SEES ESE eso 27

Bowles v. Russell, 127 S. Ct. 2360 (2007).............00 36, 37

Bridges v. Wixon, 326 U.S. 135 (1945)... eeeeeeeeees 39, 41

Brockett v. Brockett, 43 U.S. (2 How.) 238

ETS EE RAAT Co a 34

Carlson v. Landon, 342 U.S. 524 (1942) 0.00... eeeeceeeeeees 39

Chedad v. Gonzales, 497 F.3d 57 (1st Cir. 2007)..... 9, 25, 29

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

fense Council, Inc., 467 U.S. 837 (1984)... cceeeeeee 23

Chew Hoy Quong v. White, 244 F. 749 (9th Cir.

EEE ERS ee a ee 3

City of Cuyahoga falls v. Buckeye Commu-

nity Hope Foundation, 538 U.S. 188 (2003) ........... 46

Clark v. Martinez, 543 U.S. 371 (2008) .............. 38, 47, 48

Clymore v. United States, 217 F.3d 370 (5th

See 50

Cook County, Illinois vy. United States, 538

iil licen deapernesneummneennennent 26

Costello v. INS, 376 U.S. 120 (1964) ........ccccecceeeee passim

Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir.

2006), petition for cert. filed (U.S. Mar. 22,

a prtetcceinanseentinncmiesnees 9, 25, 29

Delgadillo v. Carmichael, 332 U.S. 388 (1947)........0040+ 23

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Demore v. Kim, 538 U.S. 510 (2003) ................... 29, 39, 40

Dent v. West Virginia, 129 U.S. 114 (1889)... eee 40

Digital Equipment Corp. v. Desktop Direct,

Rn, EE aes SP cercagnceneanemnetenneeninecemmniesaeen 14

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Construction Trades

Council, 485 U.S. 568 (1988) .............ccccccccssccsssoseeseee 47

Ex parte Chan Shee, 236 F. 579 (N.D. Cal.

STi kaspenitinianieieaseiaisiniaidileaidastamaidiiaciiatatiainsingimmpaninsteenns 3

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) ...........000 21

Galvan v. Press, 347 U.S. 522 (1954) 20... eceeeseeeeneeeneee OD

Gonzaga University v. Doe, 536 U.S. 273 (2002)........... 31

Gonzales v. Carhart, 127 S. Ct. 1610 (2007)................... 48

Harrison v. PPG Industries, Inc., 446 U.S. 578

i cnsiisiietitatiilaseniariticiintnsvainenisadieietaiiatsebemaneentitittnen 19

ICC vy. Brotherhood of Locomotive Engineers,

I inicaicintiisnireainniie lh cianiecinmmennitniiii 34

INS v. Doherty, 502 U.S. 314 (1992) ...........c.scsscescesceseeeees 3

INS v. Rios-Pineda, 471 U.S. 444 (1985) 0... ceesseeeeeeeees 3

INS v. St. Cyr, 533 U.S. 289 (2001) ............ccseceseee passim

James v. Strange, 407 U.S. 128 (1972) .......csecesceseereeeenes 46

Jay v. Boyd, 351 U.S. 345 (1956) ........cssesecsessesesseeeses 44

Kanivets v. Gonzales, 424 F.3d 330 (3d Cir.

SU adicphiitteiesittiadeliatactahiinebianensinenenntitigiqningenusiioaudenmias 9, 10

King v. St. Vincent’s Hospital, 502 U.S. 215

SET iiceiicnecinnsesicttnciinatiiniiniitediiaeineniebianinaediiieniganainnes 13

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

I cctnithieccsatvvinsalinipnbcseiniaie: secmeaptvadiieg 43, 44, 45, 46, 47

Matter of A-M-, 23 1. & N. Dec. 737 (BIA 2005)....... 19, 37

Matter of Arguelles-Campos, 22 |. & N. Dee.

ee ee CE icin ececntnnnisincenlictnnsimtnteniennnenimenons 26, 31

Matter of Arriazola-Hernandez, 2007 WL

2463984 (BIA July 31, 2007)..........sccssessccsceseserseesees 23

Viii

TABLE OF AUTHORITIES—Continued

Page(s)

Matter of Barragan-Toro, 2007 WL 2074428

RS ees ere ee 23, 40

Matter of Bastos Borges, 2007 WL 1192549

I inicio 22, 40

Matter of Chouliaris, 16 1. & N. Dec. 168 (BIA

SPT ducisenioseenieseinicicnditilciaetatinanaitipicunidiaiiaiiaiaieabiaiiaataies 19, 37

Matter of Estrada-Campos, 2007 WL 2463956

ee A Se atinreicsiseniintecinniatiiisipnemninnsbbidaiinnincsnseaes 22

Matter of Guerrero, 2007 WL 2299599 (BIA

ST i cissiniicitaiststacarenentennenleatiieniiiatnaiiliiaiaiitistaniiaaed 22

Matter of Madramuthu, 2007 WL 1129362

STE dacnsiniticcciinnjicinsinnsitensdniiianbiiniiinnsines 22

Matter of Mendiola, 2007 WL 2074492 (BIA

+ IIR ree seers Se eee ee a eee 22

Matter of Ocampo-Ugalde, 22 1. & N. Dee. 1301

STITT dnsiiciinecinhttnieenenennintaienpntineninaaingtiimaiunsiunninegs 27

Matter of Patino, 23 I. & N. Dec. 74 (BIA 2001).....27, 49

Matter of Raja, 2007 WL 1168550 (BIA Mar. 2,

STU ciisliiciteindascinneetsuianiacnsanindepaccibiduaiatntabdiasinataittinnumsiteeiaii 22

Matter of Shaar, 21 1. & N. Dec. 541 (BIA 1996).......... 20

Matter of Villegas Aguirre, 13 I. & N. Dec. 139

ED STi cashchinseninniesicieeneniieciteniatiiuniiotaniiitpinidibinentinnss 19, 38

Missouri v. Jenkins, 495 U.S. 33 (1990)............. 34, 36, 37

Morse v. United States, 270 U.S. 151 (1926)............ 34, 35

Mullane v. Central Hanover Bank & Trust

Cig SE es SN CIEE cccccrsanncsesnscmensensmnatsnnnersccnensnes 43

Navarro-Miranda vy. Ashcroft, 330 F.3d 672

Re ee icinssscrcnndcinmncetigiiiataneinenpinianinunidmeaniiee 21

New York State Conference of Blue Cross &

Blue Shield Plans v. Travelers Insurance

cn i niertireeenecinttiimtaietintinnectacapsnnens 31

Ng Fung Ho v. White, 259 U.S. 276 (1922) ..........seseeees 39

TABLE OF AUTHORITIES—Continued

Page(s)

Nixon v. Missouri Municipal League, 541 US.

SUIT isssicdaticithiainsiinnskasiiaieaiatnitinibipaniietininiaeibialamesenneded 33

Ohio Adult Parole Authority v. Woodard, 523

Se SIT iscsi heiesccdeaneiciteieiedsiadannpitnnindeatiinitndeediids 41, 42

Reno v. Flores, 507 U.S. 292 (19938) ............cccesccccssereeees 39

Reynoso-Cisneros v. Gonzales, 491 F.3d 1001

ee ee hciiikssnieescnecitisicinitiiliastamiaaicniaiteenininntgmaninnanens 21

Rinaldi v. Yeager, 384 U.S. 305 (1966) 0.0... cesses 46

Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007)............. 24

Sandin v. Conner, 515 U.S, 472 (1995) ........ccceccesessscseees 46

Shell Oil Co. v. lowa Department of Revenue,

Re I deiiccniniesininniieniaiatinlinimntiniensscienmenes 13

Shiver v. United Stetes, 159 U.S. 491 (1895) ................. 18

Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir.

TTI cicsicinicsiiiieenteblaaatteaitinritainicitithinaitadaaeaigmtiodl 9, 10, 49

Small v. United States, 544 U.S. 385 (2005)............ 32, 33

Stone v. INS, 514 U.S. 386 (1995)............ 21, 22, 34, 35, 37

Tulsa Professional Collection Services, Inc., v.

PR re ee Se OD cettcesninntnscnssereniiitidimmmainnean 44

Ugokwe v. U.S. Attorney General, 453 F.3d

ee ee ee nicienciniscecisentincibinninnninnanminnainns 9

United States v. Dieter, 429 U.S. 6 (1976).......... 34, 35, 36

United States v. Healy, 376 U.S. 75 (1964).............. 34, 36

United States v. Ibarra, 502 U.S. 1 (1991)......... 34, 35, 50

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

TET inieihieiteindieieeachnlaiaisiniideseasiipsauitiaiaaitaiiatdialainiinmaet 24

United States v. Mendoza-Lopez, 481 U.S. 828

Ieee icitniesernbcentanneiciniaiibiaalinimaneaasiataiabinatestiaiatasniaieali 27, 49

United States v. Morton, 467 U.S. 822 (1984)................ 13

United States v. Wilson, 503 U.S. 329 (1992) ......00........ 23

United States v. Witkovich, 353 U.S. 194 (1957)..... 14, 18, 48

United States ex rel. Accardi v. Shaughnessy,

Be es CD recscccersemseemmsnsteetedpeensmnscensiennseciens 41

TABLE OF AUTHORITIES—Continued

Page(s)

Vitek v. Jones, 445 U.S. 480 (1980)........... eee 40, 43, 45

William v. Gonzales, 499 F.3d 329 (4th Cir.

SITET cicneccinesthenikiacsndsiipinimeitaiatenindintinntiinianstiaacinapteaeenncets 21

Winkelman ex rel. Winkelman v. Parma City

School District, 127 S. Ct. 1994 (2007)............ccceeeeee 26

Wolff v. McDonnell, 418 U.S. 539 (1974).......ccceeees 40, 41

Yamataya v. Fisher, 189 U.S. 86 (1903).......ccccseeseeees 39

Young v. United States, 535 U.S. 43 (2002) ............. 37, 49

Zadvydas v. Davis, 533 U.S. 678 (2001) ........cececeees 41,48

STATUTES, REGULATIONS, AND RULES

Immigration and Nationality Act, 8 U.S.C. § 1101, et seq.

alata eilteniaball 30

ne nN te 36

| TESTI ereenmoeNTn seem e 35

I oasis etetasiceaniiaiasinietateilametiitareeaidl 28

Na aaa allah dala 6

AAT eae Nt eM ET 29

TTI ce erro ran eee se 6

ER eae ean oe mene nS en Hone mE 7

| SK verre om er eae oe 7

| Ee See eee eNO TTT 25

aaa tatiana anarecaiaiatiiaiiniatinimeatell 30

sss ERS SRRERERRE TN Ererarawevennesaay ism nr weer me 17

aaa da eanianlinialall 7

iO SNE ms 39

(SESE aenorn enna ee ss 4,17

i Ia iserenrsitnremeeennpieeileniemmannnnignnnenit passim

ail ease 25

el 6, 30

| EERE ereEn I een nese nT 6

ae eee eee NNN o See 2,11

TABLE OF AUTHORITIES—Continued

Page(s)

fees 2, 5, 17, 30

Sp TTT nsscicesiscesitteceneiaianaeienestiecnnininteibenisicepmumitiis 7,17

i ST incsteslenishncscnecenteciitmnteinannsniinenseniatetiinbddiaiial 2,6

TT cissionidiniiactteerinieamiaiiciatimenibsaiati 2,5, 7, 17, 30

BE iiiticnnternnnteinniinnnnicenentensensinmniiniaiiaini 7,17

eT iniictinctnntepenanienantienningneteigeeninnimaunsiiiiai 7, 8, 20

BT ais ccinenintmenantintitictemansnuiinnianbsinti 7, 28, 49

ETT iniiiniicitecidelateceneniniaicerinnetnsasinnitenaiiinbiniisiaita 6

IID viitistnntiinprtnstednscinensdasniniinennennimnennniiiviias 6

| ete 28

I ett iastneeensenincnrenandnepscnnnreesentenmncsusnniincnintiitiil 35

i eniciiiciissrscneienieensientniemmenteneainnnaniesicatiadal 6

I incinnictetsniensvietemniorincnnsennnennnioheenaniiinl 6

FE UIT ctpsenishddtusntsinthinemenenincenmninnebatiings 6, 20

i tt dicietntiiendinssntdassesieunpeinbenennneeinenneninenenenennnitiniei 6

pS lnichsieietaiscitiedinachitanidnisannitnpequiidadonemnianenenepeenipeictintiiniaianid 6

rT iicniosicshtbdiiviesiiinighanidinsapnesdindecnbdtabinetadeniaiatiaiieaieiiadila 7

