Opposition Brief — William v. Immigration & Naturalization Service

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@ FEB 12 20

No. 00-584

OFFICE OF THE CLERK

Jn the Supreme Court of the Gnifed States

HANY E. WILLIAM, PETITIONER

uU.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

BARBARA D. UNDERWOOD

Acting Solicitor General

Counsel of Record

STUART E. SCHIFFER

Acting Assistant Attorney

General

DONALD E. KEENER

LISA M. ARNOLD

MATTHEW R. HALL

Attorneys

Department of Justice

Washington, D.C. 20580-0001

(202) 514-2217

QUESTION PRESENTED

A regulation promulgated by the Attorney General

directs that a motion to reopen a deportation or ex-

clusion proceeding “must be filed no later than 90 days

after the date on which the final administrative decision

was rendered in the proceeding sought to be reopened.”

8 C.F.R. 3.2(c)(2). The question presented is:

Whether a motion to reopen is timely if it is filed

more than 90 days after the final administrative de-

cision, but within 90 days of the Board of Immigration

Appeals’ denial of a motion to reconsider that decision.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

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

ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S.

270 (1987)

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ........0-secee0e

INS v. Doherty 502 U.S. 314 (1992)

L-V-K, In re, Interim Dec. 3409, 1999 WL 607159

(B.I.A. Aug. 10, 1999), vacated on other grounds,

No. 99-71060 (9th Cir. Apr. 3, 2000)

Lopez v. Davis, 1218S. Ct. 714 (2001)

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

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

(1994)

Statutes and regulations:

Illegal Immigration Reform and Immigrant Responsi-

bility Act of 1996, Pub. L. No. 104-208, Div. C,

110 Stat. 3009-546

8 U.S.C. 1101(a)(47)(B) (Supp. V 1999)

8 U.S.C. 1101(a)(47\(B)Gi) (Supp. V 1999)

8 U.S.C. 1229a(c)(6) (Supp. V 1999)

8 U.S.C. 1229a(c)(6)(C)(i) (Supp. V 1999)

(IIT)

aon

4,5,6

a ae |

Regulations—Continued:

8 C.F.R.:

Pt. 3:

Section 3.2(c)(1)

Section 3.2(c)(2)

Section 3.2(c)(3)

Section 3.2(¢)(3)(ii)

Section 3.39

Pt. 241:

Section 241.31

In the Supreme Court of the Gnited States

No. 00-584

HAny E. WILLIAM, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The court of appeals’ opinion (Pet. App. 1-7) is

reported at 217 F.3d 340. The decisions of the Board of

Immigration Appeals (Pet. App. 8-9, 10-13, 14-22) are

unreported.

JURISDICTION

The court of appeals entered its judgment on July 17,

2000. The petition for a writ of certiorari was filed on

October 13, 2000. The jurisdiction of this Court is

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

STATEMENT

1. By regulation, an alien who has received an ad-

ministrative adjudication of his claims for relief from

deportation or exclusion may file a motion to reopen the

(1)

administrative proceeding based on material evidence

that “was not available and could not have been dis-

covered or presented at the former hearing.” 8 C.F.R.

3.2(c)(1). An alien, however, “may file only one motion

to reopen deportation or exclusion proceedings

(whether before the Board or the Immigration Judge),”

and that motion “must be filed no later than 90 days

after the date on which the final administrative decision

was rendered in the proceeding sought to be reopened,

or on or before September 30, 1996, whichever is later.”

8 C.F.R. 3.2(¢)(2).’

2. Petitioner, a citizen of Egypt, entered the United

States in 1992 on a student visa. In 1994, the Immi-

gration and Naturalization Service (INS) initiated de-

portation proceedings against petitioner for failing to

comply with the conditions of his non-immigrant status.

Pet. App. 2. Petitioner conceded that he was deport-

able, but requested asylum. The immigration judge

denied relief and ordered deportation. Jbid. The Board

of Immigration Appeals (Board) affirmed the order of

deportation on September 24, 1997. Id. at 14-22.

Petitioner filed a timely motion to reconsider with

the Board, in which he proffered new evidence to sup-

port his claim of a well-founded fear of persecution as a

Coptic Christian. Pet. App. 11. In that same motion,

petitioner also sought to reopen the proceedings to

apply for adjustment of status based on his marriage

and the possible naturalization of his wife. Jd. at 12.

1 The time limit does not apply to claims for asylum or with-

holding of deportation based on changed circumstances arising in

the country of nationality or the country to which deportation is

ordered, if the evidence of changed conditions is material and was

unavailable at the time of the original hearing. 8 C.F.R.

