OCTOBER TERM, 1994
Syllabus
STONE
v. IMMIGRATION AND NATURALIZATION SERVICE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 93-1199. Argued November 28, 1994-Decided April 19, 1995
In 1988, an Immigration Judge ordered petitioner Stone deported.
The Board of Immigration Appeals (BIA) affirmed on July 26, 1991,
and denied Stone's motion to reopen and/or reconsider the
deportation in February 1993. Shortly thereafter, he petitioned the
Court of Appeals for review of both the deportation and
reconsideration orders. The court dismissed the petition for want
of jurisdiction to the extent that it sought review of the
underlying deportation determination, holding that the filing of
the reconsideration motion did not toll the running of the 90-day
filing period for review of final deportation orders specified in §
106(a)(1) of the Immigration and Nationality Act (INA).
Held: A timely motion for reconsideration of a BIA
decision does not toll the running of § 106(a)(1)'s 90-day period.
Pp.390-406.
(a) The parties agree that a deportation order becomes final
upon the BIA's dismissal of an appeal and that the 90-day appeal
period started to run in this case on July 26, 1991. It is also
clear that the Hobbs Administrative Orders Review Act, which
Congress has directed governs review of deportation orders,
embraces a tolling rule: The timely filing of a motion to
reconsider renders the underlying order nonfinal for purposes of
judicial review.
ICC v.
Locomotive Engineers,
482 U. S. 270.
That conventional tolling rule would apply to this case had
Congress specified using the Hobbs Act to govern review of
deportation orders without further qualification. Pp. 390-393.
(b) However, Congress instead specified 10 exceptions to the use
of Hobbs Act procedures, one of which is decisive here. Section
106(a)(6), added to the INA in 1990, provides that whenever a
petitioner seeks review of an order under § 106, "any review sought
with respect to a motion to reopen or reconsider such an order
shall be consolidated with the review of the order." By its terms,
§ 106(a)(6) contemplates two petitions for review and directs the
courts to consolidate the matters. The direction that the motion to
reopen or reconsider is to be consolidated with the review of the
underlying order, not the other way around, indicates that the
action to review the underlying order remains active and pending
before the court. Were a motion for reconsideration to render the
underlying order nonfinal, there would be, in the normal
387
course, only one petition for review filed and hence nothing for
the Judiciary to consolidate. Since it appears that only the
no-tolling rule would give rise to two separate petitions for
review simultaneously before the courts, which it is plain §
106(a)(6) contemplates, it would seem that only that rule gives
meaning to the section. Pp. 393-395.
(c) Petitioner's construction of § 106(a)(6)-which presumes that
a reconsideration motion renders the underlying order nonfinal if
the motion is filed before a petition for review but that finality
is unaffected if the reconsideration motion is filed after the
petition for review-is unacceptable. It is implausible that
Congress would direct different results in the two circumstances.
Moreover, it is presumed that Congress intends its amendment of a
statute to have real and substantial effect, yet under petitioner's
construction the consolidation provision would have effect only in
the rarest of circumstances. Pp. 395-398.
(d) Underlying considerations of administrative and judicial
efficiency, as well as fairness to the alien, support the
conclusion that Congress intended to depart from the conventional
tolling rule in deportation cases. While an appeal of a deportation
order results in an automatic stay, a motion for agency
reconsideration does not. Congress might not have wished to impose
on aliens the Hobson's choice of petitioning for reconsideration at
the risk of immediate deportation or forgoing reconsideration and
petitioning for review to obtain the automatic stay. In addition,
the tolling rule's policy of delayed review would be at odds with
Congress' fundamental purpose in enacting § 106, which was to
abbreviate the judicial review process in order to prevent aliens
from forestalling deportation by dilatory tactics in the courts.
Pp. 398-401.
(e) A consideration of the analogous practice of appellate court
review of district court judgments confirms the correctness of this
Court's construction of Congress' language. The filing of a motion
for relief from judgment more than 10 days after judgment under
Federal Rule of Civil Procedure 60(b)-the closest analogy to the
petition for agency reconsideration here-does not affect the
finality of a district court's judgment. If filed before the appeal
is taken, it does not toll the running of the time to take an
appeal; if filed after the notice of appeal, appellate court
jurisdiction is not divested. Each case gives rise to two separate
appellate proceedings that can be consolidated. However, if a
post-trial motion that renders an underlying judgment nonfinal is
filed before an appeal, it tolls the time for review, and if filed
afterwards, it divests the appellate court of jurisdiction. Thus,
it gives rise to only one appeal in which all matters are reviewed.
In contrast, the hybrid tolling rule suggested by the dissent-that
a reconsideration motion before the BIA renders the original order
nonfinal if made before a petition for judicial review is filed but
does not affect the finality of the order if filed after-
388
wards-has no analogue at all in the appellate court-district
court context. Pp. 401-406.
13 F.3d
934, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, SCALIA, THOMAS, and GINSBURG, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which O'CONNOR
and SOUTER, JJ., joined,
post, p. 406.
Alan B. Morrison argued the cause for petitioner. On the
briefs was
David Eric Funke.
Beth S.
Brinkmann argued the cause for
respondent.
With her on the brief were Solicitor General Days, Assistant
Attorney General Hunger, and Deputy Solicitor General Kneedler.
JUSTICE KENNEDY delivered the opinion of the Court. We consider
whether the filing of a timely motion for reconsideration of a
decision by the Board of Immigration Appeals tolls the running of
the 90-day period for seeking judicial review of the decision.
I
Petitioner, Marvin Stone, is a citizen of Canada and a
businessman and lawyer by profession. He entered the United States
in 1977 as a nonimmigrant visitor for business and has since
remained in the United States.
On January 3, 1983, Stone was convicted of conspiracy and mail
fraud, in violation of 18 U. S. C. §§ 371 and 1341. He served 18
months of a 3-year prison term. In March 1987, after his release,
the Immigration and Naturalization Service (INS) served him with an
order to show cause why he should not be deported as a nonimmigrant
who had remained in the United States beyond the period authorized
by law. In January 1988, after a series of hearings, an Immigration
Judge ordered Stone deported. The IJ concluded that under the
regulations in effect when Stone entered the United States, an
alien on a nonimmigrant for business visa
389
could remain in the country for an initial period not to exceed
six months with the privilege of seeking extensions, which could be
granted in 6-month increments. 8 CFR § 214.2 (b) (1977). The IJ
ordered deportation under 8 U. S. C. § 1251(a)(2) (now §
1251(a)(1)(B) (1988 ed., Supp. V)) based on petitioner's testimony
that he had remained in the United States since 1977 without
seeking any extension. The IJ denied Stone's application for
suspension of deportation under 8 U. S. C. § 1254(a)(1), concluding
that Stone's conviction of mail fraud and 18-month incarceration
barred him, as a matter of law, from establishing "good moral
character" as required by § 1254. See § 1101(f)(7).