ST TID it stdpincnentenninsiompenisinmnesitonsnenidninnniaaenieemaanttl 35

I sree cincinnati tebaidaeiinmeieniataial l

Se a aaa capnnnrattecneaenimetamnieniienes 36

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

104 Stat. 4978 (codified as amended in vari-

Co EE 5 3

Illegal Immigration Reform and Immigrant Re-

sponsibility Act, Pub. L. No. 104-208, div. C,

110 Stat. 3009 (1996) (codified as amended in

various sections of 8 U.S.C.)...........ccc0ee 3, 4, 25, 28, 30

8 C.F.R.

EEL a ae CERRY Leer aU Dr 3

TL Ae Caer MN Maer NN: 4

nem. 31

| CT een en eee mee renee or 5

SD FR IEE cccccevesecccensvesssesnsesnnsnessevsenevensensonensssnenenaes 24

xil

TABLE OF AUTHORITIES—Continued

Page(s)

Oe ee cescrsncenssnsvercsnconnetensssnetintssnmesematianmeititiel 5

has cscotencomestesnenqneenanoconneioomsennnentinssiatis 2,8, 21, 31

TT sinensieteteiineesecnneccensdtienseiientesenmntiastenbennenidientiin 31

5 Ce 25

Gf eee 6, 25

§ 1240.26(C) .....cceseeeees peeebiinanaisiianecingiaatmapicennienasianied 26

BP i iecctecnnscnrinesscnessenensvasssenennnnensesensdsenstessiiestil 36

Be icansccnennncsemmnnatniasembnnnnetenennesnemenennaatsin 24

I Ta ITriateteaieddtpaaetamnpeeneninatnemmnenatenineccethetatiis 37

23 Fed. Reg. 9,115 (Nov. 26, 1958) ........esssceeeeeeseeseeees 2; 4

59 Fed. Reg. 29,386 (June 7, 1994) 0.0... ccceseeeeeseeneeneeees 4

60 Fed. Reg. 24,573 (May 9, 1995) .........ccsssssesrseeeseeenees 4

61 Fed. Reg. 18,900 (Apr. 29, 1996)............cescsseeeseeseeeeees 4

62 Fed. Reg. 10,312 (Mar. 6, 1997) .............. 6, 8, 18, 24, 26

67 Fed. Reg. 54,878 (Aug. 26, 2002) ..........csseecees 5, 23, 24

Bi AR. Fl: ie caeecrcinncinsinctirtntnnsitbincantcememnennceninmnarensi 36

LEGISLATIVE MATERIALS

142 Cong. Rec. S4592 (May 2, 1996) 0.0... ccceecseseeeseeees 32

H.R. Conf. Rep. No. 101-955 (1990), as re-

printed in 1990 U.S.C.C.A.N, 6784 on. cceccseeseeseneenees 4

H.R. Conf. Rep. No. 104-828 (1996) ...........eeceeeeseeeeees 19

H.R. Rep. No. 104-469, pt. 1 (1996)... eeeeeeteeeeeeeee 19

H.R. Rep. No. 104-22 (1996).......ccccoccrscscccesesssescessseessesees 30

S. Rep. No. 104-48 (1995)..........ccscssessessseceesseeseeeeees 30, 32

S. Rep. No. 104-249 (1996) .........ccsscssssecssssssesseseesensseseesees 19

Criminal Aliens in the United States: Hearings

Before the Permanent Subcommittee on In-

vestigations of the Senate Committee on

Governmental Affairs, 103d Cong. (1993) .......++0+ 32

xiii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Attorney General’s Report to Congress on Con-

solidation of Requests for Relief from De-

SPRRETNE CSO ED ccteisnsictactinanseniinsmannnnimenses

DHS, Performance Budget Overview (FY

2007), available at http://www.dhs.gov/

xlibrary/assets/Budget_PBO_F Y2007.pdf....

DOJ Executive Office for Immigration Review,

FY 2006 Statistical Year Book (2007),

available at http://www.usdoj.gov/eoir/

68 Interpreter Releases 907 (July 22, 1991).........

Page(s)

IN THE

Supreme Court of the United States

No. 06-1181

SAMSON TAIWO DADA,

Petitioner,

PETER D. KEISLER,

ACTING ATTORNEY GENERAL,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1) is

unreported, but is available at 2006 WL 3420124. The

decision of the Board of Immigration Appeals denying

Petitioner’s Motion to Reopen and Reconsider (id. 3-4),

the decision of the Board affirming the immigration

judge’s decision (id. 5-6), and the decision of the immi-

gration judge (id. 7-9) are also unreported.

JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1254(1). The judgment of the court of appeals was en-

tered on November 28, 2006. The petition for a writ of

certiorari was filed on February 26, 2007 and granted

on September 25, 2007.

STATUTES AND REGULATIONS INVOLVED

The following statutory and regulatory provisions

are set forth in relevant part in the petition:

a. 8 U.S.C. § 1229a(c)(7) (Pet. 2);

b. 8 U.S.C. § 1229e(b) (Pet. 3);

ce. 8&C.F.R. § 1003.2(d) (Pet. 5).

INTRODUCTION AND STATEMENT OF THE CASE

As part of its amendments to the Immigration and

Nationality Act (INA) in 1996, Congress codified an

alien’s right to file a motion to reopen removal proceed-

ings. 8 U.S.C. § 1229a(c)(7). Congress in 1996 also es-

tablished new eligibility criteria and time periods for

“voluntary departure,” which is a form of discretionary

relief that allows a favored lass of aliens “voluntarily

to depart the United States” as an alternative to re-

moval. Jd. § 1229e(a)({1), (b)(1).

This case raises an important question about the in-

tersection of these two provisions, namely, whether the

timely filing of a motion to reopen under 8 U.S.C.

§ 1229a(c\(7) tolls the period of voluntary departure

under 8 U.S.C. § 1229c. Without tolling, aliens granted

voluntary departure are effectively denied their statu-

tory right to seek reopening. The alien must remain in

the country and hope that the immigration official re-

solves his motion in time. If he leaves, his motion is

deemed withdrawn. If he stays and the motion is unre-

solved, as is so often the case, he faces penalties includ-

ing ineligibility for reopening.

A. The Statutes And Regulations Governing Mo-

tions To Reopen And Voluntary Departure

1. Motions To Reopen

For more than 90 years, motions to reopen have

been a part of deportation proceedings. 23 Fed. Reg.

9,115, 9,118-9,119 (Nov. 26, 1958) (promulgating 8

C.F.R. §§ 3.2, 3.8 (motions to reopen and for reconsid-

eration)); see also, e.g., Chew Hoy Quong v. White, 244

F. 749, 750 (9th Cir. 1917); Ex parte Chan Shee, 236 F.

579, 580 (N.D. Cal. 1916). In 1996, as part of the Illegal

Immigration Reform and Immigrant Responsibility Act

(IIRIRA), Congress first codified an alien’s right to a

motion to reopen. Pub. L. No. 104-208, div. C,

§ 304(a)(3), 110 Stat. 3009-546, 3009-593 (1996) (codified

at 8 U.S.C. § 1229a(c)(7)).

Before enacting this provision, Congress consid-

ered the issue for a number of years. As of 1990, the

regulations governing motions to reopen did not have

any time limits or limits on the number of motions an

alien could file. See 8 C.F.R. § 3.2 (1989). In 1990, Con-

gress instructed the Attorney General to conduct a

study on perceived abuses associated with aliens’ fail-

ure to consolidate their requests for relief and to issue

regulations specifying the maximum time period for fil-

ing motions to reopen. See Immigration Act of 1990,

Pub. L. No. 101-649, § 545(c), (d), 104 Stat. 4978, 5065-

5066. '

The Attorney General’s report found “no pattern of

abuse” with respect to aliens failing to consolidate their

requests, noting that the total number of motions to re-

open was “relatively low” and the majority of requests

for relief were appropriately “based upon an allegation

of new facts,” as required by the regulations then in

place. Attorney General’s Report to Congress on Con-

' Around the same time, this Court expressed similar con-

cerns. See, e.g., INS v. Doherty, 502 U.S. 314, 322-323 (1992) (in-

volving pre-1990 motion to reopen) (noting that “[t)here is no

statutory provision for reopening of a deportation proceeding” and

expressing concerns about possible abuse); /NS v. Rios-Pineda,

471 U.S. 444, 446, 450 (1985).

solidation of Requests for Relief from Deportation 6-7

(1991); see also 68 Interpreter Releases 907, 908 (July

22, 1991).

With respect to setting time periods for motions to

reopen, Congress directed that, “[uJ]nless the Attorney

General finds reasonable evidence to the contrary, the

regulations should state that such motions be made

within 20 days of the date of the final determination in

the proceeding and that such motions be limited to one

motion to reopen and one motion to reconsider.” H.R.

Conf. Rep. No. 101-955, at 133 (1990), as reprinted in

1990 U.S.C.C.A.N. 6784, 6798. The Department of Jus-

tice initially proposed a 20-day time period for motions

to reopen, see 59 Fed. Reg. 29,386, 29,388 (June 7, 1994),

but ultimately decided on a final regulation with a 90-

day time period, see 61 Fed. Reg. 18,900, 18,905 (Apr.

29, 1996); see also id. 18,902. The Department ex-

plained that the limitation of one motion to reopen per

alien combined with the larger 90-day period struck the

proper balance, for it “reflect{ed] the congressional in-

tent to streamline the deportation process, while pro-

viding a reasonable opportunity for meritorious cases

to be heard.” 60 Fed. Reg. 24,573, 24,574 (May 9, 1995).

When codifying motions to reopen, Congress

adopted the 90-day time period. IIRIRA, § 304(a)(3),

110 Stat. at 3009-593 (codified at 8 U.S.C.

§ 1229a(c)(7)(C\(i)). An alien is now entitled by statute

to file one motion to reopen. 8 U.S.C. § 1229a(c)(7).’

. Similarly, in 1996, Congress also codified an alien’s right to

file one motion to reconsider a decision that the alien is removable.

IIRIRA, § 304(a)(3), 110 Stat. at 3009-593 (codified at 8 U.S.C.

§ 1229a(c)(6)(A)). That right too had previously existed by regula-

tion. See 23 Fed. Reg. at 9,118; 8 C.F.R. § 3.2 (1994) (motions to

reopen and for reconsideration).

The motion to reopen must state new facts that the

alien seeks to establish at a hearing and must be sup-

ported by evidentiary material. Jd. § 1229a(c)(7)(B); see

also 8 C.F.R. § 1003.2(c)(1). Approximately 10,000 mo-

tions to reopen are filed with the Board of Immigration

Appeals (BIA) each year. DOJ Executive Office for

Immigration Review, FY 2006 Statistical Year Book T2

(2007), available at http://www.usdoj.gov/eoir/statspub/

fy06syb.pdf (9,256 such motions filed in fiscal year

2006). Consistent with “long-standing” practice, a mo-

tion to reopen is generally assigned to the member(s) of

the Beard who decided the original appeal. 67 Fed.

Reg. 54,878, 54,887 (Aug. 26, 2002); see also 8 C.F.R.

§ 1003.1(e)(5). “This permits some familiarity with the

record and obviates the use of such a motion to merely

seek a second panel review of a decision.” 67 Fed. Reg.

at 54,887.

2. Voluntary Departure

Voluntary departure is a form of discretionary re-

lief available to a favored class of aliens. It permits an

alien who has satisfied a number of criteria to leave vol-

untarily, thereby granting certain benefits to the alien

(such as the ability to put his affairs in order) and sav-

ing the Government the resources and expenses associ-

ated with effectuating a forcible removal.

All categories of aliens facing removal, including

lawful permanent residents, are eligible to seek volun-

tary departure, but certain statutory and non-statutory

criteria must be met. For example, an alien who has

been convicted of an aggravated felony is barred from

receiving voluntary departure. See 8 U.S.C.

§ 1229e(a)(1), (b)(1)(C). Aliens being deported on ter-

rorism grounds are also ineligible for voluntary depar-

ture. See id.

Under the statutory scheme put in place in 1996, the

eligibility criteria depend on whether an alien seeks vol-

untary departure (1) in lieu of or before the conclusion of

removal proceedings, 8 U.S.C. § 1229e(a), or (2) at the

conclusion of removal proceedings, id. § 1229c(b).’ These

two categories differ in the availability of appeals, the

requirements that must be satisfied, and the number of

days available for voluntary departure.

Only aliens seeking voluntary departure during or

before the completion of proceedings need to waive

their appeals. This is required not by statute but by

regulation; such aliens must concede removability,

make no additional requests for relief, and waive appeal

of all issues. See 62 Fed. Reg. 10,312, 10,372 (Mar. 6,

1997); 8 C.F.R. § 1240.26(b)(1)(i)(B)-(D).

Aliens seeking voluntary departure at the conclu-

sion of proceedings are not required by statute or regu-

lation to waive appeals; for such aliens the receipt of a

grant of voluntary departure is not conditioned on the

waiver of a right to administrative and judicial review.

