DADA v. MUKASEY

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Argument of Christopher J. Meade

Chief Justice Roberts: We'll hear argument next in case 06-1181, Dada v. Mukasey.

Mr. Meade.

Mr. Meade: Mr. Chief Justice, and may it please the Court: Congress has provided that certain aliens, including those with good moral character, are eligible for voluntary departure.

Congress has also provided that all aliens may file one motion to reopen raising new facts within 90 days.

The question is how to reconcile these two provisions.

The parties agree on two key points: First, the Government agrees that the statute can be read to preserve motions to reopen for voluntary departure recipients.

Second, the Government agrees that such aliens can file a motion to reopen; and if the immigration official happens to act quickly enough, the alien will receive a ruling.

But, under the Government's view, if the official does not act quickly enough, the alien is denied an adjudication.

Justice Ginsburg: Can we consider that in your case, given that the application to reopen was made when there were only two days left to run for the termination of the voluntary departure time... in other words, it was your delay, not the Government's, that made it impossible to decide this in the requisite time?

Mr. Meade: Yes, Justice Ginsburg, and I have two responses, one relating to this particular case as well as the cases in general.

But, as to this particular case, Mr. Dada found new counsel, which took a week; and in the remaining time he prepared a motion to reopen with 80 pages of exhibits including affidavits, five letters, medical documents, financial records including tax returns.

And that's why it took an additional two-and-a-half weeks to do the motion to reopen.

But, as a general matter, aliens file at different periods during the period.

For example, in the Eleventh Circuit case of Ugokwe the alien filed with 30 days left in the period, and the Government, the agency, didn't act in time.

But what happens in the agency is that motions to reopen are, in fact, decided relatively quickly... just not quickly enough.

Chief Justice Roberts: How many of those are... are granted?

Mr. Meade: How many--

Chief Justice Roberts: What percentage of motions to reopen are granted in favor of the alien?

Mr. Meade: --We've looked for that statistic, and we have not been able to find the statistic.

However, there are numerous cases presenting very sympathetic facts which show grants of motions to reopen.

Chief Justice Roberts: So how many... do you know how many are filed on an annual basis?

Mr. Meade: Yes, I do.

As a general matter, there are 10,000 motions to reopen filed, but that's for all aliens, for all removal proceedings.

Since voluntary departure is roughly 10 percent of all removals, we estimate that'S roughly a thousand motions to reopen filed by voluntary departure recipients.

Chief Justice Roberts: So there would be no reason not to file one of these if you were subject to voluntary... if you elected voluntary departure, and it extended your time to stay, right?

Seemingly, everybody would file one of these if we rule in your favor.

Mr. Meade: Not necessarily.

There are... the statute governs when a motion to reopen is proper, and the Attorney General determined, even under the previous statutory scheme--

Chief Justice Roberts: We're dealing with people who have already broken the law.

So you're saying they are likely to follow the statute that says only file a motion to reopen under these circumstances?

Mr. Meade: --Well, two responses: First, there are sanctions for frivolous filing under the immigration proceedings.

Second, the Attorney General, under the old regime that wasn't tightened... the Attorney General concluded that there was no pattern of abuse of motions to reopen.

And, third, going forward, this is not a risk because--

Justice Alito: If an alien has not been diligently pursuing his or her rights, you would argue the person was still entitled to equitable tolling if the alien files a motion to reopen?

Mr. Meade: --When you say that they're not diligently pursuing their rights, I am not clear--

Justice Alito: Isn't that generally a requirement for equitable tolling: A person has to have been diligently pursuing his rights?

Mr. Meade: --Generally, yes.

Justice Alito: But you don't advocate the adoption of that here.

You say if you file a petition... a motion to reopen, you get automatic equitable tolling.

Mr. Meade: Yes.

Not necessarily equitable tolling, but, yes, automatic tolling under the statute.

But to show quickly--

Justice Ginsburg: Why isn't... why isn't it fair to say: You have the short time frame by statute to leave the country if you've left in voluntary departure.

Yet, the Government has provided reopening for all aliens.

Okay.

Why isn't it reasonable to say that, by asking for reopening when you've gotten permission to voluntarily depart within "x" days, you are relinquishing your voluntary departure status?

Mr. Meade: --That--

Justice Ginsburg: Isn't that a perfect reconciliation of the two?

Mr. Meade: --Yes, Justice Ginsburg.

That's the option that the Government is proposing prospectively.

It is also something that my client requested at every stage of the proceedings before the Board, before the Fifth Circuit, and the cert petition, and in our opening brief.

That is one way to reconcile the two statutory provisions which the Government is proposing on an ongoing basis that will not apply to our client.

Justice Ginsburg: But you raised the question, as I remember, when you put it in the cert petition.

The Government advised against granting on that question and limiting it to the question of having it... having it both ways, keeping your voluntary departure and moving to reopen.

Mr. Meade: Yes, that's correct, Justice Ginsburg.

Chief Justice Roberts: Counsel, another way to reconcile the two that I think would be beneficial to your client, but I'm not sure it's open to us, is to address the Government's view that, when you voluntarily depart, your motion to reopen is automatically withdrawn.

That is, as I gather, set forth only in a regulation and not the statute.

Now, it seems to me that if I were... if I thought it important to reconcile the two, I would be much more concerned about that interpretation... that the motion to reopen is automatically withdrawn... than I would suggest we start incorporating equitable tolling rules and all of that.

But, I take it, the vulnerability of that regulation is probably beyond... beyond debate.

Mr. Meade: Well, that regulation is subject to litigation.

That would be another way to solve the problem as you suggest.

It would be--

Justice Souter: But it wasn't directly challenged here, was it?

Mr. Meade: --Excuse me?

Justice Souter: That regulation was not directly challenged in this case?

Mr. Meade: It was not directly challenged because the Fifth Circuit is one of the circuits that says that the motion... that regulation is valid.

Chief Justice Roberts: So if we don't address it here, there's going to be another case in a year or 18 months where that's going to be raised?

Mr. Meade: Your Honor, as to voluntary departure recipients, this Court can construe the statute to avoid the conflict here.

And, moving forward, the Government has a proposed solution which, if adopted, will resolve the question on an ongoing basis.

Some of the examples of the facts that arise in motions to reopen are seen in various cases.