Stone's administrative appeals were as follows: he appealed to
the Board of Immigration Appeals, which affirmed the IJ's
determinations and dismissed the appeal on July 26, 1991; he filed
a "Motion to Reopen and/or to Reconsider" with the BIA in August
1991; on February 3, 1993, some 17 months later, the BIA denied the
reconsideration motion as frivolous.
Judicial review was sought next. The record does not give the
precise date, but, sometime in February or March 1993, Stone
petitioned the Court of Appeals for the Sixth Circuit for review of
both the July 26, 1991, deportation order and the February 3, 1993,
order denying reconsideration. The Court of Appeals dismissed the
petition for want of jurisdiction to the extent the petition sought
review of the July 26, 1991, order, the underlying deportation
determination. The court held that the filing of the
reconsideration motion did not toll the running of the 90-day
filing period for review of final deportation orders.
13 F.3d
934, 938-939 (1994). We granted certiorari, 511 U. S. 1105
(1994), to resolve a conflict among the Circuits on the question,
compare
Akrap v.
INS, 966 F.2d
267, 271 (CA7 1992), and
Nocon v.
INS, 789 F.2d
1028,1033 (CA3 1986) (agreeing that the filing of a
reconsideration motion does not toll the statutory time limit for
seeking review of a deportation order), with
Fleary
390
v.
INS, 950 F.2d
711, 713 (CAll 1992),
Pierre v.
INS, 932 F. 2d
418, 421 (CA5 1991)
(per curiam), Attoh v.
INS, 606
F. 2d 1273, 1275, n. 15 (CADC 1979), and
Bregman v.
INS, 351 F.2d
401, 402-403 (CA9 1965) (holding that a petition to review a
deportation order is timely if filed within the statutory period
following the disposition of a timely filed reconsideration
motion). We now affirm.
II A
Section 106(a)(1) of the Immigration and Nationality Act (INA)
specifies that "a petition for review [of a final deportation
order] may be filed not later than 90 days after the date of the
issuance of the final deportation order, or, in the case of an
alien convicted of an aggravated felony, not later than 30 days
after the issuance of such order." 8 U. S. C. § 1l05a(a)(1) (1988
ed. and Supp. V). The clause pertaining to an "aggravated felony"
is not a factor in the analysis, petitioner's offense not being
within that defined term. See § 1l01(a)(43). He had the benefit of
the full 90-day filing period. There is no dispute that a
deportation order "become[s] final upon dismissal of an appeal by
the Board of Immigration Appeals," 8 CFR § 243.1 (1977), and, the
parties agree, the 90-day period started on July 26, 1991.
The parties disagree, however, regarding the effect that
petitioner's later filing of a timely motion to reconsider had on
the finality of the order. Petitioner contends that a timely motion
to reconsider renders the underlying order nonfinal, and that a
petition seeking review of both the order and the reconsideration
denial is timely if filed (as this petition was) within 90 days of
the reconsideration denial. The INS argues that the finality and
reviewability of an order are unaffected by the filing of a motion
to reconsider or to reopen. In its view the Court of Appeals had
jurisdiction to review the denial of the motion to reconsider but
not to review the original order.
391
We considered the timeliness of a review petition where there is
a motion to reconsider or reopen an agency's order in
ICC v.
Locomotive Engineers, 482 U. S. 270 (1987). The
Interstate Commerce Commission's governing statute provided that,
with certain exceptions, judicial review of ICC orders would be
governed by the Hobbs Administrative Orders Review Act, 28 U. S. C.
§ 2341
et seq. See
Locomotive Engineers, 482 U. S.,
at 277. We held that "the timely petition for administrative
reconsideration stayed the running of the Hobbs Act's limitation
period until the petition had been acted upon by the Commission."
Id., at 284. Our conclusion, we acknowledged, was in some
tension with the language of both the Hobbs Act, which permits an
aggrieved party to petition for review "within 60 days after [the]
entry" of a final order, 28 U. S. C. § 2344, and of 49 U. S. C. §
10327(i), "which provides that, '[n]otwithstanding' the provision
authorizing the Commission to reopen and reconsider its orders (§
10327(g)), 'an action of the Commission ... is final on the date on
which it is served, and a civil action to enforce, enjoin, suspend,
or set aside the action may be filed after that date.'"
Locomotive Engineers, supra, at 284. We found the
controlling language similar to the corresponding provision of the
Administrative Procedure Act (APA), 5 U. S. C. § 704, which
provides that "agency action otherwise final is final for the
purposes of this section [entitled 'Actions Reviewable'] whether or
not there has been presented or determined an application for ...
any form of reconsideratio[n]"- "language [that] has long been
construed ... merely to relieve parties from the
requirement
of petitioning for rehearing before seeking judicial review ... but
not to prevent petitions for reconsideration that are actually
filed from rendering the orders under reconsideration nonfinal."
Locomotive Engineers, supra, at 284-285 (citation
omitted).
In support of that longstanding construction of the AP A
language, we cited dicta in two earlier cases,
American Farm
Lines v.
Black Ball Freight Service, 397 U. S. 532, 541
392
(1970); CAB v.
Delta Air Lines, Inc., 367 U. S. 316, 326-327
(1961), and the holding in
Outland v.
CAB, 284 F.2d
224, 227 (CADC 1960), a decision cited with approval in both
Black Ball and
Delta. Outland justified treating
orders as nonfinal for purposes of review during the pendency of a
motion for reconsideration in terms of judicial economy: "[W]hen
the party elects to seek a rehearing there is always a possibility
that the order complained of will be modified in a way which
renders judicial review unnecessary."
Outland, supra, at
227.
As construed in
Locomotive Engineers both the APA and the
Hobbs Act embrace a tolling rule: The timely filing of a motion to
reconsider renders the underlying order nonfinal for purposes of
judicial review. In consequence, pendency of reconsideration
renders the underlying decision not yet final, and it is implicit
in the tolling rule that a party who has sought rehearing cannot
seek judicial review until the rehearing has concluded. 4 K. Davis,
Administrative Law Treatise § 26:12 (2d ed. 1988);
United
Transportation Union v.