3.2(¢)(3)(ii).

The Board denied the motion to reconsider on the

ground that petitioner had failed to identify evidence of

a particularized threat based on religion. Jd. at 11-12.

The Board then denied the motion to reopen on the

ground that petitioner had failed to establish prima

facie eligibility for adjustment of status and failed to

comply with the rules for presentation of such a claim.

Id. at 12-13.

On July 28, 1998, petitioner filed a second motion to

reopen, again seeking relief based on his anticipated

eligibility for adjustment of status once his wife was

naturalized. Pet. App. 3. Petitioner asserted that his

motion was timely because it was filed within 90 days of

the Board’s denial of his earlier motions to reconsider

and reopen. Ibid. Because the Board understood

petitioner’s motion as a request to reopen the Board’s

decision on his underlying eligibility for deportation—a

matter adjudicated in the Board’s September 1997

ruling—the Board dismissed the motion as untimely.

Id. at 8-9.

3. The court of appeals affirmed. Pet. App. 1-7. The

court held that the Board reasonably determined that

the “final administrative decision” triggering the 90-day

time limit in 8 C.F.R. 3.2(c)(2) was the Board’s issuance

of a final decision dismissing petitioner’s appeal from

the immigration judge’s order of deportation. The

court stressed that a motion to reopen seeks to intro-

duce new evidence and thus must be directed to pro-

ceedings that were once open for the consideration of

evidence. Pet. App. 5. Only the process that led up to

the entry of the final order of deportation involved the

consideration of evidence, the court explained. Jd. at 5-

6. By contrast, the court concluded, the Board’s denial

of the motion to reconsider represented only the

Board’s refusal to disturb the finality of the admini-

strative process and thus did not toll the running of the

90-day limitations period. The court emphasized that

the phrase “final administrative decision” in the regu-

lation refers to “the proceeding sought to be reopened,”

and concluded that the Board’s determination that “the

proceeding sought to be reopened” refers to the par-

ticular stage of the administrative process that the alien

seeks to alter, rather than to the entire deportation

process as a whole, is not “plainly erroneous or incon-

sistent with the regulation.” Jd. at 7.

ARGUMENT

Petitioner seeks this Court’s review of the court of

appeals’ decision upholding the Board of Immigration

Appeals’ interpretation of the regulation governing the

filing of motions to reopen deportation proceedings.

That issue does not merit further review.

1. Petitioner identifies no conflict in the circuits on

that question. Nor are we aware of any. To the con-

trary, as petitioner concedes (Pet. 18-19), the court of

appeals’ decision appears to be the first appellate ruling

on the question.

2. Petitioner likewise fails to establish a conflict with

any decision of this Court. To the contrary, the Board’s

construction of the phrase “final administrative de- _

cision” in the regulation accords with this Court’s deci- —

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

Court recognized that a deportation order becomes

“final” upon the Board’s dismissal of an appeal or the

alien’s waiver of the right to appeal, id. at 390, and held

that the filing of a motion to reconsider does not

“dislodge[] the earlier proceeding reviewing the under-

lying order” or otherwise disturb its finality, id. at 394.

See also 8 U.S.C. 1101(a)(47)(B)(i) (Supp. V 1999) (pro-

viding that an order of deportation becomes final upon

the Board’s affirmance ofthe order), — es

Petitioner places great weight (Pet. 17, 20-21) on the

Court’s holding in Stone that a denial of a motion to

reconsider is a separate and distinct final order subject

to judicial review. See 514 U.S. at 394-398. But that

argument is of no help to petitioner. The INS requla-

tion makes clear that the “final administrative decision”

that triggers the 90-day filing period is the final

administrative decision “in the proceeding sought to be

reopened.” 8 C.F.R. 3.2(c)(2). Petitioner’s motion did

not seek to reopen the Board’s consideration of the

legal merits of his motion for reconsideration. Rather,

the “proceeding sought to be reopened” by petitioner’s

motion was the underlying proceeding that culminated

in the order of deportation, because that is the only

proceeding in which his proffered evidence concerning

his marital status can be considered and might have

relevance. That final administrative decision, however,

was issued more than ten months before petitioner filed

his motion to reopen, rendering his motion untimely.?

3. The court of appeals’ decision is correct. The

Board’s interpretation of the regulation is consistent

with its text and purpose. A motion to reopen seeks to

* Furthermore, the court of appeals’ deference to the Board’s

consistent interpretation of the governing regulation is consistent

with this Court’s decisions. See, e.g., Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (1994); see also 8 C.F.R. 241.31 (provid-

ing that an order of deportation becomes final upon the Board’s

dismissal of an appeal); In re L-V-K, Interim Dec. 3409, 1999 WL

607159 (BIA Aug. 10, 1999) (en banc) (holding that the time limit in

8 C.F.R. 3.2(c)(2) on filing motions to reopen begins to run when an

order of deportation matures into a final order, regardless of the

disposition of subsequent motions), vacated on other grounds, No.