For example, a child newly diagnosed with mental disabilities as in the Azarte case in the Ninth Circuit, a parent newly diagnosed with health problems as in the BIA case of Diaz Mucho--

Chief Justice Roberts: Well, in all these cases, if you think you have a good case on the motion to reopen, all you have to do is give up the benefits that you have availed yourself under voluntary departure, and then the motion to reopen is not automatically withdrawn.

Mr. Meade: --With respect, that's not an option to our client.

Our client tried to do that, but was not permitted.

Chief Justice Roberts: No, I mean he... you should not elect voluntary departure in the first place.

Mr. Meade: Well, the problem is because of the very nature of the motion to reopen.

A motion to reopen, by its very nature, is based on changed circumstances, circumstances that were not available at the original time of the hearing.

So a person could enter and accept voluntary departure at the time of the hearing and, because of circumstances that change, that, by definition, he or she could not have known about, is then in a bind when he wants to--

Chief Justice Roberts: What were those circumstances here?

Mr. Meade: --The circumstances here is that previous counsel had failed to submit an application and supporting evidence.

And under the BIA case law that's a proper vehicle for a motion to reopen.

Justice Ginsburg: But it existed?

You're not saying something that came up later?

What was the ground that the, in this case, that wasn't brought up by the first counsel?

Mr. Meade: It was a file for adjustment of status, an application for adjustment of status and supporting documents, as well as the supporting evidence showing that this was a bona fide marriage.

And the BIA has numerous cases which says that a motion to reopen of this type is a valid motion to reopen.

Now, of course, the agency didn't rule on whether the facts did or not... did or did not need a motion to reopen.

So that question isn't before the Court.

But the other cases show the various kinds of tracks that come up to establish a motion to reopen and why it's an important part of the immigration process.

Justice Souter: Mr. Meade, why was your client not allowed to withdraw the voluntary departure option, withdraw from it?

Mr. Meade: Justice Souter, that's unclear.

The agency didn't ask... didn't answer that in the first instance.

There has never been a reason given throughout the entire litigation, and now there is some irony--

Justice Souter: So all we have on the record is just an IJ's determination that he would not accept it?

Mr. Meade: --Well, it wasn't the IJ.

It was before the Board.

It was presented to the Board, and the Board's order only said he is ineligible for this relief because he has overstayed the voluntary departure period.

But there is some irony--

Justice Souter: But at the time he filed, he had not overstayed, because he filed on Friday afternoon, right?

Mr. Meade: --Yes.

Justice Souter: So... so maybe the point is we didn't have time to rule on it simply because he filed it on Friday afternoon and he had to leave on Sunday, and therefore, we should not take that as a determination that had he filed in time for timely action by the court he would have been denied.

Mr. Meade: The agency has never given a reason for why they did not accept the withdrawal, although there is some irony in the fact that the proposed solution going forward would give aliens exactly what my client asked for if the agency--

Justice Alito: If the voluntary withdrawal had been withdrawn successfully, he would then have been subject to the alternate order of removal?

Mr. Meade: --That's correct, Your Honor.

Justice Alito: And he could have been removed immediately?

Mr. Meade: That's correct.

Justice Alito: And that would have mooted the motion to reopen, wouldn't it?

Mr. Meade: It wouldn't have mooted the motion to reopen.

Motions to reopen are available to all aliens subject to a final order, including criminal aliens, including some accused of terrorism.

Justice Alito: Would it remain pending once he had left the United States?

Mr. Meade: Not once he had left the United States.

But all my client wants... all my client wanted at that time was to be placed in the same circumstance as all other aliens subject to a final ruling.

Justice Scalia: No, but he's not in the same circumstance.

I mean, he's made his choice.

He was offered voluntary departure, which had advantages.

He could arrange his affairs and go when he wanted within 60 days.

What he gave up was the ability to appeal the determination.

That doesn't seem to me as, as outrageous.

I mean, it happens all the time.

When a criminal defendant pleads to a lesser charge, he gives up the ability to appeal.

And that's what's going on here.

He has gotten the advantage of a voluntary departure and given up the ability to appeal.

I don't bleed for him.

It seems to me it's an option presented before him and he took it.

Mr. Meade: I have three responses, Justice Scalia.

First, I'll agree that the alien can file the motion to reopen.

The only question is whether it's going to be adjudicated in time.

Second, as for the question of the bargain, whether giving up appeals is part of the bargain, all parties agree that an alien who accepts voluntary departure can continue to appeal to the Board, to the courts of appeals.

The only, the only adjudicatory process that the government says that my client is not entitled to now is one motion to reopen.

Justice Scalia: Still and all, it's part of the deal.

Even better.

Even better.

He hasn't even given up all his appeals.

Mr. Meade: One final--

Justice Scalia: It's just, part of the deal he gave up this little ability to reopen, and that's... that's the choice he made when he accepted voluntary departure.

Mr. Meade: --One final response is that in the government's proposed regulation, an alien is permitted to file a motion to reopen notwithstanding having been granted voluntary departure, which indicates that the government itself does not think that the bargain includes... or that Congress did not intend the bargain to include a waiver of the one motion to reopen which all aliens are entitled to file.

Justice Ginsburg: Going back to the question that Justice Alito put to you, that he would then be, and you agree this is what you asked for first, like any other removable alien.

And Justice Alito asked you: Well, then he could be removed immediately, is that not so?

My understanding was, yes, that's so, but you can move for a stay of removal when you have a reopening pending.

Is that true?

Mr. Meade: Yes.

If you have a final order of removal, yes, you can file for a stay once you have a final order.

So my client is in a worse position.

Because he's under the voluntary departure grant, he cannot get the same ability for a stay that those who are subject to a final removal.

So the irony is--

Justice Kennedy: If you say that tolling is automatic, which I assume is your position, would it be possible under the statutes to say that tolling is not automatic but can be permitted in the discretion of the hearing officer?

Mr. Meade: --I--

Justice Kennedy: Or are we then just inventing something that's not in the statute at all?

Mr. Meade: --Well, the problem, Justice Kennedy, is that the agency would need to act within the short time period.

And--

Justice Kennedy: No.

All it needs to do is to say, we'll grant you an extension while we look at this.

Mr. Meade: --That's true, Justice Kennedy.

But that's essentially the same action that would be needed to decide the motion to reopen in the first place.

Motions to reopen are discretionary.

They go to the same Board member that had decided the original appeal.

