STONE v. IMMIGRATION AND NATURALIZATION SERVICE

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Argument of Alan B. Morrison

Chief Justice Rehnquist: We'll hear argument next in Number 93-1199, Marvin Stone v. The Immigration & Naturalization Service.

Mr. Morrison.

Mr. Morrison: Mr. Chief Justice and may it please the Court:

In March 1987, the respondent here issued an order to show cause to petitioner as to why he should not be deported from the United States.

Approximately 10 months later, after a hearing, the immigration judge ordered petitioner deported, and petitioner then filed an appeal with the Board of Immigration Appeals, proceeding pro se with a brief of approximately 13 pages.

Three-and-a-half years later, the Board of Immigration Appeals affirmed the order of deportation on July 26, 1991, in a brief opinion dealing with the issues presented.

Less than a month later, acting pursuant to the rules of the Immigration Service, petitioner filed a motion for reconsideration or reopening.

He later filed a very short brief, and the Immigration Service attorney filed a reply in the middle of October.

There the matter remained until the 3rd day of February, 1993, at which time the Board of Immigration Appeals denied the motion for reconsideration and reopening in an order that ran a page and a little bit onto the second page, most of which was boiler plate response to the motion.

Petitioner then filed a petition for review in the United States Court of Appeals for the Sixth Circuit on the 16th February, less than 2 weeks after the order came down.

He filed his brief shortly thereafter, and the Government filed its brief in the end of April 1993, a lengthy brief of some 33 pages, 14 of which dealt with the merits of the challenge.

In that brief, the Government said for the first time to petitioner, you are too late.

You should have filed your petition for review shortly within the 90 days after July 1991.

Oral argument was held shortly thereafter, and in early January the Court of Appeals for the Sixth Circuit issued its ruling.

It concluded that the petition for review was timely with respect to the denial of the motion for reopening or reconsideration, but it was not timely with respect to the original decision, even though the motions were then pending before the Immigration Service.

It agreed with the Government that the failure to file within the 90 days provided by the statute made the filing too late when it came in February 1993, and the question presented before this Court, on which the courts of appeals are badly divided, is, is that decision correct?

The Government recognizes that under the usual rule in administrative law and judicial review, that a timely filed motion for reconsideration or reopening renders the decision of the agency not final, such that not only need not a petitioner seek judicial review at that time, but the petitioner may not seek judicial review at that time.

And the reason for that rule is a sound one of judicial economy.

The courts should not become involved in deciding cases if the agency which has the matter before it has the ability and the power and under its rules the authority to reconsider the decision at that time.

Unknown Speaker: I take it--

--I have two questions, Mr. Morrison.

Number 1, what happens if the petition for judicial review is filed first, and then the petitioner decides, I'll ask for a rehearing.

What happens then?

Mr. Morrison: It is my understanding that the usual rule is that the filing of a petition for judicial review takes the matter into court, and that it does not divest the agency of the authority to reconsider, although it does not stop the court from considering the matter, and in that circumstance it is up to the court to decide whether it will choose to proceed with the case or allow it not to proceed.

Unknown Speaker: Which the statute here... an option that the statute here eliminates.

Mr. Morrison: No, Your Honor, I don't--

Unknown Speaker: It says that they shall be consolidated in such a situation--

Mr. Morrison: --No.

It only says they shall be consolidated, as I read it, if there are two or more petitions for review.

That is to say, it does not direct the court of appeals of the first case to hold it, and my reading of the cases is that some courts more or less automatically hold them if they are told.

In some cases some courts automatically don't hold them, and in other cases they do what seems to me the sensible thing to do, which is to look at the motion for reconsideration to see whether it really raises some new issues.

For instance, in the immigration area, where often the change in circumstances of the country to which the alien would be deported would be a very important element.

If somebody was, for instance, to be sent back to Bosnia, you would want to have the latest information on what the state of the world was in Bosnia before you sent the particular individual back.

On the other hand, if it was simply, you got it wrong and you misread your opinion or the opinion of the court of appeals there would be no particular reason for the court to stay that.

Unknown Speaker: --My second question is whether the filing of the motion for reconsideration or for reopening simply tolls the period for review, or does it retroactively render the decision nonfinal so that you have the full period at the end of... once the petition for reconsideration is disposed of?

Mr. Morrison: I have not seen a case that deals with that question, Your Honor, that comes up explicitly.

It wouldn't matter here in this particular case.

My own opinion--

Unknown Speaker: Mr. Morrison, would you clarify what you said before?

I thought you said that in most... the normal situation is, not only can you file the petition for reconsideration first, but if you do... if you do, you have no final order and you can't file a notice of appeal.

Maybe I misunderstood you.

Mr. Morrison: --Yes, that is correct, Your Honor, and the question I believe Justice Scalia was asking me, is that because it makes it a tolling that you stop at that point... suppose they filed it, as in this case, on day 26.

They filed the motion for reconsideration on day 26.

The question that Justice Scalia I believe asked me, does he... does the petitioner here have 90 days from the time of the denial of the motion for reconsideration, or 90 minus 26, which I think is 64, and I don't know of any case that answers that.

It is my opinion that the filing of the motion for reconsideration renders it not final.

This would be analogous, for instance, to what happens under the Federal Rules of Civil Procedure, where a filing of a timely motion for reconsideration under Rule 52a or 59 renders the decision nonfinal and you get your full 30 days at the end of that time.

Unknown Speaker: What happens if the Attorney General then says, on the plane or on the ship, out you go?

One of the regulations says that the filing of an application for reconsideration does not stop the immediate deportation of the person.

Suppose you have filed for reconsideration.

You say, then you have no final judgment, you can't come to the court of appeals.

The Attorney General says, I'm shipping this person out.

Do you have any way to stop that--

Mr. Morrison: Yes, Your Honor.

Unknown Speaker: --since you can't get to a court of appeals?

Mr. Morrison: You may not go to the court of appeals under that circumstance.

Under 1105a(a)(10) the jurisdiction under habeas corpus in the district court is specifically preserved for that situation, and there are a number of cases where that arises where the alien would then go to the district court where he would have to obtain a stay of deportation, assuming that the agency didn't give it to him.