Thus, an alien seeking relief from an immigration

judge, such as asylum or adjustment of status,’ but who

* Before IIRIRA, the voluntary departure statutory provi-

sions did not differentiate between requests before and after the

completion of removal proceedings. See 8 U.S.C. §§ 1252(b),

1252(g), 1252b(e)(2), 1254(e) (1994).

* Aliens may seek various forms of relief from the immigra-

tion judge. For aliens who are not lawful permanent residents,

such relief includes: asylum, 8 U.S.C. § 1158; withholding of re-

moval, id. § 1231(b)(3); cancellation of removal, id. § 1229b(b); ad-

justment of status, id. § 1255; or temporary protected status, id.

§ 1254a. For legal permanent residents facing removal, possible

grounds for relief include: cancellation of removal, id. § 1229b(a),;

waiver of deportation, 8 U.S.C. § 1182(c) (1994) (repealed 1996), see

INS v. St. Cyr, 533 U.S. 289, 294-297 (2001); a record of lawful ad-

is denied that relief is not required to waive future ap-

peals in exchange for voluntary departure. The alien

can accept voluntary departure at the conclusion of pro-

ceedings and continue to press his administrative and

judicial appeals on the underlying relief.

These aliens, though they retain rights to appeal,

both must meet requirements not applicable to the

aliens seeking voluntary departure in lieu of or before

the completion of proceedings, and face shorter volun-

tary departure periods. Specifically, an alien seeking

voluntary departure after proceedings must prove, in-

ter alia, that he is and has been of “good moral charac-

ter” for the previous five years. 8 U.S.C.

§ 1229¢e(b)(1)(B). Aliens seeking voluntary departure

after the conclusion of proceedings may receive a pe-

riod of voiuntary departure up to 60 days, while those

seeking voluntary departure in lieu of or before the

conclusion of proceedings have up to 120 days. /d.

§ 1229¢e(a)(2)(A), (b)(2).

For both categories of voluntary departure recipi-

ents, an overstay of the voluntary departure period

gives rise to two penalties: a mandatory civil fine of

between $1,000 and $5,000, 8 U.S.C. § 1229e(d)(1)(A),

and ineligibility for a period of ten years from obtaining

another grant of voluntary departure, cancellation of

removal, adjustment of status, change of nonimmigrant

classification, or a record of lawful admission, id.

§ 1229¢e(d)(1)(B). The statute mandates that an order

permitting voluntary departure “shall inform the alien

of the penalties” of overstaying the applicable depar-

ture period. Jd. § 1229c(d)(3).

mission, 8 U.S.C. § 1259: waiver of inadmissibility, id. § 1182(h), (i);

or waiver of inadmissibility, id. § 1227(a)(1)(H).

3. The Intersection Of The Statutes And

Regulations

This case concerns the intersection of these provi-

sions governing motions to reopen and voluntary de-

parture. Specifically, the question is whether the vol-

untary departure period is tolled pending a motion to

reopen. This question has important ramifications be-

cause it affects the availability of motions to reopen for

this favored class of aliens.

If the voluntary departure period is tolled, the alien

can file a motion to reopen and await a ruling. If the

voluntary departure period is not tolled, however, the

alien is effectively denied a decision on a motion to re-

open. The alien cannot leave while he awaits a decision

on the motion, because if he departs then his motion to

reopen will be deemed withdrawn. 8 C.F.R. § 1003.2(d).

He also cannot forgo voluntary departure by accepting

a deportation order (as Petitioner unsuccessfully at-

tempted to do in this case). Pet. App. 3-4. His only op-

tion is to remain and hope that the immigration official

resolves his motion before the expiration of the volun-

tary departure period. But if the official does not re-

solve it within this timeframe, as occurs regularly, the

alien will not only likely be ineligible for reopening, but

will also face other penalties. See 8 USC.

§ 1229¢e(d)(1).

After the passage of IIRIRA, the Department of

Justice acknowledged the questions arising from the

interaction of these provisions and suggested three

possible constructions of the statute. Two of these pro-

posals would have permitted some form of tolling. 62

Fed. Reg. at 10,325-10,326 (suggesting the possibility

that the motion tolls any period during which the mo-

tion is pending, or the voluntary departure period runs

for a fixed period of time following disposition of any

such motion). The Department did not issue regula-

tions that address the tolling question.

Seven courts of appeals have since considered the

tolling question. Four circuits have adopted a tolling

rule, and three have rejected it. Compare Ugokwe v.

U.S. Attorney General, 453 F.3d 1325 (11th Cir. 2006);

Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005); Sidik-

houya v. Gonzales, 407 F.3d 950 (8th Cir. 2005); Azarte

v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005) with Chedad vy.

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

Gonzales, 459 F.3d 500 (4th Cir. 2006), petition for cert.

filed (U.S. Mar. 22, 2007) (No. 06-1285); Banda-Ortiz v.

Gonzales, 445 F.3d 387 (5th Cir. 2006), cert. denied, 127

S. Ct. 1874 (2007). In the three cases that held that toll-

ing does not apply, there were two dissenting opinions,

Chedad, 497 F.3d at 66 (Lipez, J., dissenting); Banda-

Ortiz, 445 F.3d at 391 (Smith, J., dissenting), and one

concurring opinion that would have narrowed the major-

ity’s decision, Dekoladenu, 459 F.3d at 508 (Gregory, J.,

concurring).

B. Factual Background

Petitioner Samson Taiwo Dada is a native and citi-

zen of Nigeria. Pet. App. 1, 7. In 1998, he entered the

United States legally on a nonimmigrant visa, which he

overstayed. Jd. 7. He subsequently married an Ameri-

can citizen, who filed a Petition for Alien Relative, Form

1-130, on Dada’s behalf, seeking to adjust his immigra-

tion status. /d. 8. Because former counsel had neglected

to provide all of the documentary evidence requested by

the Bureau of Citizenship and Immigration Services,

however, the I-130 petition was denied. Jd.

In 2004, the Government initiated removal proceed-

ings against Dada, charging him with having remained

in the United States for a time longer than permitted, in

violation of Section 237(a)(1)(B) of the INA. Pet. App. 7-

8. At his removal proceeding, Dada, through counsel,

requested a continuance so that a newly filed I-130 could

be adjudicated, and he sought voluntary departure in

the alternative. Jd. 7-9. The presiding immigration

judge denied Dada’s continuance request because she

could not “justify to [her] boss” keeping the case on her

docket while the I-130 petition was processed. C.A.

App. 164; see also Pet. App. 8. The judge exercised her

discretion to grant Dada voluntary departure, and

granted a 60-day voluntary departure period. Pet. App.

9; see also C.A. App. 166. The immigration judge asked

whether Petitioner “reserve|d] appeal,” and Petitioner’s

counsel confirmed that he did. C.A. App. 167 (“Q. And

you reserve appeal? A. Yes, Your Honor.”).

In November 2005, the BIA affirmed the immigra-

tion judge’s decision without opinion in a per curiam

order and reinstated the voluntary departure period for

30 days. Pet. App. 5-6.

Before the expiration of this 30-day period, and

within the time allowed to file, Dada filed in the BIA a

motion to reopen and to reconsider his removal pro-

ceedings. See Pet. App. 3. At the time Dada filed his

motion, the courts of appeals to have considered the

question had unanimously concluded that a timely-filed

motion to reopen tolls the period of voluntary depar-

ture. See Kanivets, 424 F.3d 330; Sidikhouya, 407 F.3d

950; Azarte, 394 F.3d 1278.

In addition, Dada sought to withdraw his request

for voluntary departure and accept an order of deporta-

tion (7.e., to waive the benefits of voluntary departure).

Pet. App. 3. He also asked the BIA to stay his removal

pending resolution of his motion to reopen. /d.

Approximately two months later, the BIA denied

Dada’s motion in a non-precedential one-member per

curiam order. Pet. App. 3-4. Without acknowledging

the tolling question or addressing the merits of Dada’s

arguments, the BIA rejected the motion on the ground

that Dada’s overstay of the voluntary departure period

rendered him ineligible by statute for adjustment of

status. /d. The Board did not address Dada’s request

to withdraw the grant of voluntary departure. /d.

Dada petitioned for review in the Fifth Circuit.

While his petition was pending, that court, in a divided

opinion, decided Banda-Ortiz, 445 F.3d 387, breaking

with its sister circuits and holding that a timely-filed

motion to reopen does not toll a period of voluntary de-

parture. In light of Banda-Ortiz, the Fifth Circuit de-

nied Dada’s petition. Pet. App. 1-2.

SUMMARY OF ARGUMENT

Basic principles of statutory interpretation require

the conclusion that a timely-filed motion to reopen un-

der 8 U.S.C. § 1229a(c)(7) tolls a voluntary departure

period granted under 8 U.S.C. § 1229¢. This Court’s

precedents instruct that the statute must be read as a

whole and construed so as not to eliminate an important

statutory right for a class of aliens. This is especially so

where, as here, the Government’s construction would

create a Hobson’s choice for aliens and lead to arbitrary

results.

Tolling is also consistent with the structure of the

1996 amendments and traditional tolling principles. In

particular, the amendments did not require the waiver

of administrative and judicial appeals as a condition of

voluntary departure. In addition, absent tolling, the

newly-codified right to seek reopening would be avail-

able to criminal aliens, but not to the favored subset of

aliens eligible for voluntary departure. Finally, in a re-

lated context, this Court has tolled statutory deadlines

pending consideration of a motion to reopen and should

do the same here. See Part I infra.

The constitutional avoidance canon provides an ad-

ditional reason to reject a no-tolling rule. In the ab-

sence of tolling, the ability to pursue a motion to reopen

will depend entirely on arbitrary government action

unrelated to the alien and out of his control. A subset

of voluntary departure recipients will have their mo-

tions to reopen decided on their merits, while many will

not, the result dependent entirely on how quickly a

given immigration official acts on the motion. The re-

sult is a system in which arbitrary government action

jeopardizes aliens’ protected interests under the Due

Process Clause and treats identically situated classes of

aliens differently absent any rationale. Such a regime

raises grave concerns under the Fifth Amendment.

Given the availability of a plausible, even preferable,

construction, the constitutional avoidance canon

strongly militates toward tolling. See Part II infra.

Finally, at a minimum, the Court should permit

tolling in this case. See Part III infra.

ARGUMENT

I. UNDER BASIC STATUTORY INTERPRETATION PRINCI-

PLES AND THIS COURT’S PRECEDENTS, A TIMELY Mo-

TION TO REOPEN TOLLS THE VOLUNTARY DEPARTURE

PERIOD

A. This Court’s Precedents Support A Construc-

tion That Preserves A Voluntary Departure

Recipient’s Right To A Motion To Reopen

Basic principles of statutory construction instruct

that the provisions governing voluntary departure and

motions to reopen must be read in harmony with each

other and in light of the statute as a whole. Congress

codified the right to file a motion to reopen for the

benefit of all aliens, including the favored subset

granted voluntary departure. Congress also provided

that permission to depart voluntarily is valid for a

specified time period. In considering the interaction of

the reopening provision with the voluntary departure

provision, this Court cannot read one provision in isola-

tion from the other.

Absent tolling, these two provisions create a trap

for a voluntary departure recipient facing changed cir-

cumstances who files a motion to reopen. If he leaves

the country in an attempt to comply with the voluntary

departure order, his motion to reopen will be deemed

withdrawn. If, on the other hand, he waits for the ad-

judication of his motion, he risks being penalized for

overstaying the voluntary departure period, and will be

in a worse situation than if he had never sought volun-

tary departure at all.

This Court’s precedents demonstrate that the stat-

ute should be construed to preserve this important

right to seek reopening for the class of aliens who are

granted voluntary departure. This is all the more clear

because voluntary departure recipients constitute a fa-

vored class of aliens, who, in many cases, must establish

“good moral character.” Additionally, this Court’s

precedents demonstrate that the statute should be con-

strued to avoid the Hobson’s choice and arbitrary re-

sults that would follow from the Government’s con-

struction.

1. Reading the statute as a whole requires

tolling here

In interpreting statutory provisions, this Court “fol-

low[s] the cardinal rule that a statute is to be read as a

whole.” King v. St. Vincent’s Hosp., 502 U.S. 215, 221

(1991) (explaining that “the meaning of statutory lan-

guage, plain or not, depends on context”); see also Shell

Oil Co. v. lowa Dep’t of Revenue, 488 U.S. 19, 25 (1988)

(noting that language should not be read “without refer-

ence to the statutory context”); United States v. Morton,

467 US. 822, 828 (1984) (this Court “read[s] statutes as a

whole”); United States v. Witkovich, 353 U.S. 194, 199

(1957) (declining to read immigration provision “in isola-

tion and literally” and instead looking to the “Act as a

whole”). In doing so, the Court has sought to “harmo-

nize” the various provisions of a statute. See Witkovich,

353 U.S. at 200; see also Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 879 (1994) (recognizing the

“familiar principle of statutory construction that, when

possible, courts should construe statutes ... to foster

harmony with other statutory and constitutional law”).