So it does not take much time or effort for the agency to be able to decide these, as is reflected by the general time periods for adjudication.

For example, in the Dekoladeno case on the Fourth Circuit, the motion was decided in 23 days.

In the Sidikhouya case out of the Eighth Circuit--

Chief Justice Roberts: Well, presumably it doesn't take them much time because when someone elects voluntary departure they don't have to address it.

I mean, this would obviously increase the volume of motions to reopen.

As I said, I don't see know why anybody... why everybody wouldn't file one, because it extends their stay.

Mr. Meade: --It's a discretionary determination to the single Board member.

And the Board member could deny the motion to reopen, even when there's a prima facie case.

All they have to do is look to see if it... in the subset of cases that the agency, exercising its own discretion, where they agree that a motion to reopen is proper.

And all we're asking for in this case, not special procedures, not anything added to the motion to reopen process, but only the right to have--

Justice Breyer: Is there appeal?

I mean, what happens?

They file a motion to reopen, denied.

Now, can they appeal that?

Mr. Meade: --Yes.

Justice Breyer: Okay.

And how much time does that take?

Mr. Meade: Well, the denial of a motion to reopen, at that point there would be a final order in effect.

Justice Breyer: Right.

But how... do they then appeal the motion to... they appeal the motion... the denial of the motion to reopen or how long... where do they go?

Do they have... this is the Board, so they go right to the court of appeals?

Mr. Meade: That's correct.

Justice Breyer: And how long do those take on average?

Mr. Meade: One difference, though, between petitions for review and motions to reopen is that petitions for review can be decided from outside the country under the 1996 amendments.

And motions to reopen under the agency's regulations, cannot.

So the problem is that there is no ability for an alien--

Justice Breyer: I'm not interested in the problem.

I'm interested in how much added time it actually means.

So let's go... if you win, how much additional time in a typical case would the alien have before he has to leave?

Mr. Meade: --Petitions for review take longer.

According to the agency's current regulations, they take approximately, I believe, 13 months or so is what the--

Justice Breyer: And then, and then do you in addition ask for cert or is it not in addition?

Are you including that within the 13 months?

Mr. Meade: --Your Honor, I don't have those exact statistics.

Justice Breyer: Or would you just guess on the basis of your experience?

I'm not holding you to it.

Mr. Meade: There might be cases where alien seek cert as well.

But for the most part--

Justice Breyer: All right.

What I'm wondering here, and this is because I see two contrary things, if for to you win it means that you are adding an average of, say, 400 days to a stay where Congress said we want you to stay no more than 60 days or 120?

That's pretty hard for me to reconcile, to tell you the truth.

Mr. Meade: --Well, one of the answers on that question on the petition for review front is exactly what the government has proposed in its rule going forward, which is that an alien who has voluntary departure can file a petition for review, but by doing so the voluntary departure grant terminates and they're in the same position as other aliens, on the same level playing as other aliens.

That's the solution being proposed by the government going forward, and as to the petition for review hypothetical that would also apply.

That would just put my client in the same position as all other aliens, including criminal aliens.

Justice Stevens: I'm not sure I understand it.

Are you asking for automatic tolling just until the motion to reopen is decided or until the motion is decided and also the appeal process has run?

Mr. Meade: Just for the motion, just for the time that the motion to reopen is decided.

Justice Scalia: That's what I thought.

Justice Breyer: Well then, that's the answer to my question.

Justice Scalia: But in your discussion with Justice Breyer you seemed to be saying that he can hang around right through the appeal.

Mr. Meade: Thank you for the correction, Justice Scalia.

Chief Justice Roberts: Well, is your position that the right to appeal is taken away, just as under the current regime the motion to reopen is taken away?

Mr. Meade: No, Chief Justice Roberts.

The difference is that petitions for review can be adjudicated from outside the country, so whether the alien is here or abroad he can get an adjudication of his motion... of his petition for review, and that was a change under the 1996 act.

The problem for motions to reopen is that an alien cannot receive an adjudication at all.

He can't stay.

He can't go.

There's no way for those new facts.

Justice Scalia: That's by regulation, though, that he can't, he cannot pursue that from out of the country.

Mr. Meade: Yes, that's true.

That is not... that is by regulation, although that regulation applies to all motions to reopen, not just for the subset of motions to reopen or voluntary departure recipients.

Justice Kennedy: If your client or some other client, assuming the government wins in this case, leaves within the 60-day period and the petition for rehearing is forwarded, can he take all these affidavits and apply for an adjustment of status, or is that much longer?

Mr. Meade: No.

The problem is that for an alien, for many aliens covered by voluntary departure, once they leave the country they are subject to various unlawful presence bars.

So by leaving the country these bars are triggered and they cannot get the same relief from outside the country.

Justice Kennedy: Even with voluntary departure?

Mr. Meade: Even with voluntary departure.

Leaving the country triggers these bars.

Once you're outside the country you cannot reapply for admission for in some cases up to 10 years, and that precludes the ability to leave the country and seek the relief, even if you have a marriage to a United States citizen, even if there are extreme circumstances in a particular case that need to be addressed and that would be addressed under a motion to reopen.

Chief Justice Roberts: Do you have to argue that the... my understanding is that once the... let's say it's the government's proposed regulation and the motion for... or the voluntary departure is withdrawn to enable you to consider the motion to reopen.

They can proceed with deportation at that time, correct?

Mr. Meade: Absolutely.

Chief Justice Roberts: So you... you almost have to be arguing that the motion to reopen tolls the time for deportation as well, right?

Mr. Meade: No.

We just want... under the, under the question... under the government's proposed rule or under the--

Chief Justice Roberts: Well, under your position, I guess, is what your position is on that.

Mr. Meade: --Right.

Well, the tolling solution, the tolling construction, would permit tolling during the voluntary departure period and during the voluntary departure period there is no final order in effect.

So yes, it would toll the time for leaving the country.

Chief Justice Roberts: In other words, the government cannot enter a deportation order during a voluntary departure period.

Mr. Meade: Yes.

That's governed by the agency's own regulations that say that there's no... the ultimate order of deportation does not go into effect until an overstay of a voluntary departure period.

One thing that is--

Justice Scalia: So I'm not following this.

I thought the assumption was we're going to be using the government's new proposed system, in which the acceptance of voluntary departure is eliminated when you file a reopening petition, right.