I might point out, of course, two things.

The first is, we do not concede in this case the validity of that regulation, because we believe that that regulation depends upon the authority under 8 U.S.C. 1252c, which is the authority to deport, and it says there must be a final order of deportation.

You then may have 6 months to deport the alien.

This case doesn't present that question, so we don't accept the validity of that regulation, and since the phrases are the same in both statutes, we think they should be interpreted together.

But even assuming the validity of the regulation, we would first point out that in many cases, as in this one here, Mr. Stone filed his motion for reconsideration in August of 1991.

At no time did the Service ever try to deport him.

Indeed, it has not to this day tried to deport him, even after it prevailed in the court of appeals, and so it is in some respects true that the regulation provides that, but it is not a process which automatically goes forward.

The statute, indeed, gives the agency 6 months to do it.

Unknown Speaker: If you go to the district court on habeas corpus, Mr. Morrison, what sort of considerations does the district court look at in deciding whether to give a stay or not?

Mr. Morrison: I would think it would look at two things, Your Honor.

First, it would look at, as in any kind of an application for a stay, the equities, and it might well look at the standard questions on a stay such as the probability of success.

Unknown Speaker: Predicting probability of success in the court of appeals?

Mr. Morrison: Well, it's a little bit awkward.

I would suppose it would probably have to predict it solely on the motion for reopening part of it.

It doesn't happen very much for this very sensible reason, that the Immigration Service simply doesn't want to start to go deporting people when it has it fully within its power to simply decide these matters.

This case is not an unusual one in which a motion for consideration languished for 17 months before the Immigration Service, and the Immigration Service looks a little awkward trying to throw people out of the country before a) they decide the case and b) they have given them their statutory right to go to the court of appeals.

Unknown Speaker: Well, but the right to rehearing is totally a creature of agency regulations.

Mr. Morrison: That is correct, Your Honor.

I would agree that--

Unknown Speaker: They could cut that out tomorrow.

Mr. Morrison: --I agree with that, and if they cut it out we wouldn't have a situation like this.

The agency... I think they could certainly on reconsideration.

On the reopening, Your Honor, it may be a little different, because there are statutory requirements with regard to the country to which the person could be sent and other kind of asylum and other kind of issues, and it might have a lot more difficulty cutting out reopening in terms of presenting new evidence.

But obviously neither of those cases is before us today, and the agency, even today when Congress told them in 1990 to issue new regulations, they finally got around to proposing them 4 years later, and those regulations continue, albeit under somewhat different circumstances, the right to file for reconsideration and for reopening.

Unknown Speaker: The part that I might be a little confused about, that I need clarification about, is this.

Imagine that you are the immigrant, and now on day 1, down comes an order.

It says, go.

Now, on the Government's interpretation--

Mr. Morrison: Your Honor, do you mean--

Unknown Speaker: --it's a final--

Mr. Morrison: --a final--

Unknown Speaker: --it's no reconsideration, final order, go, and on the Government's interpretation, I know what I'm supposed to do.

I go and appeal immediately.

That stays the whole business.

I file a petition for reconsideration.

When that's finally decided I can appeal that, too, and the thing will be consolidated.

All right.

I can understand how that works.

Now take your interpretation.

Your interpretation, I sit there, I get the order, it says, go.

I'm not sure I know what I want to do.

If, after all, I file a petition for reconsideration, I no longer can appeal the order saying go.

Mr. Morrison: --At that time.

Unknown Speaker: No, right.

Mr. Morrison: That is correct.

Unknown Speaker: And if things drag on, the time will expire.

Maybe they'll deport me, so I might have to give up... I have to make a choice.

Either I... I'm... I can't really stay in the country during the appeal.

If I file... at least I can't be certain I can.

If I file that motion for reconsideration, that doesn't seem like a very good thing.

It seems like I'll either have to give up my right to file a motion for reconsideration, or I'll have to give up my certainty that I can stay here until I get an appellate court to look at this thing.

Now, am I right about that, and if I'm right, why would Congress want to do that?

Mr. Morrison: Well, I would say that Your Honor is correct that that is the way the Government interprets the statutory scheme.

I would say that Your Honor's analysis gives further force to my view that the Government's view that it has the right to deport somebody while it is itself reconsidering the matter is not correct.

I want to emphasize that issue is not before the Court today, but it's particularly unreasonable for the Government to take this position, because the regulations on reconsideration, while they do warn you that you can't stay in the country, don't also warn you that you better go file your notice... petition for review right away, so the alien first learns that... about this potential trap, the same kind of trap that this Court remarked about 2 years ago in the Darby case.

We have exactly that trap here.

And we're also dealing with people who, by definition, many of them are proceeding pro se, they get no notice, many of them don't speak any English, if they have lawyers, the lawyers may not be fully familiar with these difficult matters of administrative law that we're dealing with here.

They're basically experts in the immigration field.

And I think also it's fair to say that many people know that the Immigration Service is not deporting people promptly, even though their regulations say they can do it.

It leads to the possibility of selective enforcement, which is a whole other set of problems.

Unknown Speaker: Well, why isn't the most rational thing to do to say, file your notice of appeal immediately, then you can file for reconsideration, and everything is going forward, leave it to the judgment of the court of appeals whether it wants to stay the appeal pending the reconsideration at the agency level?

Mr. Morrison: Well, Your Honor, I would say two things to that.

The first question, of course, is not whether, if we were designing a system sitting here, we would design the system that way.

The usual rule is to the contrary.

That is to say, as I outlined it before, and as the ICC case makes it clear, the usual rule is to the contrary, that you don't burden the courts with even having to deal with the administra--

Unknown Speaker: But that was the ICC's position in that case.

Here, the Attorney General's position, stated in the regulation, is the other way.

Mr. Morrison: --Well, it was the ICC's position because that was the way they could get the case thrown out of court.

I would say that the Immigration Service over the years in cases like Foti and Cheng Fan Kwok took different positions on which court you could go to depending on who was the winner or who was the loser in a particular situation.