Without tolling, the voluntary departure provision

would effectively nullify the statutory right to a motion

to reopen for voluntary departure recipients.

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

considered a statutory interpretation question quite

similar to the one presented here, also involving the in-

teraction of immigration provisions. Reading the stat-

ute as a whole, the Court refused to adopt a construc-

tion that would have nullified an avenue of relief for an

entire class of aliens.

Costello involved a statutory provision, Section

241(a)(4) of the INA, which permitted the deportation

of “[aJny alien ... who ... at any time after entry is con-

victed of two crimes involving moral turpitude.” 376

U.S. at 121 (internal quotation marks omitted). The pe-

titioner, who had previously become a naturalized citi-

zen, was convicted of two separate offenses of tax eva-

sion and subsequently denaturalized. See id. The ques-

tion was whether the crimes committed while he was

naturalized counted for purposes of the provision. Jd.

First, the Court interpreted the deportation provi-

sion at issue. Two Justices and the court of appeals be-

lieved the plain language of the statute to be unambi-

guous, as Costello was an alien who committed the

crimes “at any time after entry.” 376 U.S. at 133

(White, J., dissenting) (“Th{e] description of the de-

portable alien [in the statutory provision] fits Costello

exactly and unambiguously.”); see also id. at 122 (quot-

ing court of appeals). The Court, however, disagreed

that the provision was unambiguous. /d. at 124-125.

The Court emphasized that the Government’s inter-

pretation would result in Costello’s being deported

without the opportunity to apply for relief under another

provision, which granted aliens the right to apply for a

judicial recommendation against deportation at the time

of conviction. 376 U.S. at 126-127. The Court stated that

this second provision, which authorized nothing more

than the opportunity to apply for discretionary relief,

was “an important part of the legislative scheme.” /d. at

127 (internal quotation marks omitted). Under the Gov-

ernment’s reading, the discretionary relief provision

would “become a dead letter” for certain aliens. /d. The

Court found “no evidence whatever” that this intersec-

tion “was even considered” by Congress. Jd. at 132. The

Court concluded: “We would hesitate long before adopt-

ing a construction [that] would, with respect to an entire

class of aliens, completely nullify a procedure so intrinsic

a part of the legislative scheme.” /d. at 127-128.

Second, the Court considered an alternative argu-

ment put forth by the Government—namely that,

based on a third statutory provision, denaturalization

should “relate back” to the date of the original naturali-

zation order. 376 U.S. at 128-129. While the plain lan-

guage of the relation-back provision arguably answered

the question, see id. at 139-140 (White, J., dissenting),

as it stated that denaturalization “shall be effective as

of the original date of the [naturalization] order,” id. at

129 n.14, the Court did not focus on this language in iso-

lation. Rather, the Court looked to whether there was

any indication that Congress intended the relation-back

provision to apply to the deportation provision at issue,

and found no such indication. Jd. at 129.

The Government’s construction, the Court noted,

“would put [the alien] in a much more disadvantageous

position than he would have occupied if he had never

acquired a naturalization certificate at all.” 376 U.S. at

131. Moreover, there was “not a single indication in the

copious legislative history” to suggest that Congress

intended the specific relation-back provision “to apply

to the genera! deportation provisions of the Act.” Jd. at

129. The Court concluded that, if Congress had wanted

such a result, “and thus to render nugatory and mean-

ingless for an entire class of aliens the protections of

(the discretionary relief provision], Congress could eas-

ily have said so.” Jd. at 132; see also id. (“(Tlhere is no

evidence whatever that the question was even consid-

ered.”).

This case presents a closely analogous issue. As in

Costello, the Government’s reading would, “with re-

spect to an entire class of aliens, completely nullify a

procedure so intrinsic a part of the legislative scheme.”

376 U.S. at 127-128; see also id. at 132 (rejecting con-

struction that would “render nugatory and meaningless

for an entire class of aliens” the discretionary relief at

issue). Motions to reopen are at least as important a

>The Court adopted this construction notwithstanding the

fact that Costello had obtained citizenship through “willful misrep-

resentation.” 376 U.S. at 121, 130-131. As a result, Costello was

likely better off because he had committed fraud because, under

the Court’s construction, the crimes Costello committed while a

citizen (even though his citizenship was fraudulently obtained) did

not count for purposes of the deportation provision. See 376 U.S.

at 130-131; id. at 135 (White, J., dissenting).

part of the legislative scheme as the discretionary relief

at issue in Costello: Motions to reopen have been a part

of deportation proceedings for over 90 years, and, in-

deed, Congress expressly codified the right in 1996.

Moreover, the “class of aliens” being deprived of relief

in Costello was, by definition, a class that had commit-

ted crimes. /d. at 121, 126-127. Here, the aliens being

deprived of relief are a favored subset who have not

committed certain crimes and who, in many instances,

must establish “good moral character” in order to be

eligible for relief. 8 U.S.C. § 1229e(a)(1), (b)(1)(B)-(C);

see also Part I.C infra.

There are four additional similarities. First, as in

Costello, 376 U.S. at 124-125, 129, the plain language of

the statutory provisions does not resolve the question

at issue, and the ambiguity is particularly apparent

. Although Congress set forth the length of the voluntary de-

parture period, it did not choose the same language and structure

of usual statutory time limits. Ordinarily, time limits state an af-

firmative obligation, directing an event to occur within a certain

time limit. Indeed, this is the case with the timing of motions to

reopen themselves, as well as other time limits in the INA affect-

ing official action. See 8 U.S.C. § 1229a(e(7 Ci) (“the motion to

reopen shall be filed within 90 days of the date of entry of a final

administrative order of removal”); id. § 1229a(c)(6)(B) (“The mo-

tion [to reconsider} must be filed within 30 days of the date of en-

try of a final administrative order of removal.”); id. § 1226a(a)(5)

(“The Attorney General shall place an alien detained under para-

graph (1) in removal proceedings, or shall charge the alien with a

criminal offense, not later than 7 days after the commencement of

such detention.”). The provisions at issue here, however, do not

state any affirmative obligation. Instead of directing the alien’s

actions, they passively describe a “period” during which “permis-

sion to depart” remains “valid.” Jd. § 1229e(a)(2)(A), (b)(2)

(“(PJermission to depart voluntarily under this subsection shall not

be valid for a period exceeding [120 or 60] days.”). Given that Con-

gress imposed such express time limits on multiple other occasions

when the interaction of the relevant provisions is con-

sidered.’ Indeed, the agency itself has acknowledged

that the plain language does not resolve whether tolling

applies. In a 1997 interim rule, the Department of Jus-

tice noted the question presented by the interaction of

the two provisions, and proposed three possible ways to

address the issue, two of which involved some form of

tolling. 62 Fed. Reg. at 10,325-10,326.

Similarly, the agency has recognized that the statu-

tory language permits tolling in the related context of

in the INA itself, this language is open to a less strict construction.

Moreover, the question in this case does not fit comfortably within

a plain language analysis; even if one considered the language to

be clear, it would not necessarily preclude tolling. Tolling, by its

very nature, becomes relevant because of seemingly inflexible

time limits and thus arises in the context of language that, on its

face, would appear to preclude it. See Part I.D infra (describing

widespread application of tolling to strict statutory time limits).

, Regardless of any apparent clarity of the voluntary depar-

ture provision in isolation, consideration of the provision in the

context of the statute and the 1996 amendments as a whole creates

ambiguity. In Costello, the Court found ambiguity in the fact that

the relation-back provision, though arguably clear on its face, did

not specify how it would apply to the deportation provision at is-

sue. 376 U.S. at 129. Likewise here, there is no indication how the

voluntary departure provision should apply to the motion to re-

open provision. See also Witkovich, 353 U.S. at 199-200 (refusing

to read clause literally to confer upon the Attorney General unbri-

dled discretion to require information from certain deportable

aliens, and instead finding limitations on that discretion based on a

reading of the clause in the context of the statute as a whole); ac-

cord Shiver v. United States, 159 U.S. 491, 494, 497 (1895) (reject-

ing a literal interpretation of a statute making it a crime to cut

timber on “lands of the United States” because a second statute

granting settlers “the privilege of residing on the land for five

years” in order to perfect a homestead “would be ineffectual if [the

settler] had not also the right to build himself a house, out-

buildings, and fences, and to clear the land for cultivation”).

administrative appeals. An administrative appeal “tolls

the running of the time authurized by the Immigration

Judge for voluntary departure.” Matter of A-M-, 23 1.

& N. Dec. 737, 743 (BIA 2005). In 2005, the BIA reex-

amined its longstanding practice of permitting such

tolling” in light of Congress’s addition of time periods to

the voluntary departure scheme: The BIA concluded

that “recent statutory and regulatory changes have not

altered the basic [tolling] principle.” /d.

Second, as in Costello, there is no indication that

Congress even considered the tolling question at issue

here.’ As this Court has noted, such an absence is note-

worthy in light of the “comprehensive character” of

IIRIRA’s legislative history. See INS v. St. Cyr, 533

U.S. 289, 320 n.44 (2001) (noting the significance of the

fact that “despite [the legislative history’s] comprehen-

sive character, it contains no evidence that Congress

specifically considered the question” at issue (citing

Harrison v. PPG Indus., Inc., 446 U.S. 578, 602 (1980)

(Rehnquist, J., dissenting) (“In a case where the con-

struction of legislative language such as this makes so

sweeping and so relatively unorthodox a change as that

made here, I think judges as well as detectives may take

into consideration the fact that a watchdog did not bark

in the night.”))); see also Costello, 376 U.S. at 129 (“not a

* See Matter of Chouliaris, 16 1. & N. Dec. 168, 170 (BIA 1977);

Matter of Villegas Aguirre, 13 1. & N. Dec. 139, 140 (BIA 1969).

* For example, there is no mention of the interaction between

voluntary departure and motions to reopen in the congressional

reports on IIRIRA. See H.R. Conf. Rep. No. 104-828 (1996); H.R.

Rep. No. 104-469, pt. 1 (1996); S. Rep. No. 104-249 (1996).

single indication in the copious legislative history” to

suggest that Congress intended a particular result).'°

Third, as in Costello, the Government’s reading

would “put (the alien] in a much more disadvantageous

position than he would have occupied if he had never

acquired [voluntary departure] at all.” 376 U.S. at 131.

In Costello, the Court focused on the fact that if

Costello had been convicted of the crime while he was

an alien (as opposed to when he was a citizen), he would

have been able to apply for a type of discretionary re-

lief. The Court rejected an interpretation that would

have resulted in Costello’s effectively losing this relief.

Id. at 130-131. A similar disadvantage arises here. Ab-

sent tolling, a recipient of voluntary departure is placed

in a much worse situation if his circumstances change

and he seeks reopening. As the facts of this case dem-

onstrate, the alien cannot withdraw his voluntary de-

parture request, Pet. App. 3-4, and is then subject to

additional penalties because he accepted voluntary de-

parture, 8 U.S.C. § 1229¢(d)(1).

Finally, this Court should resolve any remaining

ambiguity in favor of Petitioner. 376 U.S. at 128. As in

Costello, even if the matter were still in doubt, the

Court would “nonetheless be constrained by accepted

principles of statutory construction in this area of the

10 : ,

Congress's lack of consideration makes sense in the circum-

stances. Pre-IIRIRA, the harsh results of a no-tolling rule did not

come to light. Before 1996, there were no limits on the time period

for voluntary departure, see generally 8 U.S.C. § 1254(e) (1994)

(repealed 1996); therefore, even without a tolling rule, aliens

granted voluntary departure were not effectively deprived of the

right to seek reopening (which at that time was only a creature of

regulation). Cf. Matter of Shaar, 21 1. & N. Dec. 541, 546-548 (BIA

1996) (pre-IIRIRA decision concluding that motion to reopen did

not toll voluntary departure period).

law to resolve that doubt in favor of the petitioner”:

““Slince the stakes are considerable for the individual,

we will not assume that Congress meant to trench on

his freedom beyond that which is required by the nar-

rowest of several possible meanings of the words

used.” Jd. (quoting Fong Haw Tan v. Phelan, 333 U.S.

6, 10 (1948)); see also St. Cyr, 533 U.S. at 320 (invoking

the “longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the

alien” (internal quotation marks omitted)).

2. This Court should not presume that Con-

gress created a Hobson’s choice or an ar-

bitrary system

Under this Court’s precedents, this Court should

not presume that Congress created a Hobson’s choice

for aliens. A tolling rule ensures that voluntary depar-

ture recipients receive a decision on the merits of their

motions to reopen. Under a no-tolling rule, however,

an alien who files a timely motion to reopen during the

voluntary departure period must either stay in the

country awaiting a ruling on his motion to reopen and

risking penalties for overstaying the deadline, or abide

by the departure deadline, and forgo a decision on the

motion. See 8 C.F.R. § 1003.2(d).""