So can the government then proceed to deport you involuntarily or is that also going to be stayed until, until completion of the reopening petition?

Mr. Meade: --I'm sorry, Justice Scalia.

You're absolutely right.

I was addressing the tolling construction with Mr. Chief Justice.

But as to the government's proposed rule under the proposed rule and what my client asks for, the time... the alien would be automatically subject to a final order and could be deported involuntarily so long as the alien did not get and obtain a stay of deportation from the agency or the court, so yes.

Justice Scalia: And that, that involuntary deportation would effectively cancel the, the petition for reopening, right?

Mr. Meade: If the agency acted quickly enough and involuntarily deported someone within that time--

Justice Scalia: Why are you willing to leave the involuntary deportees in that position, whereas you're not willing to leave the voluntary deportees in that position, that their reopening petition just vanishes?

Why is it any fairer for the involuntary deportees than for the voluntary?

In fact it's probably fairer for the voluntary because they made their choice.

Mr. Meade: --Your Honor, I agree with you that that regulation is problematic, although the Court does not need to address it in this case.

With the court's permission, I would like to reserve the balance of my time.

Argument of Edwin S. Kneedler

Chief Justice Roberts: Thank you, Mr. Meade.

Mr. Kneedler.

Mr. Kneedler: Mr. Chief Justice and may it please the Court: The filing of a motion to reopen does not automatically suspend the obligation of an alien to leave the United States within the time that was specified in the Board's order granting permission to depart voluntarily.

The grant of voluntary departure reflects an exchange of benefits between the government and the alien and Petitioner's automatic tolling rule would greatly subvert that reciprocal arrangement by giving the alien the unilateral and automatic ability to extend the substantive terms of the immigration relief the--

Justice Scalia: Mr. Kneedler, I think, I think that your, your opposing counsel gave a good answer to that.

I also thought it was a quid pro quo, but it's a very strange quid pro quo.

I could understand the government saying, look, if you accept voluntary departure your reopening is dead; you have to choose between asking for reopening or voluntary departure.

But that's not the quid pro quo you're saying that the government is adopting.

The quid pro quo is if you accept voluntary departure you roll the dice as to whether your reopening petition will be decided in time.

It isn't dead.

It's still there, but you just have to hope that it will be decided before you get deported.

Mr. Kneedler: --Well, let me make one--

Chief Justice Roberts: That's a very strange statutory quid pro quo, it seems to me.

Mr. Kneedler: --Let me make one point clear at the outset.

Petitioner's motion to reopen was not dismissed because he was not able to file one.

It was denied because he was not eligible for the underlying substantive relief that he requested in this motion.

Overstaying a voluntary departure period does not, for example, bar an alien from obtaining asylum or withholding of removal on a motion to reopen.

It's only the particular substantive form of relief that he requested in his motion to reopen that is at issue, and that was denied.

Justice Souter: Well, that may be.

But Congress passed a statute that grants a statutory right to file a motion to reopen no matter what the relief is.

And the thing that seems strange to me, I guess to carry Justice Scalia's question one step further, is what seems strange to me is that Congress would have granted that right in effect across the board, regardless of what the reason for the reopening might be and yet would have done so knowing that the, that the time for adjudication before the IJ is likely to take longer than the period of the, prior to the moment of required departure.

It sounds as though Congress on your view would be... would have been giving a right to reopen that in practical terms in most cases will avail the alien absolutely nothing because he'll have to get out before there can be an adjudication.

Mr. Kneedler: With all respect, that's not correct.

Justice Souter: Why?

Mr. Kneedler: Again, both prior to 1996 and after 1996 Congress specified that an alien who overstays the voluntary departure period is ineligible for three forms of discretionary relief.

Now it's voluntary departure, cancellation or removal, or adjustment of status.

That was true both beforehand and afterhand.

Before 1996, there was no statutory limitation on the time for either a motion to reopen or voluntary departure.

Congress was concerned about abuses on both of those fronts, and what it did in 1996 was to compress the voluntary departure time for 60 days because it was concerned about how long the agency was allowing agents... aliens to remain in the country under orders of voluntary departure.

And what it did with respect to motions to reopen was very modest.

It just put in statutory form a limitation that the agency had put in place pursuant to a statutory directive to place time and number limitations on motions to reopen because of Congress's concern about abuse.

Justice Souter: Okay, but isn't the question in this case whether what Congress did was as modest as you say?

Because if it is as modest as you say, then in at least a substantial category of cases in which a motion to reopen will be filed, it will in fact be no time in the real world to act on that motion before the voluntary departure date.

And the question is did Congress really intend a right to reopen that is as modest as that.

Mr. Kneedler: Well--

Justice Souter: And it seems strange that it would have.

Mr. Kneedler: --Two responses to that.

With respect to the voluntary departure, Congress anticipated that the alien was going to leave under the order of voluntary departure, not remain here.

And prior to 1996, just to--

Justice Souter: Well, it was... was the regulation... was the current regulation in place at the time of the '96 Act, that the... that the departure of the alien, whatever the term is, waives the motion to--

Mr. Kneedler: --That regulation has been a fundamental part of motions to reopen going back at least until the 1960s.

Justice Souter: --So, we assume that Congress knew that.

Mr. Kneedler: Yes.

Yes, we do have.

And that's part of the arrangement.

The only thing... and that regulation was repromulgated as part of General Motion to Reopen Regulation in 1995.

Justice Souter: Okay, then Congress knew at the time of the '96 Act that, if in fact the motion to reopen was filed in the normal course, it probably couldn't be heard prior to the date at which (a) the alien either will overstay and be in trouble for that or (b) will have departed and, under the existing regulatory regime, have forfeited his right to reopen.

And it's the strangeness that Congress would want... would have wanted to extend the right to reopen to a statutory level under these circumstances unless it contemplated some kind of a tolling scheme that would avoid this sort of Kafka-esque result.

Mr. Kneedler: No.

Again, if I may, the... what Congress had in mind with the deal of granting voluntary departure was it greatly constricted the time to leave.

You have to leave in 60 days, and if you don't leave in 60 days, you're not going to get voluntary departure adjustment of status or cancellation or removal.

It didn't affect the eligibility for other substantive relief that an alien might file for in a motion to reopen, such as asylum, such as if he has new evidence going to the ground of removal.

But Congress was particularly concerned not to allow these three forms of discretionary relief to remain available.