Unknown Speaker: But now there is no doubt about the Attorney General's position.

It's stated clearly--

Mr. Morrison: Yes.

Unknown Speaker: --and if you just read the regulations you'd know what you have to do, and you're saying that the Attorney General can't have such a regulation.

Mr. Morrison: That is correct, and I say that first because... I want to answer Your Honor's question about why the system wouldn't make sense.

It would make sense for everybody except the courts of appeals.

That is, the courts of appeals, the judges would have to get these motions and sit down and decide them regularly.

In many cases, the briefs would have to be filed, and the court would have to decide whether to hold argument or hold in abeyance, they would have to decide whether to issue an opinion, which might end up being an advisory opinion, and all of those reasons are the same whether it's the immigration case or the ICC or the NLRB, and I suggest to you that in the absence of some indication that Congress intended the result to be different in this case from others, it should not be different.

Unknown Speaker: Or even... or for that matter, even that the Attorney General intended the result to be different.

The language of the Attorney General's regulation is not much different from the language of the Hobbs Act that we interpreted in the ICC case.

Isn't that so?

Mr. Morrison: Well, there is nothing in the regulation itself that tells you when you go to court.

it tells you when the alien can be deported, but there's nothing in the regulation, which is of course another problem that I have with it.

The Government makes a great deal of the fact that this is an immigration area and that Congress was very worried in 1961 when it passed the judicial review provision at issue here to get these cases over with quickly.

Well, the one particular problem that Congress addressed was the multiple appeals.

That is, the alien going to the district court, the district court deciding it on the record and going to the court of appeals.

Congress said, no, we don't want two levels of appeals.

Exclusive... and that's the word in the statute, exclusive jurisdiction is in the court of appeals.

That took care of one problem.

But interestingly, Congress did not say anything at all about the kind of speed or the necessity for moving the case ahead the way the Government suggests here.

There is nothing in the statute that distinguishes this case from the Hobbs Act.

In fact, the Hobbs Act is the model, but ironically... the Government says Congress was concerned about speed.

They gave them 180 days for an alien to get to court.

They cut it back to 90 days.

The Hobbs Act, which deals with the ICC and many others, is only 60 days, rather odd if you were really concerned about getting to court.

Unknown Speaker: What about the 1990 amendment, Mr. Morrison?

Isn't that a significant difference between the statutory scheme here and the one involved in the Hobbs Act case?

Mr. Morrison: I must confess, Your Honor, when I looked at the 1990 amendment, I wasn't quite sure what it was actually going to do in the real world.

My experience in the court of appeals is that if you've got two cases arising out of the same matter, as this surely would be, the court would inevitably consolidate them.

There is no legislative history that helps on this.

The Government's--

Unknown Speaker: Isn't it fair to say that it displays the expectation of Congress that at least with enough frequency to be worth addressing in the U.S. Code there would be two separate appeals, one from the original order and one from the denial of the petition for reconsideration?

Mr. Morrison: --I think that that is, as an inference... the Government's position first is that under our view of the statute there would never be a case in which this would happen.

That seems to me to be demonstrably false, and let me explain why.

Suppose that the... Mr. Stone here had not filed, and then... but had sought review in the court of appeals within the 90 days.

Six months later... his country of origin is Canada, so it's not likely to happen, but let's assume that something happened in Canada that made it very changed circumstances for him to go back there.

He wouldn't file a motion for reconsideration, he would file a motion to reopen, setting forth in affidavits a new circumstance.

For instance, his family situation might have changed here, he might have a sick child in the United States, and he would be asking for some form of discretionary relief.

Many aliens do that.

They ask for some form of discretionary relief on reopening.

If that were denied, he would then seek judicial review on the reopening under a rather different standard from under the original case, just like in the ICC case.

That is, it would be an abuse of discretion, and there are rules of the INS saying when they have to reopen and so forth and so on, what you have to put forth.

In that situation, the 1990 statute would come into play, just as it almost certainly would have come into play before 1990, so--

Unknown Speaker: Is that situation common enough, however, to be a reasonable explanation for the statutory provision?

Mr. Morrison: --I can't answer--

Unknown Speaker: I mean, you know--

Mr. Morrison: --I can't answer that question, Your Honor.

Unknown Speaker: --you can come up with a circumstance that--

Mr. Morrison: Well, I think it's quite common that aliens do submit new information.

That is a fairly common circumstance.

There is nothing in the legislative history to support it.

There was directed to be a study by the Attorney General afterwards, and I think there were some... less than 1,000 cases in which motions for reopening were filed.

I'm sorry I can't read the Congress' mind on that.

It certainly is not an absurd notion that they should do it, and it was a notion that they should do something to speed up the process.

But interestingly, that amendment is adding a new section (a)(6).

It does not change either the meaning of the final order of deportation, or the 90 days, or anything else in the language which we're relying on here.

Unknown Speaker: --Mr. Morrison, may I go back to Justice Breyer's question to you?

I'm not sure I'm thoroughly satisfied with your answer to him.

You in effect say the issue of whether a petition for reopening stays the deportation is not before us.

Does that mean we must assume for present purpose... for purposes of deciding this case that the Government is correct?

In which event it seems to me the problem he poses you haven't answered, namely that a person is ordered to be deported, and files a petition for reopening, and loses the right to appeal because it's rendered the order nonfinal, and may therefore be deported at the whim of the Government.

Mr. Morrison: Subject to the right of going to the district court on a habeas corpus petition--

Unknown Speaker: Yes, but the habeas corpus is not a guarantee--

Mr. Morrison: --and I would argue very vehemently that--

Unknown Speaker: --Let's put aside for a moment the habeas corpus, because that's not a guarantee by any means, whereas the appeal is a guarantee.

Mr. Morrison: --Yes, Your Honor, but one would be hard-pressed to know what the Immigration Service would say in response to my motion, which would say, first, we have a timely motion for reconsideration which they haven't acted on, despite the many months it's been before them, they want to deport him, as soon as they act on it he's going to file and go to court on... he's going to go to court and get an automatic stay of deportation.