ICC, 871 F.2d
1114, 1118 (CADC 1989);
Bellsouth Corp. v.
FCC,
17 F.3d
1487, 1489-1490 (CADC 1994). Indeed, those Circuits that apply
the tolling rule have so held. See
Fleary, 950 F. 2d, at
711-712 (deportation order not reviewable during pendency of motion
to reopen);
Hyun Joon Chung v.
INS, 720 F.2d
1471, 1474 (CA9 1984) (same).
Section 106 of the INA provides that "[t]he procedure prescribed
by, and all the provisions of chapter 158 of title 28, shall apply
to, and shall be the sole and exclusive procedure for, the judicial
review of all final orders of deportation .... " 8 U. S. C. §
1105a(a) (1988 ed. and Supp. V). The reference to chapter 158 of
Title 28 is a reference to the Hobbs Act. In light of our
construction of the Hobbs Act in
Locomotive Engineers, had
Congress used that Act to govern review of deportation orders
without further qualification, it would follow that the so-called
tolling rule applied.
393
The INS, however, proffers a different reading of
Locomotive
Engineers. Relying on our statement that the provision of the
AP A, 5 U. S. C. § 704, has been construed "not to
prevent
petitions for reconsideration that are actually filed from
rendering the orders under reconsideration nonfinal," 482 U. S., at
285 (emphasis supplied), the INS understands
Locomotive
Engineers to set forth merely a default rule from which
agencies may choose to depart. It argues that it did so here.
If the case turned on this theory, the question would arise
whether an agency subject to either the APA or the Hobbs Act has
the authority to specify whether the finality of its orders for
purposes of judicial review is affected by the filing of a motion
to reconsider. The question is not presented here. Both the Hobbs
Act and the AP A are congressional enactments, and Congress may
alter or modify their application in the case of particular
agencies. We conclude that in amending the INA Congress chose to
depart from the ordinary judicial treatment of agency orders under
reconsideration.
B
Congress directed that the Hobbs Act procedures would govern
review of deportation orders, except for 10 specified
qualifications. See 8 U. S. C. § 1l05a(a). Two of those exceptions
are pertinent. The first, contained in § 106(a)(1) of the INA,
provides an alien with 90 days to petition for review of a final
deportation order (30 days for aliens convicted of an aggravated
felony), instead of the Hobbs Act's 60-day period. See 8 U. S. C. §
1l05a(a)(1) (1988 ed., Supp. V). The second and decisive exception
is contained in § 106(a)(6), a provision added when Congress
amended the INA in 1990. The section provides:
"[W]henever a petitioner seeks review of an order under this
section, any review sought with respect to a motion to reopen or
reconsider such an order shall be
394
consolidated with the review of the order." 8 U. S. C. §
1l05a(a)(6).
By its terms, § 106(a)(6) contemplates two petitions for review
and directs the courts to consolidate the matters. The words of the
statute do not permit us to say that the filing of a petition for
reconsideration or reopening dislodges the earlier proceeding
reviewing the underlying order. The statute, in fact, directs that
the motion to reopen or reconsider is to be consolidated with the
review of the order, not the other way around. This indicates to us
that the action to review the underlying order remains active and
pending before the court. We conclude that the statute is best
understood as reflecting an intent on the part of Congress that
deportation orders are to be reviewed in a timely fashion after
issuance, irrespective of the later filing of a motion to reopen or
reconsider.
Were a motion for reconsideration to render the underlying order
nonfinal, there would be, in the normal course, only one petition
for review filed and hence nothing for the judiciary to
consolidate. As in
Locomotive Engineers itself, review would
be sought after denial of reconsideration, and both the underlying
order and the denial of reconsideration would be reviewed in a
single proceeding, insofar, at least, as denial of reconsideration
would be reviewable at all. See
Locomotive Engineers, 482 U.
S., at 280. Indeed, the Ninth Circuit, which before the 1990
amendment had held that pendency of a reconsideration motion did
render a deportation order nonfinal, understood that the tolling
rule contemplates just one petition for review: "Congress
visualized a single administrative proceeding in which all
questions relating to an alien's deportation would be raised and
resolved, followed by a single petition in a court of appeals for
judicial review .... "
Yamada v.
INS, 384 F.2d
214, 218 (CA9 1967). The tolling rule is hard to square with
the existence of two separate judicial review proceedings.
395
Under the no-tolling rule, by contrast, two separate petitions
for review will exist in the normal course. An order would be final
when issued, irrespective of the later filing of a reconsideration
motion, and the aggrieved party would seek judicial review of the
order within the specified period. Upon denial of reconsideration,
the petitioner would file a separate petition to review that second
final order. Because it appears that only the no-tolling rule could
give rise to two separate petitions for review simultaneously
before the courts, which it is plain § 106(a)(6) contemplates, it
would seem that only that rule gives meaning to the section.
Although the consolidation provision does not mention tolling,
see
post, at 408 (BREYER, J., dissenting), tolling would be
the logical consequence if the statutory scheme provided for the
nonfinality of orders upon the filing of a reconsideration motion.
Locomotive Engineers' conclusion as to tolling followed as a
necessary consequence from its conclusion about finality. Finality
is the antecedent question, and as to that matter the consolidation
provision speaks volumes. All would agree that the provision
envisions two petitions for review. See
post, at 408
(BREYER, J., dissenting). Because only "final deportation order[sJ"
may be reviewed, 8 U. S. c. § 1l05a(a)(1), it follows by necessity
that the provision requires for its operation the existence of two
separate final orders, the petitions for review of which could be
consolidated. The two orders cannot remain final and hence the
subject of separate petitions for review if the filing of the
reconsideration motion rendered the original order nonfinal. It
follows that the filing of the reconsideration motion does not toll
the time to petition for review. By speaking to finality, the
consolidation provision does say quite a bit about tolling.
Recognizing this problem, petitioner at oral argument sought to
give meaning to § 106(a)(6) by offering a different version of what
often might occur. Petitioner envisioned an alien who petitioned
for review of a final deportation order,
396
and, while the petition was still pending, went back to the
agency to seek its reconsideration or, if new evidence had arisen,
reopening. If, upon denial of reconsideration or reopening, the
alien sought review, and the review of the original order were
still pending, § 106(a)(6) would apply and the two petitions would
be consolidated. The dissent relies on the same assumed state of
events. See
post, at 409-410.