In Stone v. INS, 514 U.S. 386 (1995), the Court

adopted a construction that would avoid such a

Hobson’s choice. I/d. at 398; see also id. at 399 (“This

'' This regulation has been the subject of litigation, though has

been upheld in the Fifth Circuit. Compare, e.g., Navarro-Miranda

v. Ashcroft, 330 F.3d 672, 675-676 (5th Cir. 2003) (holding that regu-

lation (previously designated at 8 C.F.R. § 3.2(d)) is enforceable),

with William v. Gonzales, 499 F 3d 329, 334 (4th Cir. 2007) (holding

that regulation is invalid) and Reynoso-Cisneros v. Gonzales, 491

F.3d 1001, 1002 (9th Cir. 2007) (limiting scope of regulation).

choice is one Congress might not have wished to impose

on the alien.”). The choice there was all the more diffi-

cult because “the consequences of deportation are so

final, unlike orders in some other administrative con-

texts.” Jd. at 399. Here, as in Stone, this Court should

not presume that Congress wanted aliens to face an un-

tenable choice."

This Court should also not presume that Congress

intended to create an arbitrary system. The Govern-

ment’s interpretation would ascribe to Congress the

intent to deprive a subset of voluntary departure re-

cipients of the ability to benefit from a motion to reopen

based on arbitrary government action or inaction. The

statutory scheme, on its face, does not make it impossi-

ble for an alien to receive voluntary departure and also

receive a decision on his motion to reopen. The sole de-

terminant whether a voluntary departure recipient’s

motion to reopen will—or will not—be considered is

how quickly the BIA happens to act. If the BIA acts

quickly, then the motion will be considered; if not, it

will not.

In fact, this is precisely what happens in practice.

Some motions to reopen are decided quickly, in as few

as 23 days.'’ However, notwithstanding the “dra-

'2 Stone is discussed in more detail at n.26 i nfra.

'? See Matter of Bastos Borges, 2007 WL 1192549 (BIA Mar.

30, 2007) (motion to reopen denied in 23 days); see also, e.g., Matter

of Estrada-Campos, 2007 WL 2463956 (BIA Aug. 3, 2007) (motion

to reopen granted in 35 days); Matter of Guerrero, 2007 WL

2299599 (BIA July 23, 2007) (motion to reopen denied in 31 days);

Matter of Mendivila, 2007 WL 2074492 (BIA June 11, 2007) (motion

to reopen denied in 28 days); Matter of Raja, 2007 WL 1168550

(BIA Mar. 2, 2007) (motion to reopen granted in 25 days); Matter of

Madramuthu, 2007 WI. 1129362 (BIA Feb. 13, 2007) (motion to

reopen granted in 26 days).

matic[]” “increase|| [in] disposition rate[s],” 67 Fed.

Reg. at 54,899, many decisions on motions to reopen

take longer.'* And it is arbitrary government action

alone that determines whether a particular voluntary

departure recipient will fall within class A (such that he

could have his motion to reopen adjudicated absent toll-

ing) or class B (and be denied this right).

This Court should not presume that Congress in-

tended this result. See Unitea States v. Wilson, 503

U.S. 329, 334 (1992) (rejecting an “interpretation of the

statute [that] would make the award of credit [for time

served] arbitrary, a result not to be presumed lightly”);

see also Delgadillo v. Carmichael, 332 U.S. 388, 391

(1947) (avoiding a construction that would make an

alien’s ability to remain in the United States turn on

“fortuitous and capricious” circumstances).

bead * *

Thus, the Government’s reading would effectively

render an important statutory provision meaningless

for an entire class of aliens. Under Costello, this inter-

pretation should be rejected. In addition, a no-tolling

rule woulda force aliens into a Hobson’s choice and sub-

ject the viability of their claims to the arbitrary speed

of agency decision-making: Congress should not be

presumed to have intended either result.'°

4 See, e.g., Matter of Arriazola-Hernandez, 2007 WL 2463984

(BIA July 31, 2007) (motion to reopen granted in just over four

months); Matter of Barragan-Toro, 2007 WL. 2074428 (BIA June

14, 2007) (motion to reopen granted in over six months).

'S There can be no argument that Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

applies. The Government has conceded that the Department of

Justice has not yet taken an official position on the tolling question

presented. Opp. 14-15 & n.5. As the Government has noted, the

B. The Statutory Structure Does Not Require

Voluntary Departure Recipients To Explicitly

Or Implicitly Waive Their Motions To Reopen

Or Other Administrative Appeals

The courts of appeals have suggested that voluntary

departure is a form of settlement: the alien, in return for

the right to manage his own departure, waives certain

rights, including a motion to reopen. But that is not

what the statute says. And there is no indication that

Congress intended that a voluntary departure recipient

be required to waive a motion to reopen as part of a quid

pro quo for a grant of voluntary departure.

Congress could, of course, have crafted a scheme

under which a voluntary departure recipient would be

required to waive all appeals—administrative and judi-

cial—in exchange for a grant of voluntary departure.

Department considered issuing regulations to address this ques-

tion in 1997, but failed to do so. Jd. n.5; see also 62 Fed. Reg. at

10,325-10,326. Nor has there been a precedential BIA decision on

the issue following IIRIRA’s amendments; and single-member,

non-precedential orders of the BIA are not entitled to deference.

See 8 C.F.R. 1003.1(e)(6)(ii); see also, e.g., Rotimi v. Gonzales, 473

F.3d 55, 57 (2d Cir. 2007) (per curiam) (“Because there is no indica-

tion that the BIA’s nonprecedential single-member decision was

‘promulgated’ under its authority to ‘make rules carrying the force

of law,’ we do not accord it Chevron deference” (quoting United

States v. Mead Corp., 533 U.S. 218, 226-227 (2001)). Thus, even

assuming arguendo that Chevron would apply in this context,

there is no relevant decision to defer to under Chevron.

While the Government has indicated that a regulation relat-

ing to the “reinstatement” of voluntary departure, 8 C.F.R.

§ 1240.26(h), speaks to the tolling question, Opp. 13-14, the De-

partment of Justice plainly does not view the regulation as control-

ling. Indeed, the reinstatement provision was promulgated in 1997

as part of the same interim rule in which the Department posed

the question whether a motion to reopen should toll the voluntary

departure period. 62 Fed. Reg. at 10,325-10,326, 10,373.

But it did not. By its plain terms, the statute does not

require any such waiver. See Custellu, 376 U.S. at 132 (if

Congress had wanted to waive statutory protections, it

“could easily have said so”). By contrast, other provi-

sions of the INA expressly require an alien to waive ap-

peals. See, e.g.,8 U.S.C. § 1187(b) (requiring “{w]aiver of

rights” to appeal for aliens in visa waiver program);'° see

also St. Cyr, 533 U.S. at 318-319 (declining to infer con-

gressional intent to apply a provision of IIRIRA retro-

actively where Congress was “willing|], in other sec-

tions of IIRIRA, to indicate unambiguously its inten-

tion to apply specific provisions retroactively”).

The courts of appeals that have rejected tolling

have misunderstood this critical fact: all three courts

have erroneously suggested that an alien who accepts

voluntary departure must waive certain rights.'’ While

this is true as a matter of regulation for aliens who ac-

cept voluntary departure before the conclusion of pro-

ceedings, 8 C.F.R. § 1240.26(b)(1)(i)(D), it is false with

“stipulated removal.” 8 U.S.C. § 1229a(d) (added by IIRIRA,

§ 304(a)(3), 110 Stat. at 3009-593). Under this mechanism, such “{a]

stipulated order shall constitute a conclusive determination of the

alien’s removability from the United States.” /d.; see also 8 C.F.R.

§ 1003.25(b)(6). Tellingly, the voluntary departure provision does

not refer to stipulated removal.

"7 See Chedad, 497 F.3d at 63 (stating that “voluntary depar-

ture {is} available only to aliens who agree to give up the fight and

leave the country willingly”); Banda-Ortiz, 445 F.3d at 390 (sug-

gesting that voluntary departure precludes an alien from “the

chance of winning outright” (internal quotation marks omitted));

Dekoladenu, 459 F.3d at 506 (“A motion to reopen remains avail-

able to all aliens, but an alien who requests voluntary departure

will forfeit his right to a decision on his motion to reopen if the IJ

grants his request.”); id. at 504 n.3 (“two types of voluntary depar-

ture implicate the same principles”).

respect to aliens, such as Petitioner, who agree to vol-

untary departure at the conclusion of proceedings. See

id. § 1240.26(c).'* In the present case, for example, the

immigration judge expressly asked whether Petitioner

“reserve[d] appeal,” and Petitioner’s counsel confirmed

that he did. C.A. App. 167.

Thus, under the statute and regulations, an alien

granted voluntary departure at the end of proceedings:

(1) is not required to waive administrative and judicial

appeals; (2) has the right to file an appeal to the BIA

(during which the voluntary departure period is tolled);

and (3) has the right to judicial review of his final order

of removal. Under the Government’s view, then, the

only right that the voluntary departure recipient waives

by accepting voluntary departure is the right to a single

motion to reopen—notwithstanding the fact that Con-

gress codified the motion to reopen in 1996, and there is

no indication whatsoever that Congress considered the

issue. Congress could have required the waiver of a mo-

tion to reopen as a condition of voluntary departure,

“but it makes no sense to suggest Congress did it under

its breath.” Cook County, Ill. v. United States, 538 U.S.

119, 133 (2003); see also, eg., Winkelman ex rel.

'“ The Board has noted that the purpose of voluntary depar-

ture in lieu of or before the conclusion of proceedings is “to quickly

and efficiently dispose of numerous cases|.]” Matter of Arguelles-

Campos, 22 I. & N. Dec. 811, 817 (BIA 1999); see also 62 Fed. Reg.

at 10,325 (the agency “believes that voluntary departure author-

ized by immigration judges prior to completion of proceedings

should be for the purpose of settling cases in the interests of econ-

omy and justice” (emphasis added)). The agency has not set forth

the same rationale with respect to voluntary departure at the con-

clusion of proceedings. See Arguelles-Campos, 22 1. & N. Dec. at

817 (noting the “significant differences” between these two types

of voluntary departure).

Winkelman v. Parma City Sch. Dist., 127 S. Ct. 1994,

2002 (2007) (“(T]he Act does not sub silentio or by impli-

cation bar parents from seeking to vindicate the rights

accorded to them once the time comes to file a civil ac-

tion.”); Bates v. Dow Agrosciences LLC, 544 U.S. 431,

449 (2005) (“If Congress had intended to deprive injured

parties of a long available form of compensation, it

surely would have expressed that intent more clearly.”).

Moreover, in light of settled agency decisions in a re-

lated context, there is no reason to think that Congress

would have required an implicit waiver of a motion to

reopen as a condition of voluntary departure. It is well

settled, for example, that for an alien to waive adminis-

trative appeals, the waiver must be a knowing one. Mat-

ter of Patino, 23 I. & N. Dec. 74, 76 (BIA 2001) (because

of the “profound ramifications” of “relinquish[ing] the

parties’ opportunity to seek review of the Immigration

Judge’s ruling,” any waiver must be “knowingly and in-

telligently made”), Matter of Ocampo-Ugalde, 22 1. & N.

Dec. 1301, 1304 (BIA 2000) (holding that for those aliens

who waive appeal rights by accepting voluntary depar-

ture (i.e., those who accept voluntary departure before

the conclusion of proceedings), the waiver must be a

knowing one); see also United States v. Mendoza-Lopez,

481 U.S. 828, 840 (1987) (where immigration judge

“permitted waivers of the right to appeal that were not

the result of considered judgments” by the aliens, result-

ing in “waivers of their rights to appeal [that] were not

considered or intelligent,” Government may not rely on

deportation order “as reliable proof of an element of a

criminal offense”).

The notion that Congress intended an implicit

waiver is further undercut by the fact that Congress

has required that voluntary departure recipients be

given adequate notice of the penalties of overstaying a

departure period. See 8 U.S.C. § 1229¢e(d)(3). Given

Congress’s concern that aliens receive notice of the im-

plications of voluntary departure, there is no reason to

think that Congress intended to deprive aliens of this

right without notice (or at all).'*

Finally, it makes little sense to imagine that Con-

gress intended to condition voluntary departure on an

implicit waiver of the right to a motion to reopen, in

light of the fact that some voluntary departure recipi-

ents will still be able to obtain adjudication of their mo-

tions. As discussed above, some voluntary departure

recipients will have their motions to reopen considered,

as in some cases the agency will act promptly and de-

cide the motion within the voluntary departure period.