Where do the equities lie in that kind of situation?

And I think, under those circumstances, most district judges would be pretty hard pressed to say, send him out of the country, he loses all of his rights at that point regardless of what the merits of the decision are, because the Immigration Service has it fully within its power to correct the matter as soon as it wants to if it will only get around to deciding these motions for reopening.

Unknown Speaker: I'm just concerned that your position may not be the most protective of the immigrant.

That's what I'm suggesting.

Mr. Morrison: Well, Your Honor, I am representing my client here today, and his case is not--

Unknown Speaker: On this particular... the state of, you know, this particular record... I'm thinking of the hypothetical case in which a person 60 days after the order of deportation is entered, is about to be deported, and takes an appeal.

He has an insurance policy right now.

He cannot be deported.

Mr. Morrison: --That is--

Unknown Speaker: Under your view, he could be deported.

Mr. Morrison: --He could be deported if the Service a)... I don't believe under the law... as I read the statute--

Unknown Speaker: Well, I understand, but you're relying on an issue you say we don't have to decide.

Mr. Morrison: --Have to decide, that is correct.

I'd be more than happy to have Your Honors decide it in my favor on that issue.

Unknown Speaker: But I'm just wondering if in order to protect the people in this position we do not need to decide that, and you say we don't.

So you're willing to rest on the proposition, as I understand it, that he would be subject to deportation whenever he makes the... when he does something that makes the deporta... if he... let's see.

I don't want to get myself mixed up here.

If he fails to appeal, he would be subject to deportation.

Mr. Morrison: That is, I believe, the only intellectually defensible way that you can reach the result which I'm urging this Court to reach today, that my client's petition for reconsideration stop, whether it's tolled or made nonfinal.

It's the only way he's going to get his day in court, and that is my obligation to do it.

And I believe that aliens will be adequately protected.

I do not believe the Service will engage in wholesale orders of deportation, and the district courts would not stand for it if they did, when it's perfectly within their power to see that people both--

Unknown Speaker: If we affirm the Sixth Circuit here, your client is on his way, right?

Mr. Morrison: --That is correct, Your Honor.

That is correct, unless there is some other discretionary form of relief, which he may seek with the Immigration Service.

As far as the court system is concerned--

Unknown Speaker: Would that stay his deportation further?

Mr. Morrison: --No, it would not.

It would not, Your Honor, not unless--

Unknown Speaker: When was the original order to deport him entered?

Mr. Morrison: --The... well, the order to show cause was in March 1987.

Unknown Speaker: That was, what, 7 years ago?

Mr. Morrison: Yes.

Almost 8 now.

Unknown Speaker: Eight.

Mr. Morrison: The immigration judge was in January '88, the Board of Immigration Appeals was 3-1/2 years later, in July of 1991, and they have made no effort to deport him in those, whatever number of years you're measuring it from, despite their regulations and despite what they say the statute is, and I am very concerned about this, Your Honor.

I don't know what the right answer is.

It seems to me the best answer is for the service to get off the dime and to start to proceed with these matters so that they can be taken care of.

I think that's what Congress wants, and instead of playing judicial yo-yo--

Unknown Speaker: Mr. Morrison, I want to come back to the 1990 amendment, the consolidation provision.

You have given me an explanation of how that provision has meaning with regard to reopening.

How does it have meaning with regard to reconsideration, because it does say, any review sought with respect to a motion to reopen or reconsider such an order shall be consolidated--

Mr. Morrison: --As Your Honor may know, the Service has no time limits whatsoever on motions for either reconsideration or reopening, and I suppose I could, if I were an attorney in good faith, say to the INS, there's a new case which you've decided which is inconsistent even after my time for review has... I've already filed my petition for review.

You treated somebody differently.

That's reconsideration as opposed to reopening.

Reopening is new evidence.

Reconsideration is that you're now inconsistent with another line of cases that you're decided.

I'd like to reserve what little time I have left.

Thank you.

Unknown Speaker: --Very well, Mr. Morrison.

Ms. Brinkmann, we'll hear from you.

Argument of Beth S. Brinkmann

Mr. Brinkmann: Mr. Chief Justice and may it please the Court:

The Attorney General acted well within the authority delegated by Congress in establishing the administrative framework governing deportation proceedings.

It's a reasonable interpretation and implementation of the act, and it warrants great deference.

The Attorney General struck a balance between several competing interests.

On the one hand, she promulgated regulations providing that an order... a deportation order becomes final upon dismissal of an appeal by the Board of Immigration.

That rule serves the interest of finality and expedition.

On the other hand, she authorized a narrow avenue of relief through motions to reopen or reconsider.

Those serve the interests in fair adjudication and permitting consideration of information that arises later.

The Attorney General did not provide that such motions affect the finality of deportation orders.

There's nothing in the Immigration and Nationality Act or the implementing regulations that requires the Attorney General to surrender the finality of deportation orders as a condition permitting such motions.

Unknown Speaker: I assume, just at this point you might answer... I think Justice Scalia brought up the fact that her regulation doesn't say anything about whether or not reconsideration tolls or makes it nonfinal, and the regulation is written in the same words as the Hobbs Act, as the Administrative Procedures Act, as interpreted by this Court to mean that you file a motion for reconsideration, it isn't final any longer, so what is it that leads you to say that's what her decision is?

That isn't what her decision says.

That isn't what the regulation says.

Rather, it uses the language that this Court has interpreted as meaning what Mr. Morrison said.

Mr. Brinkmann: Your Honor, we believe that the Locomotive Engineers addressed a different question.

The issue in that case was whether or not the Hobbs Act and Administrative Procedures Act required that a motion to reconsider not affect the finality of an agency order, and in that case the Court agreed with the Interstate Commerce Commission that those statutes did not require that, and they did not prevent an agency from taking another approach, which the Interstate Commerce Commission took, in that motions to reconsider could affect the finality and suspend that finality to stay the time for seeking judicial review.

Unknown Speaker: But I think Justice Breyer's point is that just as the Hobbs Act did not require it, so also the text of the Attorney General's regulations do not require it.