That construct, however, is premised on a view of finality quite
inconsistent with the tolling rule petitioner himself proposes. If,
as petitioner advocates, the filing of a timely petition for
reconsideration before seeking judicial review renders the
underlying order nonfinal, so that a reviewing court would lack
jurisdiction to review the order until after disposition of the
reconsideration motion, one wonders how a court retains
jurisdiction merely because the petitioner delays the
reconsideration motions until after filing the petition for
judicial review of the underlying order. The policy supporting the
nonfinality rule-that "when the party elects to seek a rehearing
there is always a possibility that the order complained of will be
modified in a way which renders judicial review unnecessary,"
Outland, 284 F. 2d, at 227-applies with equal force where
the party seeks agency rehearing after filing a petition for
judicial review. Indeed, the Court of Appeals for the District of
Columbia Circuit, whose decision in
Outland we cited in
support of our construction in
Locomotive Engineers, has so
held in the years following our decision. See
Wade v.
FCC, 986 F.2d
1433, 1434 (1993)
(per curiam) ("The danger of wasted
judicial effort ... arises whether a party seeks agency
reconsideration before, simultaneous with, or after filing an
appeal or petition for judicial review") (citations omitted). The
Wade holding rested on, and is consistent with, our decision
in a somewhat analogous context that the filing of a Federal Rule
of Civil Procedure 59 motion to alter or amend a district court's
judgment strips the appellate court of jurisdiction, whether the
Rule 59 motion is filed before or after the notice of appeal. See
Griggs
397
v.
Provident Consumer Discount Co., 459 U. S. 56, 61 (1982)
(per curiam). Our decision, based on a construction of
Federal Rule of Appellate Procedure 4(a)(4), noted the "theoretical
inconsistency" of permitting the district court to retain
jurisdiction to decide the Rule 59 motion while treating the notice
of appeal as "adequate for purposes of beginning the appeals
process."
Griggs, supra, at 59.
We need not confirm the correctness of the
Wade decision,
but neither should we go out of our way to say it is incorrect, as
petitioner and the dissent would have us do. The inconsistency in
petitioner's construction of § 106(a)(6) is the same inconsistency
that we noted in
Griggs. Petitioner assumes that a
reconsideration motion renders the underlying order nonfinal if the
motion is filed before a petition for review, but that finality is
unaffected if the reconsideration motion is filed one day after the
petition for review. It is implausible that Congress would direct
different results in the two circumstances. At any rate, under
petitioner's construction the consolidation provision would have
effect only in the rarest of circumstances.
When Congress acts to amend a statute, we presume it intends its
amendment to have real and substantial effect. See
Reiter v.
Sonotone Corp., 442 U. S. 330, 339 (1979)
(Court must construe statute to give effect, if possible, to every
provision);
Moskal v.
United States, 498 U. S. 103, 109-111
(1990) (same). Had Congress intended review of INS orders to
proceed in a manner no different from review of other agencies, as
petitioner appears to argue, there would have been no reason for
Congress to have included the consolidation provision. The
reasonable construction is that the amendment was enacted as an
exception, not just to state an already existing rule. Section
106(a)(6) is an explicit exception to the general applicability of
the Hobbs Act procedures, so it must be construed as creating a
procedure different from normal practice under the Act. We
conclude, as did the Court of Appeals, see 13 F. 3d, at 938, and
the Seventh
398
Circuit, see
Akrap, 966 F. 2d, at 271, that the
consolidation provision Congress inserted when it amended the Act
in 1990 is best understood as reflecting its expectation that in
the particular context of INS deportation orders the normal tolling
rule will not apply.
C
Underlying considerations of administrative and judicial
efficiency, as well as fairness to the alien, support our
conclusion that Congress intended to depart from the conventional
tolling rule in deportation cases.
Deportation orders are self-executing orders, not dependent upon
judicial enforcement. This accounts for the automatic stay
mechanism, the statutory provision providing that service of the
petition for review of the deportation order stays the deportation
absent contrary direction from the court or the alien's aggravated
felony status. See 8 U. S. C. § 1l05a(a)(3). The automatic stay
would be all but a necessity for preserving the jurisdiction of the
court, for the agency might not otherwise refrain from enforcement.
Indeed, the INA provides that "nothing in this section [Judicial
review of orders of deportation and exclusion] shall be construed
to require the Attorney General to defer deportation of an alien
after the issuance of a deportation order because of the right of
judicial review of the order granted by this section." 8 U. S. C. §
1l05a(a)(8) (1988 ed., Supp. V). And it has been the longstanding
view of the INS, a view we presume Congress understood when it
amended the Act in 1990, that a motion for reconsideration does not
serve to stay the deportation order. 8 CFR § 3.8 (1977). Cf.
Delta Air Lines, 367 U. S., at 325-327 (certificate of
public convenience and necessity effective when issued though not
final for purposes of judicial review because of pendency of
reconsideration motion).
Were the tolling rule to apply here, aliens subject to
deportation orders might well face a Hobson's choice: petition for
agency reconsideration at the risk of immediate deporta-
399
tion, or forgo reconsideration and petition for review to obtain
the automatic stay. The choice is a hard one in deportation cases,
in that the consequences of deportation are so final, unlike orders
in some other administrative contexts. Once an alien has been
deported, the courts lack jurisdiction to review the deportation
order's validity. See 8 U. S. C. § 1l05a(c). This choice is one
Congress might not have wished to impose on the alien.
An alien who had filed for agency reconsideration might seek to
avoid immediate deportation by seeking a judicial stay. At oral
argument, petitioner suggested a habeas corpus action as one
solution to the dilemma. Even on the assumption that a habeas
corpus action would be available, see § 1l05a(a) (Exclusiveness of
procedure), the solution is unsatisfactory. In evaluating those
stay applications the courts would be required to assess the
probability of the alien's prevailing on review, turning the stay
proceedings into collateral previews of the eventual petitions for
review-indeed a preview now implicating the district court, not
just the court of appeals. By inviting duplicative review in
multiple courts, the normal tolling rule would frustrate, rather
than promote, its stated goal of judicial economy.
From an even more fundamental standpoint, the policies of the
tolling rule are at odds with Congress' policy in adopting the
judicial review provisions of the INA. The tolling rule reflects a
preference to postpone judicial review to ensure completion of the
administrative process. Reconsideration might eliminate the need
for judicial intervention, and the resultant saving in judicial
resources ought not to be diminished by premature adjudication. By
contrast, Congress' "fundamental purpose" in enacting § 106 of the
IN A was "to abbreviate the process of judicial review ... in order
to frustrate certain practices ... whereby persons subject to
deportation were forestalling departure by dilatory tactics in the
courts."