See Part 1.A.2 supra. Thus, for an implicit waiver of a

motion to reopen, Congress would need to have in-

tended waiver not by all voluntary departure recipi-

ents, but only by the subset whose motions would not

be adjudicated during the voluntary departure period.

'? It is also incongruous to think that Congress intended vol-

untary departure recipients to forfeit their motions to reopen in

light of its deliberate actions to preserve an alien’s avenue to relief

in the related context of judicial review. Specifically, before the

1996 amendments, the INA provided that no court had the author-

ity to consider a petition for review if the alien left the country.

See 8 U.S.C. § 1105a(c) (1994) (“An order of deportation or of ex-

clusion shall not be reviewed by any court if the alien ... has de-

parted from the United States after the issuance of the order.”).

The 1996 amendments made it easier for the agency to deport

aliens pending judicial review, see 8 U.S.C. § 1252(b)(3)(B), (f)(2),

but, importan‘ly, repealed the provision that prevented an alien

from petitioning for review from abroad, see 8 U.S.C. § 1105a(c)

(1994), repealed by ITRIRA, § 306(b), 110 Stat. at 3009-612. Con-

gress therefore ensured that aliens are able to receive a decision

on the merits of their petitions for review from outside the coun-

try.

And, of course, the determination of which category a

given alien would fall into would be based entirely on

the arbitrary actions of the agency.”

C. The 1996 Amendments Indicate That Con-

gress Did Not Intend To Privilege Criminal

Aliens Over The Favored Class Of Aliens Eli-

gible For Voluntary Departure

The Government’s construction of the relevant

statutory provisions should also be rejected because it

turns congressional intent on its head, as it benefits

criminal aliens over the favored aliens who are eligible

for voluntary departure.

When Congress passed IIRIRA in 1996, one of its

primary concerns was to enact reform with respect to

aliens who had committed crimes. As this Court has

stated, Congress acted against a “backdrop of wholesale

failure by the INS to deal with increasing rates of crimi-

nal activity by aliens.” Demore v. Kim, 538 U.S. 510, 518

(2003). In the months leading up to the passage of

*° The courts of appeals that have rejected tolling have made

another error. Specifically, these courts have stated that one of

the “main attractions” of voluntary departure is that aliens

granted this relief do not face the same bars on readmission as

aliens subject to a removal order. Chedad, 497 F.3d at 63 n.8;

Banda-Ortiz, 445 F.3d at 389-390; Dekoladenu, 459 F.3d at 506.

While it is true that voluntary departure recipients do not face the

admissibility bar in 8 U.S.C. § 1182(a)(9)(A) (which renders an

alien who has been ordered removed inadmissible for five or ten

years), there is a distinct ten-year bar for aliens who are unlaw-

fully present in the United States for more than one year; this bar

is triggered by an alien’s departure, see id. § 1182(a(9)(B)i 1D.

As a result, a large number of aliens granted voluntary departure

face the same bars on admissibility upon leaving voluntarily as

under a removal order.

IIRIRA, Congress devoted extensive study to the prob-

lems posed by criminal aliens.*'

Motivated by these concerns, Congress enacted nu-

merous provisions stiffening the penalties for criminal

aliens and restricting eligibility for relief. In IIRIRA,

Congress both expanded the definition of those crimes

for which aliens are deportable and made this definition

retroactively applicable. See IIRIRA, § 321, 110 Stat. at

3009-627 (codified at 8 U.S.C. § 1101(a)(43)). Congress

also provided for mandatory detention of criminal aliens.

Id. § 305, 110 Stat. at 3009-598 (codified at 8 U.S.C.

§ 1226(c)). At the same time, Congress made criminal

aliens ineligible for certain relief. Jd. § 304, 110 Stat. at

3009-595 (codified at 8 U.S.C. § 1229b(a), (b)).

By contrast, voluntary departure is only available

to a favored subset of aliens. Aliens who have commit-

ted aggravated felonies or terrorism offenses, for ex-

ample, are barred by statute from receiving voluntary

departure. 8 U.S.C. § 1229ce(a)(1), (b)(1)(C). And, for

those who obtain voluntary departure at the conclusion

of removal proceedings (such as Petitioner), the statute

requires that the alien demonstrate “good moral char-

acter” for the preceding five years. Jd. § 1229c(b)(1)(B).

In addition, because voluntary departure is a form

of discretionary relief, it is limited to an even more fa-

vored subset of aliens. The BIA has held that, in exer-

cising discretion, immigration judges must balance a

I See S. Rep. No. 104-48, at 1 (1995) (“America’s immigration

system is in disarray and criminal aliens ... constitute a particu-

larly vexing part of the problem.”); H.R. Rep. No. 104-22, at 6

(1995) (“The increasing public attention paid to our nation’s immi-

gration policies has brought to light the high number of aliens,

both legal and illegal, who commit crimes while enjoying the bene-

fits of this country.”).

range of positive and negative factors, including

whether the alien has any criminal record, has commit-

ted additional violations of immigration law, or has

strong family cies to the United States. Matter of Ar-

guelles-Campos, 22 |. & N. Dec. 811, 817 (BIA 1999).

Under the Government’s reading of the statute,

however, criminal aliens are privileged over voluntary

departure recipients. Under the current regulatory

framework, criminal aliens have a right to file a motion

to reopen and, in many cases, will have those motions

adjudicated. While such motions are deemed withdrawn

once the alien is deported, 8 C.F.R. § 1003.2(d), criminal

aliens may seek an administrative stay of their removal

orders while their motions to reopen are pending. See

id. §§ 1003.2(f), 241.6." Moreover, it often takes time for

the immigration authorities to enforce a removal order

(and sometimes such orders are simply unenforced),

which permits time for motions to be adjudicated.” By

contrast, under a no-tolling rule, the favored subset of

aliens who receive voluntary departure are effectively

precluded from receiving an adjudication on their mo-

tions to reopen. Because the Government’s construction

is inconsistent with the statutory framework, it should

be rejected. See, e.g., Gonzaga Univ. v. Doe, 536 US.

273, 290 (2002) (construing statute in light of other en-

actments by same Congress); New York State Confer-

>? On their face, these regulations do not appear to apply to

the grant of voluntary departure. See pp. 36-37 infra (discussing

difference between a grant of voluntary departure and a final or-

der of removal).

"3 See, e.g.. DHS, Performance Budget Overview 8 (FY 2007),

available at http://www.dhs.gov/xlibrary/assets/Budget_PBO_FY

2007.pdf.

ence of Blue Cross & Blue Shield Plans v. Travelers Ins.

Co., 514 U.S. 645, 667 (1995) (same).

The Government’s construction is particularly un-

tenable in light of the fact that, when considering

IIRIRA, Congress was especially concerned about

criminal aliens abusing motions to reopen. Congress

determined that criminal aliens often succeeded in “de-

lay[ing] their deportations for years by taking advan-

tage of an often-times irrational, lengthy and complex

system of hearings and appeals.” S. Rep. No. 104-48, at

2 (1995); see also Criminal Aliens in the United States:

Hearings Before the Permanent Subcomm. on Investi-

gations of the S. Comm. on Governmental Affairs, 103d

Cong. 67 (1993) (Judge Fong Testimony). While, in

the end, Congress did not bar criminal aliens from seek-

ing motions to reopen, it would be odd, to say the least,

to interpret the statute to permit criminal aliens to file

motions to reopen, but effectively bar those with good

moral character from doing the same.

This Court has not hesitated to reject an interpre-

tation that creates such “anomalies.” In Small v.

United States, 544 U.S. 385 (2005), for example, the

Court considered whether the phrase “convicted in any

court” included a conviction in a foreign court. While

there was a fair argument that the plain language an-

swered the question in the affirmative, see id. at 396-

397 (Thomas, J., dissenting), the Court rejected that

view. The Court considered the “anomalies” that would

** Senator Spencer Abraham also raised this special concern,

and suggested eliminating motions to reopen for criminal aliens.

See 142 Cong. Rec. S4592, S4599 (May 2, 1996) (objecting to the

fact that “criminal aliens will still be able to ... make a motion to

reopen on the basis of changed circumstances ... [c}riminal aliens

should be allowed only one bite at the apple”).

arise if the statute were read to include foreign convic-

tions, which would create “senseless distinction{s]” be-

tween covered domestic crimes and uncovered foreign

crimes. /d. at 391-392. Such an interpretation was dis-

favored where there was no evidence that Congress

considered the question. /d. at 390-391. Indeed, the

Court rejected an interpretation that would lead to

anomalous results notwithstanding the fact that it could

be understood to advance the statute’s purpose. /d. at

393;°° see also, eg., Nixon v. Missouri Municipal

League, 541 U.S. 125, 137, 138 (2004) (coneluding that in

light of a “host of ... incongruities that would follow,” it

was “farfetched” to think Congress meant a particular

result in the absence of a “clearer signal”). In the pre-

sent case, tolling would avoid the perverse results that

would otherwise follow from the Government’s inter-

pretation.

> "The Court’s analysis in Small was based in part on the

background rule that Congress generally intends its laws to have

domestic, rather than extraterritorial, application. Yet, as the

Court acknowledged, that background rule was not directly appli-

cable. 544 U.S. at 389 (“[A]lthough the presumption against extra-

territorial application does not apply directly to this case, we be-

lieve a similar assumption is appropriate” in construing the term

at issue); cf. id. at 399 (Thomas, J., dissenting) (criticizing the ma-

jority for relying on an “entirely different, and well-recognized,

canon against extraterritorial application of federal statutes,”

which the “majority rightly concedes ... does not apply directly to

this case” (internal quotation marks omitted)). Even more power-

fully, then, the “longstanding principle” of construing any lingering

ambiguities in favor of the alien, St. Cyr, 533 U.S. at 320, supports

a reading of the relevant provisions governing motions to reopen

and voluntary departure that recognizes tolling.

D. In Other Contexts, This Court Has Concluded

That A Motion To Reopen Or Reconsider

Tolls An Otherwise Applicable Statutory

Time Period

A holding that the voluntary departure period is

tolled during the pendency of a timely motion to reopen

also finds support in this Court’s precedents addressing

motions to reopen and to reconsider in a number of dif-

ferent but related contexts.

For over a century and a half, it has been the “tra-

ditional and virtually unquestioned practice” of this

Court to find that a motion to reopen or to reconsider a

tribunal’s own decision automatically tolls the deadline

for seeking further review elsewhere. United States v.

Healy, 376 U.S. 75, 79 (1964). As early as 1844, in an

opinion by Justice Story, this Court held that a motion

to reopen a judgment of the court of appeals tolled the

time for filing a further appeal. Brockett v. Brockett, 43

US. (2 How.) 238, 241 (1844). This tolling rule has been

broadly applied to motions to reopen or reconsider (as

well as motions for a new trial) in both civil and crimi-

nal cases, and before agencies, trial courts, and appel-

late courts. See, e.g., United States v. Ibarra, 502 U.S.

1, 6-8 (1991) (per curiam); Missouri v. Jenkins, 495 U.S.

33, 45 (1990); ICC v. Brotherhood of Locomotive Eng’rs,

482 U.S. 270, 284 (1987); United States v. Dieter, 429

U.S. 6, 7-9 (1976) (per curiam); Morse v. United States,

270 U.S. 151, 153-154 (1926); see also Stone, 514 U.S. at

404 (referring to the “normal” tolling rule).”°

°° The Government's suggestion (Opp. 11) that Stone controls

here is misguided. In Stone, this Court held that Congress had

crafted a limited exception to this general rule. 514 U.S. at 393,

397-398. As an initial matter, the Court recognized the general

rule, i.e., that motions to reopen or reconsider ordinarily render a

This Court has repeatedly permitted tolling not-

withstanding strict statutory language that would seem

to prohibit such a result. In /barra, for example, this

Court held that a motion for reconsideration of a trial

court’s decision tolled the period for judicial review, de-

spite the language in 18 U.S.C. § 3731, which provided

that, “[a]n appeal by the United States [of a trial court’s

order suppressing or excluding evidence] ... shall be

taken within thirty days after the decision, judgment or

order has been rendered and shall be diligently prose-

cuted.” 502 U.S. at 3 n.1, 7 (emphasis added).*’ Like-

wise, in Morse, this Court stated that a timely motion

for a new trial from a judgment of the Court of Claims

tolled the time for appeal, notwithstanding statutory

language directing that, “All appeals from the Court of

Claims shall be taken within ninety days after the

judgment is rendered[.]” 270 U.S. at 153."

final order nonfinal and toll the period for judicial review. Jd. at

391-392 (discussing Locomotive Eng’rs). The Court focused on one

statutory provision in particular, which provided for the consolida-

tion of two kinds of petitions for judicial review (petitions for re-

view of a deportation order and petitions for review of an agency

reopening or reconsideration decision). Jd. at 393-398; see also 8

U.S.C. § 1105a(aX(6) (1994) (repealed 1996) (current version at 8

U.S.C. § 1252(b)(6)). Because only a no-tolling rule would give rise

to two separate petitions for review, the Court considered this

consolidation provision as an “explicit exception” to the tolling rule

in this “particular context.” 514 U.S. at 397, 398.