Mr. Brinkmann: Your Honor, we believe the--

Unknown Speaker: The language is virtually the same.

Mr. Brinkmann: --We believe that the Attorney General's interpretation of that regulation is reasonable.

There's nothing in the statute or the regulations that suggest that the filing of a motion undermines that finality.

To the contrary, the structure of the regulations bolsters and corroborates the Attorney General's interpretation.

Not only does the--

Unknown Speaker: You say 1) you infer that from the regulation that says you can deport the person immediately, that you don't have... that its final... one thing that is in the regulations is that it's final for purposes of putting the person on the boat or the plane.

Mr. Brinkmann: --Yes, Your Honor, and not only does that support the Attorney General's interpretation, there's another aspect of the regulations where the Attorney General provides that an alien does get an automatic stay during an administrative appeal from the immigration judge to the Board of Immigration Appeals, therefore evidencing that the Attorney General not providing such a stay means that... after dismissal of an appeal by the board means that that order is final.

We would also submit, Your Honor, that the regulation concerning motions to reopen and reconsider supports the Attorney General's interpretation in that it requires section 3.8 of 8 C.F.R., that when an alien files a motion to reopen or reconsider, the alien must specify whether that deportation order is... has been or is then pending judicial review, clearly anticipating that judicial review may... should have gone forward if the alien was intending to seek that.

Unknown Speaker: Ms. Brinkmann, exactly what interpretation of what section are we talking about when you say that the Attorney General's interpretation is entitled to great deference?

Mr. Brinkmann: Your Honor, we believe that the language is 8 C.F.R. 243.1, establishing that a deportation order becomes final upon dismissal.

Unknown Speaker: Where is that in your brief?

Mr. Brinkmann: That is on the very last page of the appendix to the Government's brief, Your Honor, page 10a.

Unknown Speaker: 243.1 on page 10a?

Mr. Brinkmann: Yes, Your Honor.

That establishes that an order of deportation... and it's down to about the sixth line... shall become final upon dismissal of an appeal by the board of Immigration Appeals.

Also, if the alien waives the time for seeking that administrative appeal, or that time expires, it becomes final, and the plain language of the statute, 1105a(a)(1) is that no later than 90 days after that date the alien must seek judicial review.

Unknown Speaker: Ms. Brinkmann, I'm not... I guess I don't have everything in front of me, but it is not my impression that in other agencies the mere fact that an order is not final in the sense that a petition for reconsideration may still be filed prevents that order from being enforced.

Is that the case in all other agencies?

I mean, you're appealing to the Justice Department's provision that says it can be enforced at once as demonstrating that this is different from the normal Hobbs Act or the normal APA situation.

Is it the case that in other agencies the orders are not enforceable as long as a petition for reconsideration or a petition for reopening can be filed?

Mr. Brinkmann: No, Your Honor, I believe there are agency actions which can be enforced--

Unknown Speaker: At once.

Mr. Brinkmann: --But there's a difference in that the deportation context, and I think this is what's so important in the recognition of the deference and the delegation of the authority Congress has given to the Attorney General, and the statute directly recognizes this.

There's a unique finality about deportation orders, because once they are enforced, in virtually... in every case the issue is then moot.

In recognition of that finality, Congress provided for an automatic stay pending judicial review except in the case of aggravated felons, in fact, but in the situation which is before the Court.

At the same time, however, Your Honor, Congress also recognized that there were important interests of recognition, and in the statute 1105a(a), which sets forth the exceptions to the Hobbs Act for judicial review in this context, that provides that the Attorney General can enforce a deportation order notwithstanding the availability of judicial review unless and until the alien in fact files for judicial review.

That's paragraph 8 of 1105a(a).

And also there are two other aspects of 1105a(a) that demonstrate Congress' interest in expedition of finality.

In subsection (c), Congress explained that after the enforcement of a deportation order and an alien departs, there is no further judicial review, so an alien can in fact be deported before he seeks judicial review and there's no further judicial review after that, again demonstrating that Congress' intent was that the alien should file a petition for judicial review to obtain an automatic stay.

Unknown Speaker: I wasn't talking about Congress' intent.

I was talking about the Attorney General's intent.

I thought you made the argument earlier that the meaning of the Attorney General's regulation is made clear by the fact that the Attorney General allows... that the regulations make it clear that the order can be enforced at once, even though there may later be a motion for reconsideration, and I'm saying I'm not sure that's different from what most other agencies do, that even though a motion for reconsideration is available, or a motion to reopen, the order is enforceable at once.

Mr. Brinkmann: I think that the way which we--

Unknown Speaker: I'm not talking about Congress' intent, now.

I'm talking about the Attorney General's regulations.

Mr. Brinkmann: --I understand, Your Honor.

I think what we rely on that is to show the reasonableness of the Attorney General's interpretation and that those regulations should be read to view the lack of an automatic stay as bolstering her finality regulation and definition, because in the instance when it's not final, when there's an administrative appeal from the immigration judge to the board, she does give an automatic stay, so in that sense I believe it bolsters the reasonableness of the finality definition.

Unknown Speaker: We're not interested... at the moment I'm not interested in the reasonableness of that interpretation, but is that the interpretation?

Look, you have language in the Hobbs Act which says an order when it's served is final, okay, it's final on the date when it's served, no matter whether there's a petition for reconsideration, and the court says, that language says it's final when it's served, but it isn't final if you file a petition for reconsideration.

That's what this Court said, irrespective, and this Court said it because the APA says exactly the same thing.

The APA says it's final, no matter whether there's a motion for reconsideration or not, and this Court says it's long been held that you file a motion for reconsideration, not final any more.

Now we have for the third time a regulation this time which says an order shall become final.

It says nothing about petitions for reconsideration, so why wouldn't this regulation mean exactly what similar language means everywhere else in the law, namely that it is final, but if you file a motion for reconsideration, it doesn't become final.

That I think is what's worrying me, and maybe some others.

Mr. Brinkmann: Well, Your Honor, we urge that Locomotive Engineers held that the language of the Hobbs Act and the APA does not require that motions to reconsider not affect finality, but it permits an agency to take another approach.