Foti v.
INS, 375 U. S. 217, 224
(1963). Congress' concern reflected the reality that "in a
deportation
400
proceeding ... as a general matter, every delay works to the
advantage of the deportable alien who wishes merely to remain in
the United States."
INS v.
Doherty, 502 U. S. 314, 321-325
(1992). Congress' intent in adopting and then amending the INA was
to expedite both the initiation and the completion of the judicial
review process. The tolling rule's policy of delayed review would
be at odds with the congressional purpose.
The dissent does not dispute that a principal purpose of the
1990 amendments to the INA was to expedite petitions for review and
to redress the related problem of successive and frivolous
administrative appeals and motions. In the Immigration Act of 1990,
Pub. L. 101-649, 104 Stat. 5048, Congress took five steps to reduce
or eliminate these abuses. First, it directed the Attorney General
to promulgate regulations limiting the number of reconsideration
and reopening motions that an alien could file. § 545(b). Second,
it instructed the Attorney General to promulgate regulations
specifying the maximum time period for the filing of those motions,
hinting that a 20-day period would be appropriate. See
ibid.
Third, Congress cut in half the time for seeking judicial review of
the final deportation order, from 180 to 90 days. See
ibid.
Fourth, Congress directed the Attorney General to define "frivolous
behavior for which attorneys may be sanctioned" in connection with
administrative appeals and motions. See § 545(a). In the dissent's
view, a fifth measure, the consolidation provision, was added for
no apparent reason and bears no relation to the other amendments
Congress enacted at the same time. It is more plausible that when
Congress took the first four steps to solve a problem, the
fifth-the consolidation provision-was also part of the solution,
and not a step in the other direction. By envisioning that a final
deportation order will remain final and reviewable for 90 days from
the date of its issuance irrespective of the later filing of a
reconsideration motion, Congress' amendment eliminates much if not
all of the incen-
401
tive to file a meritless reconsideration motion, and, like the
other amendments adopted at the same time, expedites the time
within which the judicial review process of the deportation order
begins.
D
A consideration of the analogous practice of appellate court
review of district court judgments confirms the correctness of our
construction of Congress' language. The closest analogy to the INS'
discretionary petition for agency reconsideration is the motion for
relief from judgment under Federal Rule of Civil Procedure 60(b).
The effect of Rule 60(b) motions (at least when made more than 10
days after judgment, an exception discussed below), on the finality
and appealability of district court judgments is comparable to the
effect of reconsideration motions on INS orders. With the exception
noted, the filing of a Rule 60(b) motion does not toll the running
of the time for taking an appeal, see Fed. Rule Civ. Proc. 60(b);
11 C. Wright & A. Miller, Federal Practice and Procedure § 2871
(1973) (Wright & Miller), and the pendency of the motion before
the district court does not affect the continuity of a prior-taken
appeal. See
ibid. And last but not least, the pendency of an
appeal does not affect the district court's power to grant Rule 60
relief. See
Standard Oil Co. of Cal. v.
United
States, 429 U. S.
17, 18-19
(1976) (per curiam); Wright &
Miller § 2873 (1994 Supp.). A litigant faced with an unfavorable
district court judgment must appeal that judgment within the time
allotted by Federal Rule of Appellate Procedure 4, whether or not
the litigant first files a Rule 60(b) motion (where the Rule 60
motion is filed more than 10 days following judgment). Either
before or after filing his appeal, the litigant may also file a
Rule 60(b) motion for relief with the district court. The denial of
the motion is appealable as a separate final order, and if the
original appeal is still pending it would seem that the court of
appeals can consolidate the proceedings. In each of these respects,
the practice of litigants under Rule 60(b) is, under
402
our construction, identical to that of aliens who file motions
for reconsideration before the BIA. In each case two separate
postdecision appeals are filed.
For reasons not relevant here, in 1991 the Rules of Appellate
Procedure were amended to provide that Rule 60(b) motions filed
within 10 days of a district court's judgment do toll the time for
taking an appeal. See Fed. Rule App. Proc. 4(a)(4)(F). That
amendment added Rule 60(b) motions filed within 10 days of judgment
to a list of other post-trial motions that toll the running of the
time for appeal, a list that includes Rule 59 motions to alter or
amend a judgment. See Fed. Rule App. Proc. 4(a)(4)(C). A
consideration of this provision of the appellate rules is quite
revealing. The list of post-trial motions that toll the time for
appeal is followed, and hence qualified, by the language
interpreted in
Griggs, language that provides in express
terms that these motions also serve to divest the appellate court
of jurisdiction where the motions are filed after appeal is
taken.
The language of Rule 4 undermines the dissent's reliance on a
presumption that appellate court jurisdiction once asserted is not
divested by further proceedings at the trial or agency level. See
post, at 410. Indeed, the practice is most often to the
contrary where appellate court review of district court judgments
subject to post-trial motions is concerned. See Fed. Rule App.
Proc. 4(a)( 4) (specifying that the majority of post judgment
motions filed with the district court divest the appellate court of
jurisdiction that had once existed). A district court judgment
subject to one of these enumerated motions, typified by Rule 59, is
reviewable only after, and in conjunction with, review of the
denial of the post-trial motion, and just one appeal pends before
the appellate court at anyone time.
In short, the Rules of Appellate Procedure evince a consistent
and coherent view of the finality and appealability of district
court judgments subject to post-trial motions. The majority of
post-trial motions, such as Rule 59, render the
403
underlying judgment nonfinal both when filed before an appeal is
taken (thus tolling the time for taking an appeal), and when filed
after the notice of appeal (thus divesting the appellate court of
jurisdiction). Other motions, such as Rule 60(b) motions filed more
than 10 days after judgment, do not affect the finality of a
district court's judgment, either when filed before the appeal (no
tolling), or afterwards (appellate court jurisdiction not
divested). Motions that do toll the time for taking appeal give
rise to only one appeal in which all matters are reviewed; motions
that do not toll the time for taking an appeal give rise to two
separate appellate proceedings that can be consolidated.