And so I think Congress necessarily would have been unconcerned about whether, if an alien did file a motion to reopen within that greatly constricted 60-day period... in fact, in this case the Board gave 30 days... Congress wasn't concerned about preserving the underlying substantive eligibility for those forms of discretionary relief, because it made that part of the deal, that alien was giving up if he left... if he didn't leave the country, he was giving up that.

Those were lesser order forms of relief that Congress was making available, but it did did not take away, for example, the right to apply for asylum or withholding.

Justice Ginsburg: Mr. Kneedler, why did the Government advise this Court not to grant cert on question number 1, which was: I want to apply to reopen and simultaneously, I want to withdraw my voluntary departure and be just like any other removable alien, take my chances just like anyone else?

The Government said don't present that... Court, don't consider that question.

Why?

Mr. Kneedler: Because that had not been... led to widespread litigation in the courts.

This automatic tolling rule is... was what we were fundamentally concerned about.

In fact, we told the Court not to take the case at all because the new regulations were under consideration.

But that particular provision... issue has not generated that much litigation.

This automatic tolling rule has, and more than--

Justice Ginsburg: And it seems that this litigant said, number one, I don't want to take advantage of the status of I have to get out, but I can do so voluntarily.

The first thing I want to do is to move to reopen, withdraw my voluntary departure.

And then the second thing was, if I can't do that, please extend my voluntary departure time while I move to reopen.

It seems that this litigant is being put in a bind by not allowing this Court to consider what was the alien's first preference, that is, to withdraw the voluntary departure.

Mr. Kneedler: --But the Court rewrote the question presented so as not to... not to address that, so I think it's not before the Court right here.

But... but beyond that, the deal, the arrangement... the Attorney General has a lot of discretion how to implement the voluntary departure provision.

In fact, he has the authority to eliminate voluntary departure for additional categories of people who are not eligible under the statute itself.

So whether to--

Justice Alito: What is the basis for the rule that an alien can't withdraw, can't seek to withdraw a request for voluntary departure?

Mr. Kneedler: --The regulations do not provide for it, and it's inconsistent with the--

Justice Alito: There is no regulation that prohibits it.

Is that right?

Mr. Kneedler: --As far as I'm aware there is no regulation that prohibits it, but the order is a grant of voluntary departure, and the Board of Immigration Appeals order says you're granted permission to depart voluntarily within 30 days; if you do not, the following consequences flow from that.

Nothing in the Board's order would allow the alien to avoid those consequences by saying on the 28th day, after all I don't want to do that.

And this matter of implementing the voluntary departure agreement is part of a general scheme of a quid pro quo between the alien and the United States.

The voluntary departure is granted under circumstances where the alien doesn't have that option.

So unilaterally... allowing the alien unilaterally to do that now is not provided for.

Now, that doesn't... that doesn't take away from the Attorney General's discretionary authority in implementing the Act to provide for that, which is what he has proposed in the new rule.

But this case has to be decided under the... under the rules that are now in effect.

Justice Breyer: I'm having a lot of trouble understanding the case, because it's so complicated.

If you... could you track it through for a minute?

I mean, as I understand this, this probably doesn't concern people who want to voluntarily depart before their case is finished, right?

Where they don't reopen because there is nothing to reopen?

Mr. Kneedler: Right, but the people--

Justice Breyer: Okay.

So we're at a person who is before the Board or before the hearing examiner and he wants to... he is now got a final order against him.

Mr. Kneedler: --Yes.

Justice Breyer: Okay.

So now you say to him I'll tell you what we'll do to you: You leave, go, good-bye, and we'll let you pursue your appeals anyway, but from out of the country.

That's true?

Just tell me if I'm getting it right.

Mr. Kneedler: Well--

Justice Breyer: I'm not talking about reopening.

I'm talking about appeals.

Mr. Kneedler: --Well, if he... if he leaves the country, I believe he can still appeal to the BIA.

Justice Breyer: And can you go to court, too?

Mr. Kneedler: Yes.

Justice Breyer, under the statutory review provisions, you can... you can petition for review and leave the country and still have--

Justice Breyer: Okay.

So no problem.

You say go, good-bye, and we'll give you some good deals here if you'll really go, but you pursue your appeals.

Justice Stevens: Does not he lose his right to have the motion to reopen ruled upon?

Justice Breyer: That's what I'm asking, I'm getting at.

Mr. Kneedler: --If I could just correct.

I'm incorrect that you can have your appeal adjudicated if you leave the country.

I--

Justice Breyer: I'm not talking about motions to reopen at all.

Mr. Kneedler: --No, I understand that.

The appeal from the immigration judge to the Board of Immigration Appeals.

Justice Breyer: Okay.

But you can go to there?

You go to the BIA?

Mr. Kneedler: That's where you go after--

Justice Breyer: Okay.

Now, why wouldn't you treat--

Justice Scalia: I don't understand your answer.

You said you can or you can't from out of the country?

Mr. Kneedler: --I've been informed that you... that if you leave the country, you cannot pursue.

Justice Breyer: --Cannot.

Okay.

But you can go to the BIA?

Leaving the country?

Mr. Kneedler: No, you can't... you can't go to the BIA.

Justice Breyer: You can't go anywhere.

Mr. Kneedler: You can't... you cannot go to the BIA.

Justice Breyer: So you lose all your appeals, not just your motion-to-reopen appeals if you leave the country?

Mr. Kneedler: Your administrative appeals.

You do not... the statute has been amended to allow you to petition for review in a court if you leave the country.

Justice Breyer: Oh.

Okay.

So you say--

Mr. Kneedler: Yes.

Which was a change from what was before this Court in Stone.

In 1996 Congress amended the Act to allow an alien to continue to challenge the final removal order after he leaves the country in court.

Justice Souter: Yes, but you can't get to court if you haven't been to the BIA, right?

Mr. Kneedler: I believe... I believe that's true unless--

Justice Souter: And, again, we are talking about a short period of time, like 30 days.

In practical terms there's no way he is going to get through the BIA in 30 days.

And, therefore, when he leaves the country, he cannot then try to get or complete his BIA review, and he therefore will have no chance to get into court, right?

Mr. Kneedler: --I think that... I think that would be correct unless... I don't think this has ever come up that I'm aware of, about whether you could go to court from an immigration judge's decision where you've left the country and therefore can't appeal to the BIA.