The cases cited by the Court in Locomotive Engineers themselves recognize that.

The first case cited, American Farm Lines, recognized the fact that you could also have an administrative ruling while judicial review is pending.

The very page cited by the Court in Locomotive Engineers explains that the concept of an indivisible jurisdiction where all of the proceedings must be in one tribunal or all in the other may fit some statutory schemes but it doesn't fit this one.

That's what the Court in American Farm Lines said, and that was one of the cases on which the Court in Locomotive Engineers relied, and that's what we submit here.

This is a different context.

Under Weinberger v. Salfi the Court has held that where Congress does not define finality of an agency order and delegates authority to the agency, that executive official has it well within her power to define that finality, and we submit that's what the Attorney General has done here, and that that deserves deference.

Unknown Speaker: With language that is the same as the language in the Hobbs Act.

I mean, it seems to me that since we had interpreted this language not to do what she wants to do, she might have used some different language.

Mr. Brinkmann: Your Honor, the Attorney General's language long predated the opinion in Locomotive Engineers, and the as the Court itself--

Unknown Speaker: Maybe it should have been changed after Locomotive Engineers.

Mr. Brinkmann: --Well, Your Honor, the Attorney General's whole regulatory framework and the other aspects of the regulations we pointed to bolster that interpretation of that plain language.

The Court itself acknowledged in Locomotive Engineers that the plain language of those provisions supports the position that we're advocating today.

It simply held that it did not prevent an agency from taking another approach.

Unknown Speaker: This is something that it seems to me the law should be pretty clear about before somebody gets put out of the country without the opportunity for judicial... don't you think it should be clear, and no doubt about it--

Mr. Brinkmann: Yes, Your Honor, we do.

Unknown Speaker: --and not regulation language which reads just like the statutory language which we said does not prohibit later seeking of judicial review?

I would feel very much snookered if I were an immigrant who read this regulation, read what the Supreme court said a similar statute held, and then I'm told I can't go to court.

That doesn't seem to me the way a... you know, an honorable country should operate.

Mr. Brinkmann: Your Honor, we believe that the reading of Locomotive Engineers puts a person on notice that the Federal agency that's administering the act, if that agency has the authority to define finality and the impact that motions to reconsider or reopen may or may not have, that's where the person should look.

Unknown Speaker: Yes, but the only specific language, I take it, in your argument that the Attorney General's regulation actually addresses to this issue is the regulation that provides that when an appeal is taken there should be a specification as to whether a motion for reconsideration or reopening is pending, is that correct?

Mr. Brinkmann: We believe that that's one regulation that bolsters the reading of 243.1.

Unknown Speaker: But it doesn't require it, does it?

Mr. Brinkmann: Well, Your Honor, we think that the plain language of the statute indicates that a--

Unknown Speaker: But if we assume that the plain language of the statute does not in and of itself answer the question, and you then turn to the regulation that says when you appeal you should say whether there's a motion to reopen, et cetera, pending, you would... I take it you would agree that that may be some evidence, but that is not an unequivocal statement for your position.

Do you agree with that?

Mr. Brinkmann: --It doesn't specify in so much words what the impact... that a motion has no impact on finality.

Unknown Speaker: Right.

It would be... technically it would be consistent, it could be consistent with Mr. Morrison's position.

Mr. Brinkmann: We don't believe so, Your Honor.

In Mr. Morrison's position, there would not be--

Unknown Speaker: I might file the motion for reopening and say, I think I'll take an appeal anyway, and I'm going to do it because I'm afraid the time may run against me.

Mr. Brinkmann: --But under Mr. Morrison's interpretation the Court is without jurisdiction to exercise review over that petition for judicial review, and that, Your Honor, is where we submit that the alien actually is caught in a trap, the trap that--

Unknown Speaker: Well, the trap that Justice Breyer described.

Mr. Brinkmann: --It's the trap that--

Unknown Speaker: He loses his guarantee and his only hope is habeas, in that case.

Mr. Brinkmann: --Well, Your Honor, also the trap of forever losing a right to judicial review if the--

Unknown Speaker: If he's wrong.

Mr. Brinkmann: --If he doesn't later submit yet another petition.

That was the trap that a litigant fell into before the recent amendment of the Federal Rule of Appellate Procedure 4, having... if an alien were to file a petition for judicial review based on the plain language of the statute and believe it timely, then file a motion to reopen on another matter, if that divests the court of jurisdiction over the petition and the alien doesn't later file yet another petition, he'll be forever barred of judicial review.

Unknown Speaker: I don't think Mr. Morrison took the position that it divests the court.

I didn't understand that to be his position.

No, he does not.

Mr. Brinkmann: I believe it's his position if the motion is filed first.

If the motion is filed first, there is no jurisdiction.

The courts have, in fact, continued to exercise jurisdiction over a petition for review notwithstanding the filing of a later motion as Mr. Morrison pointed out, but they've done that without any analysis.

The Ninth Circuit in Berroteran-Melendez explained that that was the practice without any analytic distinction between whether the motion was filed before or after the petition for judicial review, but that was the approach that the court of appeals took.

Unknown Speaker: Ms. Brinkmann, I guess we wouldn't have this case here if the BIA had acted more promptly on the motion to reconsider or reopen.

Why does it take 18 months to decide something like that?

Mr. Brinkmann: Your Honor, I think like any administration of an adjudicatory system some cases take longer, some cases are quicker.

There's nothing in the record to indicate a particular obstacle in this case.

I think it--

Unknown Speaker: That makes it all the worse, in a way.

If you were to say this was a particularly difficult case, or that a lot of new and very debatable points had been raised in the petition for rehearing or reconsideration, we might think of it as an exception, but if it's just routine that these things take 18 months, not the original decision but the petition for rehearing, I mean, I think it's amazing, frankly.

I don't know of any court in the country that takes anywhere near that long to pass on petitions for rehearing after they've once decided something.