E
Our colleagues in dissent agree that the consolidation provision
envisions the existence of two separate petitions for review. See
post, at 408. To give the provision meaning while at the
same time concluding that the tolling rule applies, the dissent is
compelled to conclude that a reconsideration motion before the BIA
renders the original order nonfinal if made before a petition for
judicial review is filed but does not affect the finality of the
order if filed afterwards. See
post, at 413-414. The hybrid
tolling rule the dissent suggests has no analogue at all in the
appellate court-district court context. On the contrary, as we have
just observed, the uniform principle where appellate review of
district court judgments is concerned is that motions that toll
produce but one appeal, motions that do not toll produce two. It is
only by creating this new hybrid that the dissent can give meaning
to the consolidation provision, and avoid the Hobson's choice for
the alien. While litigants who practice before the district courts
and the BIA will have familiarity with both types of post-trial
motions discussed above, and will have no difficulty practicing
under the rule we announce today, practitioners would have no
familiarity with the hy-
404
brid tolling rule the dissent is compelled to devise in order to
give the consolidation provision meaning.
It is worthwhile pausing to consider just how many steps the
dissent must take to reconcile the consolidation provision with the
tolling rule it prefers. The dissent's construction would require
that the Court conclude, without any briefing, that our decision in
Griggs does not apply to agency review. The dissent would as
well disrupt administrative law in general by overturning the
practice of the Court of Appeals with the most experience reviewing
agency decisions when faced with agency reconsideration motions
made after petition for review (the District of Columbia Circuit),
thereby resolving a circuit split without any briefing or argument.
See
post, at 412. Our construction avoids each of these
extraordinary steps. It creates a practice parallel to that of
appellate courts reviewing district court judgments subject to
pending Rule 60(b) motions filed more than 10 days after judgment
and requires us to take no firm position on whether
Griggs
applies to agency review where tolling does occur.
But the full import of our decision in
Griggs, and the
concomitant problem addressed in
Wade, are in some sense
secondary to our fundamental point of dispute with the dissent. In
our view the consolidation provision reflects Congress' intent to
depart from the normal tolling rule in this context, whereas on the
dissent's view it does not. Congress itself was explicit in stating
that the consolidation provision is an exception to the
applicability of the Hobbs Act procedures, see
supra, at
393, and it took the deliberate step of amending the Act in 1990 to
add the provision. The challenge for the dissent is not, then, just
to give the consolidation provision some work to do that is
consistent with the tolling rule, but to give it some work as an
exception to the applicability of the Hobbs Act procedures, a
meaning that explains why Congress might have taken trouble to add
it. The dissent's construction of the consolidation provision gives
it effect, if any, only in what must be those rare instances where
aliens first
405
petition for judicial review and then seek agency
reconsideration. And, more important, its construction cannot
account for Congress' decision to amend the Act in 1990 to provide
that the Hobbs Act procedures, which in the normal course include
the tolling rule, shall apply "except" for the consolidation
provision.
F
Whatever assessment Congress might have made in enacting the
judicial review provisions of the INA in the first instance, we
conclude from the consolidation provision added in 1990 that it
envisioned two separate petitions filed to review two separate
final orders. To be sure, it would have been preferable for
Congress to have spoken with greater clarity. Judicial review
provisions, however, are jurisdictional in nature and must be
construed with strict fidelity to their terms. As we have
explained:
"Section 106(a) is intended exclusively to prescribe and
regulate a portion of the jurisdiction of the federal courts. As a
jurisdictional statute, it must be construed both with precision
and with fidelity to the terms by which Congress has expressed its
wishes." Cheng Fan Kwok v. INS, 392 U. S. 206, 212
(1968).
This is all the more true of statutory provisions specifying the
timing of review, for those time limits are, as we have often
stated, "mandatory and jurisdictional,"
Missouri v.
Jenkins, 495 U.
S. 33, 45 (1990), and are not subject to equitable tolling. See
Fed. Rule App. Proc. 26(b).
***
The consolidation provision in § 106(a)(6) reflects Congress'
understanding that a deportation order is final, and reviewable,
when issued. Its finality is not affected by the subsequent filing
of a motion to reconsider. The order being final when issued, an
alien has 90 days from that date to seek review. The alien, if he
chooses, may also seek agency re-
406
consideration of the order and seek review of the disposition
upon reconsideration within 90 days of its issuance. Where the
original petition is still before the court, the court shall
consolidate the two petitions. See 8 U. S. C. § 1l05a(a)(6) (1988
ed., Supp. V).
Because Stone's petition was filed more than 90 days after the
issuance of the BIA's July 26, 1991, decision, the Court of Appeals
lacked jurisdiction to review that order.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE O'CONNOR and JUSTICE SOUTER
join, dissenting.
The majority reads § 106(a) of the Immigration and N ationality
Act (INA), 8 U. S. C. § 1l05a(a) (1988 ed., Supp. V), as creating
an exception to the ordinary legal rules that govern the
interaction of (1) motions for agency reconsideration with (2) time
limits for appeals. In my view, the statute does not create such an
exception. And, reading it to do so risks unnecessary complexity in
the technical, but important, matter of how one petitions a court
for judicial review of an adverse agency decision. For these
reasons, I dissent.
This Court, in
ICC v.
Locomotive Engineers,
482 U. S. 270
(1987), considered the interaction between reconsideration motions
and appeal time limits when one wants to petition a court of
appeals to review an adverse judgment of an administrative agency
(which I shall call an "agency/court" appeal). The Court held that
this interaction resembled that which takes place between (1) an
appeal from a district court judgment to a court of appeals (which
I shall call a "court/court" appeal) and (2) certain motions for
district court reconsideration, namely, those filed soon after
entry of the district court judgment. See Fed. Rule App. Proc.
4(a)(4). The relevant statute (commonly called the Hobbs Act) said
that a petition for review of a final agency order may be filed in
the court
407
of appeals "within 60 days after its entry." 28 U. S. C. § 2344.
The Court concluded, on the basis of precedent, that the filing of
a proper petition for reconsideration, "within the period allotted
for judicial review of the original order ... tolls the period for
judicial review of the original order." 482 U. S., at 279. That
order can "be appealed to the courts ... after the petition for
reconsideration is denied."
Ibid. See also
id., at
284-285.
In my view, we should interpret the IN A as calling for tolling,
just as we interpreted the Hobbs Act in
Locomotive
Engineers. For one thing, the appeals time limit language in
the IN A is similar to that in the Hobbs Act. Like the Hobbs Act,
the INA does not mention tolling explicitly; it simply says that "a
petition for review may be filed not later than 90 days after the
date of the issuance of the final deportation order." INA §
106(a)(1), 8 U. S. C. § 1l05a(a)(1) (1988 ed., Supp. V). More
importantly, the INA explicitly states that the "procedure
prescribed by, and all the provisions of [the Hobbs Act, 28 U. S.