7 1In Ibarra, the Court applied the tolling rule notwithstand-

ing the fact that the motion for reconsideration was based on pre-

viously abandoned grounds: “{wJithout a ciear general rule liti-

gants would be required to guess at their peril.” 502 U.S. at 7.

** Indeed, this Court has explicitly acknowledged that there

is no statutory authority for a tolling rule. See, e.g., Dieter, 429

U.S. at 8 n.3 (applying tolling notwithstanding “the lack of a stat-

ute or rule expressly authorizing |such tolling]”).

In fact, this Court’s own rules permit tolling not-

withstanding a strict statutory deadline. The time pe-

riod for filing a petition for certiorari is governed by

statute, 28 U.S.C. § 2101(¢), which provides that a writ

of certiorari “shall be taken or applied for within ninety

days after the entry of [the] judgment or decree.” See

also S. Ct. R. 13.1. This deadline is generally consid-

ered to be a jurisdictional one. /d. 13.2; see also Bowles

v. Russell, 127 S. Ct. 2360, 2365 (2007) (certiorari dead-

line is jurisdictional); Jenkins, 495 U.S. at 45 & n.13.

Notwithstanding the text of Section 2101(c), this

Court’s rules provide that a petition for rehearing in a

court of appeals tolls the time for seeking review. See

S. Ct. R. 13.3.

This precedent highlights that, in this different but

related context, a motion to reopen or to reconsider can

operate to suspend a statutory deadline. This present

case, of course, does not involve a statutory period for

seeking judicial review, but, rather, a period within

which an alien is to depart the country voluntarily.

This difference makes the present case a stronger can-

didate for tolling. First, unlike the final orders at issue

in this Court’s tolling precedents,” the voluntary de-

parture order itself is not a final order of deportation.

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

tion”). Under the applicable regulations, an immigra-

tion judge who grants voluntary departure “shall also

enter an alternate order o[f] removal,” 8 C.F.R.

9 See, e.g., Dieter, 429 U.S. at 8 (noting “the consistent practice

in civil and criminal cases alike has been to treat timely petitions for

rehearing as rendering the original judgment nonfinal for purposes

of appeal for as long as the petition is pending”); Healy, 376 U.S. at

77-80 (petition for rehearing filed by the Government in a criminal

case rendered the judgment nonfinal! for purposes of appeal).

§ 1240.26(d) (emphasis added), and, provided that the

alien abides by certain conditions, this alternate order

remains administratively inactive throughout the vol-

untary departure period. See, e.g., 8 C.F.R. § 1241.1(f).

In other words, while this Court’s precedents permit a

final order to be rendered nonfinal by a motion to re-

open, no such “undoing” is required here.

Second, this Court has permitted motions to reopen

to toll jurisdictional deadlines, which are strictly con-

strued. This Court has repeatedly emphasized that ju-

risdictional time limits are “mandatory” and cannot be

altered by the Court “except as Congress permits.”

Jenkins, 495 U.S. at 45; see also Bowles, 127 S. Ct. at

2366. Nonetheless, the Court has held that a motion to

reopen triggers automatic tolling even where the dead-

line involved is jurisdictional. See, e.g., Jenkins, 495

U.S. at 45 (petition for rehearing tolls the time for filing

a petition for certiorari). A voluntary departure period

presents an even stronger case for tolling because it

does not implicate a jurisdictional bar.”

In fact, as noted, the BIA itself has long held that

an administrative appeal tolls the voluntary departure

period. A-M-, 23 1. & N. Dec. at 743 (timely filing of

appeal “tolls the running of the time authorized by the

Immigration Judge for voluntary departure”); Matter

*° The Court has relied on tolling in other contexts as well. In

Young v. United States, 535 U.S. 43 (2002), for example, this Court

applied equitable to!ling to solve a statutory incongruity created

by the interplay of several provisions of the Bankruptcy Code,

which had created a statutory “loophole.” Jd. at 46,47. While ac-

knowledging that equitable tolling is typically limited to case-

specific circumstances, this Court nonetheless held that such toll-

ing was broadly applicable to the provision at issue, regardless of

the particular facts of any individual case. Jd. at 50-51.

of Chouliaris, 16 Il. & N. Dec. 168, 170 (BIA 1977)

(timely appeal tolls the running of the voluntary depar-

ture period); Matter of Villegas Aguirre, 13 1. & N. Dec.

139, 140 (BIA 1969) (same). While of course not con-

trolling, the BIA’s practice is especially significant be-

cause it tolls voluntary departure in circumstances vir-

tually identical to this case—i.e., while issues are pend-

ing before it—and notwithstanding the 60-day and 120-

day time periods set forth by ITRIRA.

* * *

Thus, statutory interpretation principles applied by

this Court in a number of parallel contexts demand the

conclusion that a timely motion to reopen automatically

tolls a period of voluntary departure.

II. CONSTITUTIONAL AVOIDANCE STRONGLY Favors AN

INTERPRETATION THAT PERMITS TOLLING

The doctrine of constitutional avoidance provides

an additional rationale for adopting a tolling rule. The

avoidance canon holds that where a statute is suscepti-

ble to more than one plausible construction, one of

which raises “serious constitutional doubts,” the re-

viewing court should adopt the interpretation that

avoids these doubts. Clark v. Martinez, 543 US. 371,

380-382 (2005). It is clear that a plausible—indeed, su-

perior—interpretation of the statute permits tolling of

the voluntary departure period pending a motion to re-

open. See Part | supra. A no-tolling rule, however,

would raise serious constitutional doubts. Congress

has provided aliens with the motion to reopen as one

procedure in the scheme of procedures governing de-

portation. With Congress having done so, the Court

should net presume that Congress intended for the ar-

bitrary actions of immigration officials to deprive some

aliens but not others of this procedure; this arbitrary

treatment at the hands of government raises substan-

tial due process and equal protection concerns. In light

of these concerns, the Court should permit tolling of the

voluntary departure period pending a motion to reopen.

A. ANo-Tolling Rule Would Raise “Serious Con-

stitutional Doubts” Under The Due Process

Clause

1. A no-tolling rule implicates liberty inter-

ests protected by the Due Process Clause

This Court has long recognized that an alien has a

liberty interest, protected by the Due Process Clause, in

remaining in this country, particularly where the alien

has formed ties to the conimunity. See, e.g., Carlson v.

Landon, 342 U.S. 524, 537-538 (1942); see also Yamataya

v. Fisher, 189 U.S. 86, 99-100 (1903); Demore, 538 U.S. at

523 (“It is well established that the Fifth Amendment

entitles aliens to due process of law in deportation pro-

ceedings.” (quoting Reno v. Flores, 507 U.S. 292, 306

(1993))). Indeed, deportation “may result also in loss of

both property and life, or all that makes life worth liv-

ing.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

Accordingly, the Court has held that “(meticulous care

must be exercised lest the procedure by which he is de-

prived of that liberty not meet the essential standards of

fairness.” Bridges v. Wixon, 326 U.S. 135, 154 (1945); ef.

Galvan v. Press, 347 U.S. 522, 531 (1954) (holding that,

despite its broad discretion over immigration matters,

“the Government must respect the procedural safe-

guards of due process”).

This liberty interest is protected by several proce-

dures, under statutes and regulations, that guard

against unlawful or erroneous deportation. See, e.g.,

Bridges, 326 U.S. at 154 (“We are dealing here with

precedural requirements prescribed for the protection

off the alien.”); see also, e.g., 8 U.S.C. § 1229a (setting

forth procedural protections for removal proceedings).

The motion to reopen at issue in this case is one such

procedure. Originally based in regulation, motions to

reopen serve a critical purpose, offering a means to

avoid deportation based on changed circumstances. See

pp. 2-5 supra. Consistent with this important role, mo-

tions to reopen, which are available to all aliens, includ-

ing voluntary departure recipients, are now an official

part of the immigration code. See 8 U.S.C.

§ 1229a(c)(7).

Absent tolling, however, the availability of this pro-

cedure to voluntury departure recipients will depend en-

tirely on arbitrary government action. If the BIA acts

on the motion in time, before the expiration of the volun-

tary departure period, then the alien receives the proce-

dural protection; if not, the alien is denied review by the

BIA. And the speed with which the BIA acts may turn

on any number of variables wholly unrelated to the alien

and outside his control—vacation schedules, workloads,

backlogs, and the work habits and whims of any given

immigration official BIA orders confirm significant

variability in the timing of decisions on motions to re-

open, some occurring swiftly enough to occur within a

voluntary departure period, but many occurring too late.

Compare Matter of Bastos Borges, 2007 WL 1192549

(BIA Mar. 30, 2007) (23 days), with Matter of Barragan-

Toro, 2007 WL 2074428 (BIA June 14, 2007) (more than

six months). See also Part 1.A.2 supra.

“The touchstone of due process is protection of the

individual against arbitrary action of government.”

Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (quoting

Dent v. West Virginia, 129 U.S. 114, 123 (1889)); see also

Demore, 538 U.S. at 532 (Kennedy, J., concurring)

(“(T]he Due Process Clause prohibits arbitrary depriva-

tions of liberty.”). Procedures are put in place to satisfy

due process by guarding against such arbitrary depriva-

tions. See, e.g., Vitek v. Jones, 445 U.S. 480, 489 (1980)

(“[DJue process protections are necessary ‘to insure that

[a liberty interest] is not arbitrarily abrogated.” (quot-

ing Wolff, 418 U.S. at 557)). But to serve their protec-

tive purpose, the procedural protections must of course

be available. And due process is violated where gov-

ernment action eliminates access to or otherwise by-

passes such procedural protections in a given case. See,

e.g., Zadvydas v. Davis, 533 U.S. 678, 718-724 (2001)

(Kennedy, J., dissenting) (concluding that a “due process

violation” would arise “|wlere the INS, in an arbitrary

or categorical manner, to deny an alien access to the ad-

ministrative processes in place to review continued de-

tention” because “aliens are entitled to be free from de-

tention that is arbitrary or capricious.”).”'

This Court has gone further than this, requiring

that the procedures themselves not be arbitrary, even

in situations where the due process interest at stake is

limited. Ohio Adult Parole Authority v. Woodard, 523

U.S. 272 (1998), considered a due process claim concern-

ing the state clemency proceedings of a death row in-

‘The need for consistency in the availability of procedural

protections is inherent in the concept of due process. In the par-

ticular context of immigration, the proposition that access to pro-

cedures protecting aliens’ liberty interests cannot be arbitrarily

eliminated finds support in the case law even in situations in which

the procedure is a product of regulation, rather than statute. See,

e.g., Bridges, 326 U.S. at 153 (holding that the alien could rely on

BIA rules governing deportation procedures because “these rules

are designed as safeguards against essentially unfair procedures”),

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)

(holding that the alien was entitled to a discretionary decision by

the BIA on his application for suspension of deportation, which

was provided for by regulation, and that, in light of the regula-

tions, such decision could not be formed based on pressure from

the Attorney General).

mate. Having identified an ongoing interest in

Woodard’s life, five members of the Court held that,

notwithstanding that the governor had complete dis-

cretion and the state could eliminate clemency alto-

gether, this interest warranted “some minimal proce-

dural safeguards” for clemency proceedings. See id. at

288-289 (O’Connor, J., concurring in part and concur-

ring in the judgment, joined by Souter, Ginsburg, and

Breyer, JJ.); see also id, at 292 (Stevens, J., concurring

in part and dissenting in part). Because of the due

process interest, “[jjudicial intervention might, for ex-

ample, be warranted in the face of a scheme whereby a

state official flipped a coin to determine whether to

grant clemency, or in a case where the State arbitrarily

denied a prisoner any access to its clemency process.”

Id. at 289 (O’Connor, J.).

Here, Petitioner is not seeking to regulate the dis-

cretion of the BIA in deciding the motion to reopen.

Rather, he is making a more basic request that access to

that discretion, which Congress has made available, not

be arbitrarily eliminated by government action or inac-

tion. Under a no-tolling rule, the chances that the BIA

will review the motion on time are no more consistent or

reliable than a coin flip. Given that Congress has made

motions to reopen available, and even granted that the

motions are resolved at the BIA’s discretion, due proc-

ess requires that the availability of such procedures not

depend on arbitrary government action.