Mr. Brinkmann: --Well, Your Honor, I believe that the priorities perhaps that the Board of Immigration Appeals follows, whether it's to address new cases that come up as opposed to frivolous motions to reopen or reconsider, that may very well be a priority that is taken, especially in the sense that the motions do not affect the finality of the deportation order and that judicial review of that can then be proceeding.

Unknown Speaker: What is it that the court of appeals should do under your view?

If the alien seeks judicial review of the BIA order within 90 days, and then files a motion to reopen or reconsider, what does the court of appeals do?

Mr. Brinkmann: Your Honor, we believe that it is in the discretion of the court of appeals as to how to exercise their jurisdiction.

A good example would be what happened in the litigation of the voodoo case which came before this Court.

In that case, the court of appeals had jurisdiction over the petition for judicial review within the time for seeking judicial review, yet after the petition.

There was also a motion to reopen filed.

The administrative process went ahead and resolved that.

Another petition for judicial review was filed and the court of appeals consolidated those two, as Congress now instructs all courts to do.

Unknown Speaker: It would seem to me that in order to honor the purpose of the statute the court of appeals, since they can't really take a look at every case to decide whether they're going to act on it, would enact... would be quite within its powers to say that we're not going to hear any of these petitions until the agency has acted, in which case you're right in the same position that Mr. Morrison's argument would take us in any event.

Mr. Brinkmann: Your Honor, we believe that would, if that was a judicial imposition of a requirement on the agency, that would run counter to the Court's reasoning in cases like Darby v. Cisneros, where the Court recognized where the Congress and the agency have not imposed an exhaustion requirement it's not for the Federal courts to impose that, either.

Unknown Speaker: But the Congress has a statute which says that the court of appeals shall consolidate, and if I were a judge on the court of appeals, I'd say we have so many hundreds of these cases in the Ninth Circuit, we don't have the resources to look at every one case by case, we'll simply wait in order to comply with the command of the Congress that we consolidate the review, in which case you're right where Mr. Morrison's position would put you anyway.

Mr. Brinkmann: We don't believe so, Your Honor.

The court certainly can exercise their jurisdiction on a case-by-case basis to decide whether or not there would be a reason to stay in a particular case.

Unknown Speaker: So now, under your view, the Ninth Circuit should do this before it orders briefing?

A panel of the court should look at the case to decide whether briefing should continue?

Mr. Brinkmann: No, Your Honor.

I would imagine in the real world a party would bring to the attention of the court of appeals some basis for staying the proceeding.

A motion for reopening or reconsideration may have nothing to do with the issue that's before the court of appeals.

For example, Your Honor, in Chadha, in Cardoza-Fonseca, all of those cases involved situations where there were changes in law that might give the alien another avenue for relief in the meantime during the pendency of the litigation, and the alien could go back and file a motion to reopen or reconsider on those grounds.

The Court expressly recognized that did not moot the judicial proceeding at that time for a couple of reasons.

1) the threshold issue of deportability would have to be resolved in any event, because those motions were based on requests for other types of discretionary relief.

Also, the initial relief that may have been requested... for example, asylum... the Court should go ahead and adjudicate that, because that may be a method, a relief that is more advantageous.

Unknown Speaker: When does the court of appeals know this, at oral argument on the appeal from the primary decision?

Mr. Brinkmann: Well, Your Honor--

Unknown Speaker: It decides then whether or not it should stay its consideration?

Mr. Brinkmann: --For example, in the case where an alien is proceeding through the court of appeals on an asylum request, and perhaps a legislative change comes up that could entitle the alien to a lesser form of relief, adjustment of status that might be to a temporary situation as in Cardoza-Fonseca, there's no reason for the... the court of appeals ruling will in no way be mooted or affected by that latter--

Unknown Speaker: But my point is, the court of appeals won't know this until it hears oral argument, so it proceeds to the oral argument stage, which seems to me to be no saving of resources, which is what Congress wanted to do under the statute.

Mr. Brinkmann: --Your Honor, we believe that Congress' intent in finality and expedition, particularly--

Unknown Speaker: Ms. Brinkmann, wouldn't it be just the court of appeals would get an application to stay the appeal that's been filed pending the resolution?

That's the way these things come up in courts of appeals, don't they?

If there's a later application affecting an earlier case, we rely on the parties to apply for a stay, and then you would get the problem that Mr. Morrison brought out of the court of appeals that has enough business already having to deal with all these extra stay applications.

Mr. Brinkmann: --Your Honor, we believe that that same argument could be made, for example, for imposing exhaustion requirements on agencies which the Court in Darby v. Cisneros held was not the role of the courts to impose that when the statute and the agency have not imposed that.

We believe, again, in the unique situation of deportation, where newly occurring events may become relevant, the parties agree that newly occurring events in a country to which an alien may be deported may become relevant, so there is always a potential for a motion to reopen or reconsider to be brought in the administrative process at any time during the period of judicial review.

Unknown Speaker: I wanted to ask your position on one thing that I think Mr. Morrison conceded, and I'm not sure he did.

That is, the notion that the Attorney General gave reopenings and reconsiderations and could do away with them.

But now that we have this 1105a whatever, isn't Congress assuming that there will be such applications, so whatever you might have done before, Congress is recognizing their existence.

How can you now take away the prospect of reopening or reconsideration?

Mr. Brinkmann: Your Honor, we agree that there is this recognition now in a statutory framework of the motions to reopen and reconsider which the Attorney General has long permitted.

We maintain, however, that under the Court's rationale in cases like Foti and Cheng Fan Kwok, the Court has recognized that it is within the Attorney General's authority to define the scope of deportation proceedings and, we would submit, the scope of motions to reopen and reconsider, and the Court has acknowledged that that may indeed impact the nature of judicial review, but under this scheme, that is in the nature of things in the authority that has been delegated to the Attorney General to structure that framework.

So while we believe that the statute does recognize the existence of motions to reopen and reconsider, we again believe that it's within the... well within the Attorney General's authority to structure the administrative framework to define finality and to interpret that as motions not affecting that finality.