C. § 2341
et seq.,] shall apply to, and shall be the sole
and exclusive procedure for, the judicial review of all final
orders of deportation." INA § 106(a), 8 U. S. C. § 1l05a(a). This
statutory phrase is not conclusive because it is followed by
several exceptions, one of which is the subsection setting the
"[t]ime for filing [a] petition" for review. INA § 106(a)(1), 8 U.
S. C. § 1l05a(a)(1). But, the context suggests that the reason for
calling the latter clause an exception lies in the
number of
days permitted for filing90 in the INA, as opposed to 60 in the
Hobbs Act. Nothing in the language of § 106(a) (which was amended
three years after
Locomotive Engineers, see Immigration Act
of 1990, § 545(b), 104 Stat. 5065) suggests any further exception
in respect to tolling.
Finally, interpreting the INA and the Hobbs Act consistently
makes it easier for the bar to understand, and to follow, these
highly technical rules. With consistent rules, a
nonimmigration-specialist lawyer (say, a lawyer used to working
408
in the ordinary agency/court context) who seeks reconsideration
of a Board of Immigration Appeals (BIA) decision is less likely to
lose his client's right to appeal simply through inadvertence.
The majority reaches a different conclusion because it believes
that one subsection of the INA, § 106(a)(6), is inconsistent with
the ordinary
Locomotive Engineers tolling rule. That
subsection says that
"whenever a petitioner seeks [(1)] review of [a final
deportation] order ... any [(2)] review sought with respect to a
motion to reopen or reconsider such an order shall be consolidated
with the review of the order." 8 U. S. C. § 1l05a(a)(6) (1988 ed.,
Supp. V).
This "consolidation" subsection, however, says nothing about
tolling. Indeed, it does not address, even in a general way, the
timing of petitions for judicial review; it just says what must
happen when two reviews make it separately to the court of appeals
and are on the court's docket at the same time (i.
e., they
must be consolidated). And, the legislative history is likewise
silent on the matter. See,
e. g., H. R. Conf. Rep.
No. 101-955, pp. 132-133 (1990). Given that § 106(a)(6) was enacted
only three years after
Locomotive Engineers, it seems
unlikely that Congress consciously created a significantly
different approach to the reviewdeadline/reconsideration-petition
problem (with the consequent risk of confusing lawyers) in so
indirect a manner.
Nevertheless, the majority believes this subsection is
inconsistent with the ordinary
Locomotive Engineers
tolling rule because application of the ordinary tolling rule would
normally lead an alien to appeal both (1) the original deportation
order and (2) a denial of agency reconsideration, in a single
petition, after the denial takes place. Thus, in the majority's
view, one could never find (1) a petition to review an original
deportation order and (2) a petition to review a denial of a motion
to reconsider that order, properly together
409
in the court of appeals at the same time. And, for that reason,
there would be nothing to "consolidate" under the statute. An
opposite rule (one which denies tolling) would, in the majority's
view, sometimes produce (simultaneously) both (1) an initial appeal
from the original order and (2) an appeal from a denial of
reconsideration (if the reconsideration motion were decided, and
the second appeal taken, before the court could decide the initial
appeal). The "notolling" rule would therefore sometimes produce two
appeals, ready for consolidation. The majority concludes that it
must infer this "no-tolling" rule in order to give the
"consolidation" subsection some work to do and thereby make it
legally meaningful.
I do not believe it necessary, however, to create a special
exception from the ordinary
Locomotive Engineers tolling
rule in order to make the "consolidation" subsection meaningful,
for even under that ordinary tolling rule, the "consolidation"
subsection will have work to do. Consider the following case: The
BIA enters a final deportation order on Day Zero. The alien files a
timely petition for review in a court of appeals on Day 50.
Circumstances suddenly change-say, in the alien's home country-and
on Day 70 the alien then files a motion to reopen with the agency.
(The majority says such a filing "must be" a "rare" happening,
ante, at 404, but I do not see why. New circumstances
justifying reopening or reconsideration might arise at any time.
Indeed, this situation must arise with some frequency, since INS
regulations expressly recognize that a motion to reopen or
reconsider may be filed after judicial review has been sought. See,
e. g., 8 CFR § 3.8(a) (1994) (requiring that motions
to reopen or reconsider state whether the validity of the order to
be reopened has been, or is, the subject of a judicial
proceeding).) The agency denies the reconsideration motion on Day
100. The alien then appeals that denial on Day 110. In this case,
the court of appeals would have before it two appeals: the appeal
filed on Day 50 and the appeal filed on
410
Day 110. The "consolidation" subsection tells the court of
appeals to consolidate those two appeals and decide them together.
(In fact, the alien might well have informed the court of appeals,
say on Day 70, about the reconsideration motion, in which case the
court, unless it thought the motion a frivolous stalling device,
might have postponed decision on the merits of the initial appeal,
awaiting the results of the reconsideration decision, an appeal
from which it could then consolidate with the initial appeal. See,
e. g., Gebremichael v.
INS, 10 F.3d
28, 33, n. 13 (CA1 1993) (decision on appeal stayed until the
agency resolved alien's motion for reconsideration; initial appeal
then consolidated with the appeal from the denial of rehearing).)
In this example, the subsection would have meaning as an
"exception" to the Hobbs Act, cf.
ante, at 404-405, since
nothing in the Hobbs Act requires the consolidation of court
reviews.
The majority understands this counterexample, but rejects it,
for fear of creating both a conceptual and a precedential problem.
Neither of those perceived problems, however, is significant. The
conceptual problem the majority fears arises out of the fact that,
under the ordinary tolling rule, the filing of a petition for
reconsideration is deemed to render an otherwise "final" initial
(but not-yet-appealed) order "nonfinal" for purposes of court
review. Hence, one may not appeal the merits of that initial order
until the district court or agency finally decides the
reconsideration petition. The majority believes that the
reconsideration petition in the counterexample above (a petition
filed
after an appeal is taken from the initial order) also
renders "nonfinal," and hence not properly appealable, the initial
order, removing the initial appeal from the court of appeals, and
thereby leaving nothing to consolidate.
The answer to this conceptual argument lies in the "general
principle" that "jurisdiction, once vested, is not divested,
although a state of things should arrive in which original
jurisdiction could not be exercised."
United States v.