Justice Souter: There's no reason to assume that you could.

Mr. Kneedler: I just don't know the answer... I just don't know the answer to that, because I'm not sure that scenario has come up, because usually, if somebody wants to contest, they're not going to leave the country before they have to, and if you appeal from the immigration judge to the Board of Immigration Appeals, that suspends the finality of the order of removal or the order of voluntary departure that the immigration judge has entered.

So if you appeal... if you want to stay in the country, all you have to do is file an automatic appeal with the Board of Immigration Appeals and that suspends the finality of the departure time.

Justice Souter: And by doing that you do preserve your right to appeal; and you will preserve your... will you also preserve your right to go to court if you lose in front of the BIA.

Mr. Kneedler: Yes.

Yes.

You do.

Justice Souter: Okay.

We got that straight.

Mr. Kneedler: Yes.

I'm sorry.

I'm not--

Justice Scalia: So why, if you want to have a petition for reopening, why don't you just file an appeal and then file a petition for reopening and the appeal will enable you to stay in the country until your... your petition for reopening is--

Mr. Kneedler: --If you appeal to the Board of Immigration Appeals, a motion to reopen arises only after the Board has issued a final order on your appeal.

So if you appeal to the Board of Immigration Appeals, if the Board rejects your claim on the merit, and reinstates the voluntary departure period to allow you to enter again--

Justice Scalia: --You're appealing the immigration judge's decision.

Mr. Kneedler: --Right.

Justice Scalia: The immigration judge's decision, you're appealing that to the BIA.

Mr. Kneedler: Right.

Justice Scalia: And that... that enables you to stay in the country--

Mr. Kneedler: Yes.

Until the--

Justice Scalia: --And at the same time you file a petition to reopen the... the administrative law judge's--

Mr. Kneedler: --With the immigration judge.

Justice Scalia: --Yes.

Mr. Kneedler: I... I suppose you could do that, but the... but the appeal... it would be like a motion to reopen in the district court while you've got an appeal to the... to the BIA.

I... I think once the appeal goes to the Board... this case involves motions to reopen filed with the Board of Immigration Appeals, not with the immigration judge, and so... the alien here conceded his deportability, sought a continuance, and that was denied.

He had no other substantive grounds of relief.

He asked for voluntary departure.

That was granted.

He took an appeal to the BIA arguing he should have been granted a continuance; the Board affirmed; reinstated a 30-day departure period; and then he wanted to seek reopening.

And one question that Justice Breyer asked about, what if reopening is denied would the automatic tolling rule continue?

I suppose the alien could file a motion to reconsider the denial of the motion to reopen, and if you had an automatic tolling rule, it would... it would last as long as it took the Board to act on the motion to reopen, which is... which 60, 90, 120 days.

In this past Fiscal Year the Board on motions to reopen resolved I think only about 55 percent of those within 90 days.

The Board has a huge backlog, and we're talking... and so we are talking about the very kind of abuse of the immigration system that this Court was concerned about--

Justice Kennedy: May I ask one question?

And I'm not sure the progression in which Justice Breyer was going to begin.

I take it that the motion to reopen has... shows new evidence, new factors, new circumstances; and that would be unavailable on the appeal, because the record hasn't been supplemented.

Or am I wrong about that?

Mr. Kneedler: --That... that's true.

It has--

Justice Kennedy: While you have an appeal... while you have an appeal from what was in the record.

Mr. Kneedler: --Right, although--

Justice Kennedy: If you don't have the motion to reopen then the... then the new material is not subject to the appeal, or am I wrong?

Mr. Kneedler: --No.

It's not subject to the appeal as such but the Board procedures take account of developments that happen while the case is on appeal, which is that you can file with the Board while your appeal is pending and ask for a motion to remand on the ground that new evidence has come up.

For example, in the case of adjustment of status, where... the alien's wife has filed a petition for immediate relative status to let the alien get a visa, if while the case is pending on appeal that petition has been granted, then... then it would... then all the alien has to do is file a motion with the Board and say there is new information; please remand it back to the immigration judge.

So a lot of times what has happened is... maybe intervening things have happened but the alien doesn't do anything about it during the year that the appeal is pending with the Board of Immigration Appeals; then there is a final order and the alien rushes in with the... with the new information at that point, where if you had only brought it to the attention of the Board while the appeal was pending, it could have been remanded.

Justice Breyer: --So your basic is... don't tell me if I'm right if I'm wrong, please.

The... the... what I'm thinking your basic problem or position is and why you've got into this, is because you think any really meritorious case where there should be reopening will be pointed out to the Board before there is a final order in effect and before voluntary departure becomes an issue?

Mr. Kneedler: That... that--

Justice Breyer: And if we decide against you, then you're thinking, well, what will happen in every case is after there is a final order, the alien will move for a motion to reopen because he will get a few extra days.

Mr. Kneedler: --It's more than a few extra days.

Justice Breyer: He gets a... several--

Mr. Kneedler: It's an automatic tolling period.

Justice Breyer: --Have I got it right, what your point is?

Mr. Kneedler: Yes.

That is correct and I... and I think it's fair to say if you're talking about changed circumstances or new evidence that arises after the IJ has rendered his decision, that's a period that might be a year; it might be a year and a half.

New developments or changed circumstances are far more likely to have happened during that period of time than they would during a 30-day period of voluntary departure that... that the Board reinstates at the conclusion of the appeal.

So an alien in this position who has been granted voluntary departure and knows that a motion to reopen may not be a realistic option, if he wants to seek adjustment of status or cancellation of removal, the solution to that is to be alert and attentive and file something with the Board, if there are in fact--

Justice Ginsburg: Why isn't the solution to withdraw, relinquish the voluntary departure?

Mr. Kneedler: --That would be... that would be one... as the Attorney General said in his proposed regulations, that would be one way to administer the program, but the Act does not compel that.

The Act does not compel--

Chief Justice Roberts: If you do that, the alien is still subject to deportation, right?

Mr. Kneedler: --Yes.

The alien is still subject to deportation.

Justice Ginsburg: With the provision that he can get a stay.

Mr. Kneedler: Yes, he could get... he could get a stay of removal, and the same... same thing is true here, if the... if the alien remains in the country, his voluntary departure period expires, he could file for a stay of removal with the Board or he could file for a stay of removal with the court of appeals if he wants to file a petition.