Unknown Speaker: So you're staying with the position that, despite Congress' recognition that there are such things as reopening applications, that the Attorney General can say, we're going to forget the whole business, making the statute addressing nothing, because there's nothing for it to address.

Mr. Brinkmann: Your Honor, our argument certainly doesn't rest on the authority to completely abolish those motions, although there is no express requirement of that in the statute.

But we do believe, as in the situation where... in Foti where the Attorney General had altered the administrative scheme to require that applications for suspension of deportation now be brought into deportation proceedings, that meant that the judicial review provisions for deportation proceedings now were the sole remedy, the sole avenue of judicial review for suspension.

In that same way, we believe that it's well within the attorney general's discretion to set the limits on motions to reopen and reconsider.

Thank you, Your Honor.

Unknown Speaker: Thank you, Ms. Brinkmann.

Mr. Morrison, you have 4 minutes remaining.

Rebuttal of Alan B. Morrison

Mr. Morrison: Mr. Chief Justice, you began by asking Ms. Brinkmann what is it that we are being asked to construe, and what is it she's asking deference to.

Obviously, the regulations the Attorney General has issued can be construed and she can... the Attorney General may be entitled to some deference as to what her regulations mean.

I would agree with several members of the Court that these regulations don't say what the Government now says, but even if those regulations were explicit, in the end we are construing 1105 (a)(1), which is the provision for judicial review.

Ms. Brinkmann never mentioned the magic word Chevron here today, but I know of no case in which Chevron deference has been given to an administrative agency to construe away a right to judicial review.

The only case the Government cites is Weinberger v. Salfi, and that case involved the question of not whether, but when.

That is, the question was whether the Government could require you to take it later rather than earlier, a totally different situation than what we have here, and indeed this Court in Cheng Fan Kwok, in Darby, in Lampf, and in other cases has specifically rejected the view of the Government as to when judicial review is available, because the whole theory of Chevron is that you give review deference to the agency in order for it to construe the statute under which it is operating.

The "it" here is the court of appeals that's operating.

The court of appeals doesn't get controlled by the Government.

After all, we have judicial review for the very purpose of checking Government action, and it would be odd, indeed, for the Congress to have said, we will give the Government deference in construing the jurisdiction of the court of appeals in a way that will adversely affect those who want to challenge Government action.

Unknown Speaker: Oh, I thought we've done that in past.

I thought we have given deference to agencies in their determination of when their action is final.

Mr. Morrison: The only case in which that arises is Weinberger v. Salfi.

It was raised by the court sua sponte.

The Government did not object to jurisdiction, did not object and said that they did not oppose the case coming into court.

No party, and this is a pre-Chevron case, argued that the Government's interpretation of finality, which was what's at stake there, should not be given deference because the issue was raised by the court.

Unknown Speaker: Mr. Morrison, are you saying that the Hobbs Act couldn't be interpreted either way?

I mean, that was a case where the agency said, when we reconsider, it makes it nonfinal for purposes of review.

The ICC could not have said under that act, under our regime reconsideration does not stop the finality for purposes of review?

Ms. Brinkmann kept insist... was insistent that that act was permissive, not mandatory.

Mr. Morrison: I was interested to hear her statement that anyone could go read that decision and understand that it was permissive.

I read it the other way around, that it was an interpretation of the Hobbs Act as to when judicial review was available or not available.

In my view, it would be an incorrect interpretation of the Hobbs Act and of the statute at issue here to conclude the opposite of what I've urged, but even if one could conclude the contrary, it would not be because of the Attorney General's deference, to which the Attorney General is due.

Unknown Speaker: But if she's right about what the statute means, that under the statute an agency can decide for itself whether its application for reconsider will stay the finality of its order for purposes of review, if she's right about that, then we do, we should defer to the agency's implementation of the Hobbs Act, if it can be implemented either way.

Mr. Morrison: I do not believe that that statute can mean that.

It must mean it in light of the Administrative Procedure Act which establishes the general rule that if there is reconsideration or rehearing, then the agency's action is not final, and that the agency cannot decide to the contrary.

Unknown Speaker: I think you've answered the question, Mr. Morrison.

Mr. Morrison: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court number 93-1199, Stone versus Immigration Naturalization Service will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: This is a short statute that gives rise to a long opinion.

The case involves rather narrow and technical question but it's one of the considerable importance to aliens who were been subjected to the deportation process and to their lawyers members of the immigration bar.

The question is always rules to determining when the time starts running on the 90-day appeal period for review of the order of the Board of Immigration Appeals in the Courts of Appeals.

When the Board of Immigration Appeals affirms the deportation or the alien has two avenues for relief.

One is to appeal to the Court of Appeals and the other is to ask the agency to reconsider.

The problem in this case arises when it so often happens; the alien exercises his right to choose both avenues of relief.

The question is, does the filing of a motion to reconsider, stop the clock from running on the 90-day period for appealing to the Court of Appeals.

The various circuits were divided on this issue, this case comes from the Court of Appeals for the Sixth Judicial Circuit, which held that once the Board issues the deportation order, the 90-day period starts to run, in a later motion for reconsideration does not stop the 90-day period from running on the underlying order, we agree with the Sixth Circuit.

In an earlier case from our court called Locomotive Engineers versus the Interstate Commerce Commission.

We explained that the normal rule in agency practice is that the filing of a motion to reconsider makes the underlying order non-final.

So, the appeal time does not start to run on the underlying order until the denial of the motion to reconsider, and then the time starts to run on both orders at once.

The alien who is the petitioner in this case would like us to adopt that rule here.

We decline to do so, because in 1990 Congress enacted the provision with several sections designed to expedite the deportation process and it directed that Courts of Appeals to consolidate the appeal from the underlying order and the appeal from the denial of the motion to reconsider, if both were pending before it.

And for reason stated in the opinion we conclude that this provision reflex Congress' intent to depart from the rule of Locomotive Engineers and we conclude that the appeal time from the deportation order is not told or interrupted by the filing of a motion to reconsider.

Thus, we affirm the judgment of the Court of Appeals, Justice Breyer has filed a dissenting opinion and he has joined in that opinion by Justices O'Connor and Souter.