# Petitioners Brief — Dada v. Mukasey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0524%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2008 - **Citation:** 554 U.S. 1 ## Text 1\ 5306S CD NOV 5 - 2007 64ver No. 06-1181 se IN THE Supreme Court of the Rnited States SAMSON TAIWO DADA, Petitioner, v. 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) iv 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 Vv 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 vi 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 ix 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 X 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 xi 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/ TL 68 Interpreter Releases 907 (July 22, 1991)......... Page(s) IN THE Supreme Court of the United States No. 06-1181 SAMSON TAIWO DADA, Petitioner, v. 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. 2 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 3 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). 4 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). 5 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. 6 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- 7 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). 8 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 9 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- 10 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 11 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. 12 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 13 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, 14 467 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 15 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 16 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). 17 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 18 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”). 1Y 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). 20 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). 21 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). 22 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). 23 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 24 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. 25 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 © In 1996, Congress created a specific mechanism called “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”). 26 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). 27 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 28 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. 29 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. 30 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.”). 3l 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. 32 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”). 33 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. 34 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 35 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]”). 36 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). 37 § 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. 38 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- 39 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). 40 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- 4] 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). 42 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 43 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. 44 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- 45 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))). 46 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: 47 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. 48 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). 49 “{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 50 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0524%3A06. Public record. Not legal advice.