Justice Ginsburg: But then because he would then be back... if he stays here after the period is run, then he has relinquished the voluntary departure.

He is like any removable--

Mr. Kneedler: Right.

Right.

But... but like any person, he could file a motion for a stay with the court of appeals to prevent his deportation.

Justice Ginsburg: --But not to stay... but he would not be hanging on to his voluntary departure.

That's gone.

Mr. Kneedler: No, that... that is correct.

Justice Souter: Is there any reason he could not unilaterally relinquish the voluntary departure status as distinct from having to get approval from the Board or bureaucrat?

Mr. Kneedler: Well, as I say, the way that... the Board's order grants him permission to voluntary depart and says the following consequences will attach if you do not.

Nothing in the Board's order allows him to withdraw.

It grants him that permission.

Justice Souter: Well, I know it doesn't... it doesn't address the issue, and my question is--

Mr. Kneedler: Well, I think it probably forecloses it.

Justice Souter: --Why?

Mr. Kneedler: Because it's the... it's the content of the Board's order that... that says you have 60 days to depart and if you do not, the following consequences attach.

Justice Souter: No, but the Board is saying, look, I'm granting your request... we are granting your request for a voluntary departure status and there are certain consequences that that status carries.

He is saying, on my hypothesis, I relinquish that status.

Why are conditions that attach when he has the status an indication that he cannot voluntarily relinquish that status without further action by the Board?

Mr. Kneedler: I... I... the statute and regulations just don't provide for it.

Justice Breyer: Well, if they don't provide for it, and they don't say you can't do it, why isn't it arbitrary not to let him do it?

I mean... what... if it's... if it's arbitrary--

Mr. Kneedler: He... he requested it at the outset.

The case has proceeded on the sense that that is... that that is the arrangement, that... that the reciprocal benefits and burdens that the Government and the alien have undertaken--

Justice Breyer: --It sounds almost arbitrary to say to a person, look, if you think you have some new evidence and want to reopen, do it.

But Congress wanted you to get out of here in respect to this 60 days, so you have to give up that.

You're not getting those benefits.

Now, it's a tough bargain, but it seems reasonable.

Mr. Kneedler: --Yes, I--

Justice Breyer: What I don't see is to say once you ask for this you can never get status adjustment.

Mr. Kneedler: --Yes.

I'm not standing here defending the contrary position as an overarching policy matter, because after all the Attorney General's proposed regulations provide for that.

My--

Justice Breyer: So why not apply them to this person?

Mr. Kneedler: --As they are now drafted they would apply prospectively.

But my only point is that voluntary departure and motions to reopen are administered under the statute and the regulations and the BIA orders that are entered under the current regulatory framework, which has a different sort of deal between the alien and the government in mind, and that--

Justice Ginsburg: Which you say... you say that under the current regime, the voluntary departure application, granted, is irrevocable.

That's--

Mr. Kneedler: --I think essentially... I think essentially yes.

I--

Justice Ginsburg: --The regulations don't say that.

The regulations are just blank.

It doesn't say and if you do this it's irrevocable.

Mr. Kneedler: --Yes.

And I want to qualify my answer in a further respect... that regulations with respect to voluntary departure being granted by the Board don't say anything like that.

But I am informed by the executive office of immigration review that if the immigration judge grants voluntary departure and the alien appeals to the Board, the ordinary course would be for the Board to reinstate voluntary departure if it rejects the alien's appeal.

But if on appeal the alien requests that voluntary departure not be reinstated once the Board's order is entered, then the Board will omit that from its final order of removal.

But Petitioner here did not request on his appeal to the Board that the Board not reinstate a... order a voluntary departure if it had affirmed on the merits.

And so the Board went forward on the assumption that the alien had requested voluntary departure, entered an order on that assumption, and once it's entered, it's a final order that would require some amendment of the order, in order to... in order to be changed under the current regime.

Justice Ginsburg: But the order didn't say he couldn't withdraw?

Mr. Kneedler: No, it didn't.

Justice Breyer: So what about this?

I'm just trying this out.

You don't have to respond if you don't want to.

But you say, look, the AG in his rules here, really tried to reconcile the two interests that we talked about in our prior conversation.

Now hypothetically, I suppose you say that was a reasonable way of going about this, and we remand for consideration about whether this prior situation that you couldn't do that was arbitrary, capricious, abuse of discretion, or your failure to apply it retroactively to a certain class of people was arbitrary, capricious, abusive discretion?

Mr. Kneedler: I think... I think if the Court wants to get into the question of whether he could withdraw it, the proper thing for the Court to do would be to reject the Petitioner's argument that there is an automatic tolling rule, because that's fundamentally inconsistent with Congress' deliberate intention to impose a short deadline and not let the agency extend that, but to remand to the Board of Immigration Appeals for an explanation as to whether he could withdraw his request for voluntary departure.

I don't think the Court should decide that question on its own.

I think that should be remanded to the Board.

If in the meantime the Attorney General issues regulations that provide for withdrawal of the request, maybe because his case would be back before the Board, those new regulations could be applied.

But whether that... the alien should be allowed to do that is fundamentally a question for the Attorney General in the first instance.

Justice Kennedy: In one of your... in one of your arguments earlier you said the whole idea of voluntary departure is to expedite the proceedings and so forth.

I assume that voluntary departure is never elected as an option before the Board rules.

Mr. Kneedler: It is--

Justice Kennedy: In other words, it... or am I wrong?

Mr. Kneedler: --No.

It was elected before the immigration judge.

That's where you request it.

If the immigration judge rejects your arguments against removability, grants you voluntary departure--

Justice Kennedy: Yes, but the removal... at the outset, you don't elect voluntary departure at the outset of the hearing?

Mr. Kneedler: --You can.

And you can get 120 days of time to depart.

You can do that.

People who don't want to contest the removability at all--

Justice Kennedy: No, no, no.

I mean in a contested case.

Mr. Kneedler: --Right.

In the contested cases, you would ask for that at the conclusion of the hearing before the immigration judge.

That gets suspended if you appeal to the BIA because the order is not final.

It doesn't become final until the Board of Immigration Appeals affirms.

Chief Justice Roberts: Mr. Kneedler, do you know what percentage of these motions to reopen are granted?

Mr. Kneedler: I do not.

I asked that question, and I do not know the answer to that.