99-71060 (9th Cir. Apr. 3, 2000).

Pee Oren ete ere

reconvene “deportation or exclusion proceedings,”

8 C.F.R. 3.2(c)(2), for the presentation of “new facts

that will be proven at a hearing to be held if the motion

is granted.” 8 C.F.R. 3.2(c)(1). The regulation further

directs that the motion cannot be granted “unless it

appears to the Board that evidence sought to be offered

is material and was not available and could not have

been discovered or presented at the former hearing.”

8 C.F.R. 3.2(¢)(1).

Because a motion to reopen, by regulatory definition,

seeks to inject new evidence into the deportation

analysis, the motion necessarily must seek to open a

proceeding that is capable of receiving and considering

that new evidence. The Board’s denial of a motion to

reconsider is not fitted for such a task, because it

addresses questions of error or oversight in the Board’s

legal analysis, not consideration of previously unavail-

able factual evidence that could impact that analysis.

Cf. ICC v. Brotherhood of Locomotive E'ng’rs, 482 U.S.

270, 278-279 (1987). In other words, the Board’s denial

of a motion to reconsider is nothing more than a

decision not to disturb the finality of the underlying

deportation proceedings.

The Board’s and court of appeals’ interpretation of

the regulation, moreover, comports with the presump-

tion of administrative finality by requiring that re-

opening be requested shortly after an order of deporta-

tion matures into a final order. See, eg., INS v.

Doherty, 502 U.S. 314, 323 (1992) (“Motions for

reopening of immigration proceedings are disfavored

* * *. This is especially true in a deportation pro-

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

to the advantage of the deportable alien who wishes

merely to remain in the United States.”); see also Stone,

514 U.S. at 399 (noting Congress’s “fundamental pur-

pose * * * to abbreviate the process of judicial review

. . . in order to frustrate certain practices .. .

whereby persons subject to deportation were fore-

stalling departure by dilatory tactics in the courts”)

(quoting Foti v. INS, 375 U.S. 217, 224 (1968)).®

4. Further review is unwarranted in any event,

because the judgment below is correct on an indepen-

dent ground. At the time petitioner filed his motion to

reopen, the Board had already considered and denied

one motion to reopen by petitioner. See Pet. App. 12-

13. Thus, regardless of its untimeliness, petitioner’s

second motion to reopen is independently barred by

the regulatory prohibition on the filing of successive

motions to reopen. See 8 C.F.R. 3.2(c)(2) (“{A] party

3 Petitioner’s reliance (Pet. 17-18) on the current version of 8

U.S.C. 1229a(c)(6) (Supp. V 1999), which, in addressing motions to

reopen, omits the regulatory phrase “in the proceedings sought to

be reopened,” is misplaced in two respects. First, because peti-

tioner challenges a Board decision issued on or after October 31,

1996, in a deportation case initiated prior to April 1, 1997, the

transition rules of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat.

3009-546, govern his case, which makes the current Section

1229a(c)(6) inapplicable, as petitioner himself concedes (Pet. 17).

Second, even if it did apply, the amendment offers petitioner no aid

because it continues to require the filing of a motion to reopen

within ninety days of the final administrative order of removal. 8

U.S.C. 1229a(c6)(C)(i) (Supp. V 1999). Nothing in the statute

undercuts the established meaning of “final order” as the point in

time when an order of deportation becomes administratively final

because of the alien’s waiver of appeal, the lapse of the time

allowed for appeal, or the Board’s dismissal of the appeal. See 8

U.S.C. 1101(a)(47)(B) (Supp. V 1999); 8 C.F.R. 3.39, 241.31. In

addition, to the extent Congress left the term “final administrative

order of removal” undefined, the Board has broad authority to

interpret that term. See INS v. Aguirre-Aguirre, 526 U.S. 415,

423-425 (1999); see also Lopez v. Davis, 121 S. Ct. 714, 722 (2001).

may file only one motion to reopen deportation or ex-

clusion proceedings.”). Petitioner has never contested

the applicability of that prohibition or argued that he

falls within a recognized exception (see 8 C.F.R.

3.2(c)(8)) to the prohibition.

CONCLUSION

The petition for a writ of certiorari shouid be denied.

Respectfully submitted.