2. A no-tolling rule raises due process con-

cerns over aliens’ property interests in

motions to reopen

The arbitrary elimination of the motion to reopen for

a subset of aliens granted voluntary departure impli-

cates property interests protected by the Due Process

Clause. This Court has recognized property interests in

the right of access to adjudicative procedures, including

those where the relief sought is not assured. And the

Court has found that due process is violated where those

property interests are arbitrarily eliminated by gov-

ernment action. Here, the no-tolling rule raises consti-

tutional concerns by authorizing arbitrary deprivations

of aliens’ interests in the motion to reopen itself (as dis-

tinct from the underlying relief of reopening).

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

(1982), the Court identified a property interest analo-

gous to Petitioner’s interest in the motion to reopen.

Logan filed a timely charge of employment discrimina-

tion with a state commission but the claim was dismissed

because, due to the commission’s own inadvertence, it

had failed to convene a fact-finding conference within

the time period required by statute. /d. at 426-427.

Reversing, this Court held that Logan’s “right to

use the jstate’s} adjudicatory procedures” qualified as a

“species of property protected by” the Due Process

Clause. 455 U.S. at 428-429.°° The Court observed that

“while the legislature may elect not to confer a prop-

erty interest, ... it may not constitutionally authorize

the deprivation of such an interest, once conferred,

without appropriate procedural safeguards.”” Jd. at 432

(quoting Vitek, 445 U.S. at 490-491 n.6). The state had

deprived the plaintiff of the “opportunity to present his

case and have its merits fairly judged.” /d. at 433. “A

system or procedure that deprives persons of their

claims in a random manner ... necessarily presents an

unjustifiably high risk that meritorious claims will be

*? The existence of such a property interest had been “af-

firmatively settled” in Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313 (1950). Logan, 455 U.S. at 428.

terminated.” Jd. at 434-435. In the instant case, as in

Logan, a no-tolling rule means that “it is the state sys-

tem itself that destroys a complainant’s property inter-

est, by operation of law, whenever the Commission fails

to convene a timely conference” (or in this case, the

BIA fails to resolve the motion), iad. at 423, whether the

“action is taken through negligence, maliciousness, or

otherwise,” id. at 436.°°

The Court has been careful to distinguish such an

interest from the interest in the relief sought, which

itself may not be a protected interest. The discretion-

ary nature of the relief, though relevant to any interest

in the relief, need not affect the constitutional status of

the interest in the procedure itself. See, e.g., American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 61 & n.13

(1999) (observing that plaintiffs “do not contend that

they have a property interest in their claims for pay-

ment, as distinct from the payments themselves”); see

also id. at 62 (Ginsburg, J., concurring in part and con-

curring in the judgment).™

*3 Since Logan, the Court has observed that “{]]ittle doubt

remains that such an intangible interest is property protected by

the Fourteenth Amendment.” Tulsa Prof! Collection Servs., Inc.,

v. Pope, 485 U.S. 478, 485 (1988) (claim against an estate for an

unpaid bill).

4 The case law demonstrates that the discretion involved in

the grant of the motion to reopen does not eliminate the due proc-

ess protections applicable to the motion itself. In Logan, the Court

made clear that Logan was not entitled to relief, but merely “to

have the Commission consider the merits of his charge.” 455 U.S.

at 434; see also St. Cyr, 533 U.S. at 307 (explaining that

“(ejligibility that was ‘governed by specific statutory standards’

provided ‘a right to a ruling on an applicant’s eligibility,’ even

though the actual granting of relief was ‘not a matter of right un-

Here, Congress has made motions to reopen avail-

able to aliens, including those receiving voluntary de-

parture. Consistent with Logan, the availability of the

motion cannot be decided arbitrarily based on whether

or not the BIA decides the motion in time. Such arbi-

trary treatment would create an “unjustifiably high

risk that meritorious claims” for motions to reopen

“will be terminated.” Logan, 455 U.S. at 435; see also

Banda-Ortiz, 445 F.3d at 393 (Smith, J., dissenting)

(concluding that “it cannot accord with due process for

the resolution of motions to turn on the happenstance of

how quickly an agency can clear its docket”).

Nor is it any answer to say that the arbitrary elimi-

nation of the motion is a feature of the motion as codified

by Congress. In Arnett v. Kennedy, 416 U.S. 134 (1974),

five Justices rejected this view. See id. at 166-167 (Pow-

ell, J., concurring in part and concurring in the result in

part, joined by Blackmun, J.); id. at 177-178 (White, J,

concurring in part and dissenting in part); id. at 210-211

(Marshall, J., dissenting, joined by Douglas and Brennan,

JJ.). Justice Powell explained:

This view misconceives the origin of the right to

procedural due process. That right is conferred,

not by legislative grace, but by constitutional

guarantee. While the legislature may elect not

to confer a property interest in federal employ-

ment, it may not constitutionally authorize the

deprivation of such an interest, once conferred,

without appropriate procedural safeguards.

Id. at 167; cf. Vitek, 445 U.S. at 490 n.6 (quoting Justice

Powell’s opinion in Arnett with approval). Here, once

der any circumstances, but rather is in all cases a matter of grace”

(quoting Jay v. Boyd, 351 U.S. 345, 353-354 (1956))).

the agency and Congress have made motions to reopen

available, the availability cannot be arbitrarily elimi-

nated.

B. The Arbitrary Treatment Of Aliens Granted

Voluntary Departure Under A No-Tolling

Rule Raises Equal Protection Concerns

The disparate treatment of aliens granted volun-

tary departure based on arbitrary government actions

raises an additional constitutional concern under the

equal protection component of the Fifth Amendment.

Equal protection “imposes a requirement of some

rationality in the nature of a class singled out.” James

v. Strange, 407 U.S. 128, 140 (1972) (quoting Rinaldi v.

Yeager, 384 U.S. 305, 308-309 (1966)). Even where the

Due Process Clause does not necessarily reach arbi-

trary deprivations of liberty or property, the principle

of equal protection may restrain officials from engaging

in differential treatment without rhyme or reason. See,

e.g., Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995)

(noting that even where due process does not apply, the

Equal Protection Clause protects prisoners “from arbi-

trary state action even within the expected conditions

of confinement”); cf. City of Cuyahoga Falls v. Buckeye

Cmty. Hope Found., 538 U.S. 188, 200 (2003) (Scalia, J.,

concurring) (“Those who claim ‘arbitrary’ deprivations

of nonfundamental liberty interests must look to the

Equal Protection Clause[.]”).

Although the majority in Logan rested on due

process, six Justices agreed that the treatment of

Logan’s claim failed the most basic requirements of the

Equal Protection Clause. See 455 U.S. at 438-439

(Blackmun, J., separate opinion, joined by Brennan,

Marshall, and O’Connor, JJ.); id. at 444 (Powell, J., con-

curring in the judgment, joined by Rehnquist, J.). As

Justice Blackmun explained:

certain randomly selected claims, because

processed too slowly by the State, are irrevo-

cably terminated without review. In other

words, the State converts similarly situated

claims into dissimilarly situated ones, and then

uses this distinction as the basis for its classifi-

cation. This, I believe, is the very essence of

arbitrary state action.

Id. at 442 (Blackmun, J., separate opinion). Justice

Powell agreed that the Illinois law had been applied in

an “arbitrary and irrational” manner and therefore vio-

lated equal protection. /d. at 444 (Powell, J., concurring

in the judgment).

Just as in Logan, the randomness of BIA timing

converts similarly situated aliens granted voluntary

departure into dissimilarly situated aliens for no rea-

son.

C. The Constitutional Avoidance Canon Favors

A Construction Of The Statute That Permits

Tolling

Constitutional avoidance is “a tool for choosing be-

tween competing plausible interpretations of a statu-

tory text, resting on the reasonable presumption that

Congress did not intend the alternative which raises

serious constitutional doubts.” Clark, 543 U.S. at 381;

see Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988) (“{T]he elementary rule is that every reasonable

construction must be resorted to, in order to save a

statute from unconstitutionality.” (internal quotation

marks omitted)). Here, in light of the substantial con-

stitutional concerns that would otherwise arise and the

plausible construction of the statute to permit tolling,

this Court should adopt this construction.

This Court has regularly relied upon the avoidance

canon when interpreting immigration statutes. See, e.g.,

St. Cyr, 533 U.S. at 314 (adopting a limiting construction

of IIRIRA to avoid constitutional doubts); Zadvydas,

533 U.S. at 699 (adopting a narrowing construction of 8

U.S.C. § 1231(a)(6) “to avoid a serious constitutional

threat”); Jd. at 689 (“We have read significant limitations

into other immigration statutes in order to avoid their

constitutional invalidation.”); see also Clark, 543 US. at

384 (affirming Zadvydas); Witkovich, 353 U.S. at 201-202

(finding the “path of constitutional concern ... clear” in

construing Section 242(d) of the INA of 1952). The ap-

plication of the avoidance canon is far more straightfor-

ward here than in several prior cases.

A tolling rule, for instance, does not require this

Court to ignore seemingly clear indicia of congressional

intent in order to avoid constitutional problems—the

statutory text is simply silent with respect to the prob-

lem at hand. Compare Part 1.A.2 supra (showing no

indication that Congress intended to bar arbitrarily

motions to reopen for voluntary departure recipients),

with St. Cyr, 5383 U.S. at 308-314 (finding a lack of clear

and express congressional intent to bar the filing of ha-

beas petitions in a statute entitled “Elimination of Cus-

tody Review by Habeas Corpus”).

Moreover, tolling aliens’ voluntary departure peri-

ods would not require this Court to cut a statutory limi-

tation from whole cloth. Unlike the six-month limita-

tion period adopted in Zadvydas, tolling is an ordinary

judicial remedy, see Part 1.D supra. Indeed, Peti-

tioner’s reading of the statute is entirely consistent

with the agency’s practice of tolling voluntary depar-

ture periods pending appeals of immigration judges’

decisions to the BIA, see id. (citing cases).

“{E]very reasonable construction must be resorted

to{ | in order to save a statute from uncunstitutionality.”

Gonzales v. Carhart, 127 S. Ct. 1610, 1631 (2007) (inter-

nal quotation marks omitted). The tolling rule that Peti-

tioner has urged constitutes a plausible interpretation of

the Act. Given the “serious constitutional concerns” of

the Government’s construction, this Court should read

the Act to require tolling of the voluntary departure pe-

riod upon the filing of a timely motion to reopen.

Il]. AT A MINIMUM, THE COURT SHOULD TOLL THE VOL-

UNTARY DEPARTURE PERIOD IN THIS CASE

Even if this Court does not hold that tolling should

be permitted for all timely motions to reopen, the Court

should toll the voluntary departure period here.

At the time Petitioner filed his motion to reopen, he

sought to withdraw his request for voluntary depar-

ture—i.e., to waive any benefits and become subject to

a final order of removal—but was not permitted to do

so. Pet. App. 3-4; see Young v. United States, 535 U.S.

43, 44, 46-47 (2002) (applying equitable tolling to close

statutory “loophole” in the Bankruptcy Code). And he

sought a stay, which was never acted on by the agency.

Pet. App. 3-4; see also Sidikhouya, 407 F.3d at 953-954

(Loken, C.J., dissenting in part and concurring in

judgment) (rejecting broad tolling rule; nonetheless,

because alien had filed for a stay with motion to reopen,

concluding that court should remand to BIA for a ruling

on alien’s motion to stay).

Moreover, it simply cannot be said that Petitioner

knowingly waived his right to a motion to reopen by

accepting voluntary departure. See, e.g., Mendoza-

Lopez, 481 U.S. at 840; Patino, 23 1. & N. Dec. at 76 (be-

cause of the “profound ramifications” of “relinquish[ing]

the parties’ opportunity to seek review of the Immigra-

tion Judge’s ruling,” any waiver must be “knowingly

and intelligently made”); cf. 8 U.S.C. § 1229e(d)(3) (vol-

untary departure order shall inform alien of penalties

for failure to depart). The immigration judge expressly

asked whether Petitioner “reserve[d] appeal,” and Pe-

titioner’s counsel responded that he did. C.A. App. 167.

In fact, at the time Petitioner filed his motion to re-

open and reconsider, the courts of appeals to have con-

sidered the question had unanimously concluded that a

timely-filed motion to reopen tolls the period of volun-

tary departure. See p. 10 supra; see also Ibarra, 502

U.S. at 7 (“{w]ithout a clear general rule litigants would

be required to guess at their peril”); Clymore v. United

States, 217 F.3d 370, 375-376 (5th Cir. 2000) (applying

equitable tolling to a statute of limitations and citing

the “unsettled state of the law at the time that [plain-

tiff] initiated his motion”).

Thus, at a very minimum, tolling should apply in

this case. In the alternative, Petitioner should be per-

mitted to withdraw his request for voluntary departure

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

CONCLUSION

The judgment of the Fifth Circuit should be re-

versed.

SETH P. WAXMAN

RACHEL Z. STUTZ

MICHAEL J. GOTTLIEB

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 77056

(713) 625-9225

NOVEMBER 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

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

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.