I would like to come back to the fundamental automatic tolling rule that... the fundamental inconsistency of that automatic tolling rule with what Congress did in 1996, because it shortened to 60 days the time limit in which an alien can depart.

It also eliminated a prior exception that had been the law that allowed an exception to the consequences for somebody who overstayed even the much longer voluntary departure period for exceptional circumstances.

Congress repealed that exception.

Prior to 1996, the Board in the case we cite in our briefs called Matter of Shaar, held that if an alien is granted voluntary departure and files a motion to reopen, it rejected two arguments.

One is that the filing of a motion to reopen was itself exceptional circumstances that eliminated the deadline.

It rejected that.

It also in an en banc decision rejected the automatic tolling rule that Petitioner is arguing for here under a situation in which Congress had granted a long time for aliens to voluntarily depart.

We think it defies common sense to suggest that when Congress compressed the time to 60 days, it meant to at the same time reverse what the Board had done in Matter of Shaar and granted an automatic tolling rule, not even one under the control of the immigration authorities, but an automatic tolling rule as a matter of law simply by the unilateral act of filing a motion to reopen.

And the Board in Matter of Shaar addressed all of those things.

The Board of Immigration Appeals has filed, followed Matter of Shaar, in the intervening years since 1997... and importantly, I would like to point this out, too, when Petitioner sought a motion for reopening, he relied on a Board decision called Villarde, which recognized that in some circumstances an alien may file a motion to reopen to try to get adjustment of status if there has been intervening development with respect to an immediate relative petition filed by a spouse.

The Board adopted that rule in this en banc published decision Villarde, but said one of the qualifications for being eligible for that relief is that you not be barred under Matter of Shaar, which means you not be barred by having overstayed your voluntary departure period.

So, in the very procedure that Petitioner invoked in this case, there is a published Board decision post-1997 that relies on that... that relies on that rationale, and the Board has followed that consistently.

It is at the very least a reasonable interpretation of the act for the Attorney General not to allow the undermining of this tightened voluntary departure system by providing for reopening.

I should also point out that this is not tolling in the normal sense.

Tolling usually arises where a person has a claim and there is a statute of limitations for filing a claim before a forum.

Petitioner here was already granted voluntary departure.

The 60-day time limit is not a procedural statute of limitations.

It is a limitation on substantive immigration relief.

And we think it's particularly odd that the filing of a procedural motion to reopen would have the effect of changing the statutorily limited time in which an alien could voluntarily depart the United States.

Rebuttal of Christopher J. Meade

Chief Justice Roberts: Thank you, Mr. Kneedler.

Mr. Meade, you have five minutes remaining.

Mr. Meade: The government's arguments on the statutory interpretation in this case are undermined by its own proposed rule for at least five reasons.

First, their proposed rule makes clear that the government agrees that the statute can be read to have multiple meanings.

Second, the proposed rule makes clear that Congress did not intend voluntary departure recipients to waive the motion to reopen in accepting voluntary departure.

Third, the rule stresses the importance of motions to reopen and their importance in bringing changed facts to the agency's attention.

Fourth, the proposed rule turns on unilateral action of the alien and permits that unilateral action to terminate the voluntary departure grant.

Justice Scalia: Do you agree with counsel for the government as to how long it typically takes for these motions to reopen to be disposed of?

He said something like 55 percent take, what, more than--

Mr. Meade: My understanding is that the time, that the time is actually relatively short, that they are generally decided within 90 days.

They're procedures passed by the... by regulation which indicate that they go to the same Board member.

There has been streamlining procedures by the agency in the early 2000, 2001, 2002 period which helped expedite these.

And actually, the time--

Chief Justice Roberts: Do you have any estimate about how many more motions to reopen will have to be considered if your client prevails in this case?

Mr. Meade: --I do not think that there will be many additional motions to reopen, if that happens.

Certainly, if the government has a... if the proposed rule is adopted, the number of motions to reopen will not be affected, because prospectively, the solution... the problem will have been solved, and this case we'll only be dealing with people in the pipeline, people who have already made decisions about whether to file a motion to reopen or not.

So assuming that the government's proposed rule is enacted in anything like its proposed form, then there will be no problem going forward.

Chief Justice Roberts: No, I don't understand that, because my... as I understand it, it would in every case grant an effective extension of the time which you would have to depart if you had filed a motion to reopen.

Mr. Meade: No, that's not correct, with respect.

Under the government's proposed rule, the alien would be placed in the same position as other aliens and would be... and there would be no additional incentive to file a motion to reopen.

Under the government's proposed rule, the period would not toll, the voluntary departure grant would expire, and the alien would be placed in the same position as otherwise--

Justice Alito: Isn't it your position that the statute requires tolling?

Mr. Meade: --Our interpretation is the statute is subject to multiple interpretations.

But the one thing that the statute does not permit is the solution, the construction that's being proposed by the government in this case.

The government... the statute would permit tolling.

The statute permits reconciling the provisions as the government proposes going forward.

But the one thing that the statute does not permit is the government's position in this particular litigation.

Chief Justice Roberts: You answered my question with respect to the government's proposed regulation.

But under your position that would allow the voluntary departure option to remain open, then anyone who exercised that option would want to file a motion to reopen because it would extend their time?

Mr. Meade: The motions to reopen are subject to statutory and regulatory limits.

Moreover, the time period--

Chief Justice Roberts: The answer is yes?

Mr. Meade: --I'm saying that there... aliens could choose to do so, but I disagree that there would be a... many additional motions to reopen.

Justice Scalia: --Your answer is yes, but the Attorney General's rule would prevent that... proposed rule would--

Mr. Meade: Yes.

That's part of the answer, yes, Justice Scalia.

But in addition, the length of time of adjudication is entirely within the agency's control.

It can take two days, two weeks, two months, or if it takes longer--

Chief Justice Roberts: Not if it has 10,000 of these a year, as you told me in your opening argument.

I mean, it takes some time to address them.

You can't say all they have to do is decide them all within two days.

Mr. Meade: --No.

But the answer is that there... it is within their control, so the length of tolling under any tolling rule is not within the control of the alien.

It's within the control of the agency.

This Court... as to your question, Justice Alito, on the... with the regulations with respect to withdraw in this case, the agency is silent on that.

It's unclear to me why the agency... may I finish... it's unclear why the agency did not give my client the request he requested, and we ask that this Court either grant tolling or interpret the statute consistent with the government's proposed rule.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.