The
411
Little Charles, 26 F. Cas. 979, 982 (No. 15,612) (CC Va.
1818) (Marshall, C. J., Circuit Justice), quoted in
Republic
Nat. Bank of Miami v.
United States, 506 U. S. 80 (1992). The
first appeal, as of Day 50, has reached the court of appeals. Thus,
conceptually speaking, one should not consider a later filed motion
for reconsideration as having "divested" the court of jurisdiction.
And, practically speaking, it makes sense to leave the appeal
there, permitting the court of appeals to decide it, or to delay
it, as circumstances dictate (say, depending upon the extent to
which effort and resources already have been expended in
prosecuting and deciding the appeal). After all, we have long
recognized that courts have inherent power to stay proceedings and
"to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for
litigants."
Landis v.
North American Co., 299 U. S. 248, 254
(1936); cf. 28 U. S. C. § 1367(c)(3) (1988 ed., Supp. V) (providing
that district court may, but need not, decline to exercise
supplemental jurisdiction over a claim when it has dismissed all
claims over which it has original jurisdiction).
The precedential problem, in the majority's view, arises out of
Griggs v.
Provident Consumer Discount Co., 459 U. S. 56 (1982)
(per curiam), a court/court case in which this Court held
that the filing of a reconsideration motion under Federal Rule of
Civil Procedure 59 caused an earlier filed notice of appeal to
"'self-destruc[tJ,'" 459 U. S., at 61, despite the fact that the
earlier-filed notice had "vested" the Court of Appeals with
"jurisdiction." Were the same principle to apply in the
agency/court context, then the reconsideration motion filed on Day
70 would cause the earlier filed petition for review, filed on Day
50, to "self-destruct," leaving nothing for the court of appeals to
consolidate with an eventual appeal from an agency denial of a
reconsideration motion (on Day 100).
Griggs, however, does not apply in the agency/court
context. This Court explicitly rested its decision in
Griggs
upon the fact that a specific Federal Rule of Appellate Proce-
412
dure, Rule 4(a)(4), provides for the "self-destruction." That
Rule says that upon the filing of, say, a Rule 59 motion to amend a
district court judgment, a "notice of appeal filed before the
disposition of
[e. g., that Rule 59 motion] shall have no
effect." By its terms, Rule 4(a)(4) applies only in the court/court
context; and, to my knowledge, there is no comparable provision
applicable in agency/court contexts such as this one. In the
absence of such a provision,
Griggs explicitly adds that the
"district courts and courts of appeals
would both have had the
power to modify the same judgment," 459 U. S., at 60 (emphasis
added)-as I believe the agency and the Court of Appeals have
here.
I recognize that at least one Court of Appeals has adopted an
agency/court rule analogous to the "self-destruct" rule set forth
in Rule 4(a)(4).
Wade v.
FCC, 986
F.2d 1433, 1434 (CADC 1993)
(per curiam); see also
Losh v.
Brown, 6 Vet. App. 87, 89 (1993). But see
Berroteran-Melendez v.
INS, 955
F.2d 1251, 1254 (CA9 1992) (court retains jurisdiction when
motion to reopen is filed after the filing of a petition for
judicial review);
Lozada v.
INS, 857 F.2d
10, 12 (CA1 1988) (court retained jurisdiction over petition
for review notwithstanding later filed motion to reopen, but held
case in abeyance pending agency's decision on the motion). That
court's conclusion, however, was based upon a single observation:
that "[t]he danger of wasted judicial effort that attends the
simultaneous exercise of judicial and agency jurisdiction arises
whether a party seeks agency reconsideration before, simultaneous
with, or after filing an appeal."
Wade, supra, at 1434
(citations omitted) (referring to the danger that the agency's
ruling might change the order being appealed, thereby mooting the
appeal and wasting any appellate effort expended). While this
observation is true enough, it does not justify the "self-destruct"
rule, because it fails to take into account other important
factors, namely, (a) the principle that jurisdiction, once vested,
is generally not divested, and (b) the fact that, in some cases
(say, when
413
briefing and argument already have been completed in the court
of appeals) judicial economy may actually weigh
against
stripping the court of jurisdiction. On this last point, it is
significant that under the Federal Rules, the motions to revise or
reopen court judgments that cause an earlier filed appeal to
"self-destruct" must be filed within a few days after the entry of
judgment. See,
e. g., Fed. Rule Civ. Proc. 4(a)(4)
(10 days). The agency rules before us, in contrast, permit a motion
for reconsideration (or reopening) well after the entry of the
agency's final order. See 8 CFR § 3.8(a) (1994) (no time limit on
motion for reconsideration filed with BIA). See also,
e.
g., 10 CFR § 2. 734(a)(1) (1995) (Nuclear Regulatory
Commission may consider untimely motion to reopen where "grave
issue" raised). This timing difference means that it is less likely
in the court/court context than in the agency/court context that
"self-destruction" of an earlier filed notice of appeal would
interrupt (and therefore waste) a court of appeals review already
well underway. Consequently, this Court should not simply assume
that the court/court rule applies in the agency/court context.
The majority ultimately says we ought not decide whether the
"self-destruct" rule applies in the agency/court context.
Ante, at 397, 404. But, the decision cannot be avoided. That
is because the
majority's basic argument-that a tolling rule
would deprive the consolidation subsection of meaning-depends upon
the assumption that the "self-destruct" rule does apply. And, for
the reasons stated above, that assumption is not supported by any
statutory or rule-based authority.
Because this matter is so complicated, an analogy to the
court/court context may help. In that context, in a normal civil
case, a losing party has 30 days to file an appeal (60, if the
Government is a party). Fed. Rule App. Proc. 4(a)(1). The Rules
then distinguish between two kinds of reconsideration motions:
those filed within 10 days (including motions for relief from
judgment under Federal Rule of Civil Proce-
414
dure 60(b)), which toll the time for appeal, and those filed
after 10 days (in the main, other Rule 60(b) motions), which do not
toll the time for appeal. See Fed. Rule App. Proc. 4(a)(4). When a
party files a motion of the first sort (which I shall call an
"immediate" reconsideration motion), a previously filed notice of
appeal "self-destructs."
Ibid. When a party files a motion
of the second sort (which I shall call a "distant" reconsideration
motion), a previously filed notice of appeal remains valid. A
complex set of rules creates this system, and lawyers normally
refer to those rules in order to understand what they are supposed
to do. See Fed. Rule App. Proc. 4(a) (and Rules of Civil Procedure
cited therein).
Agency reconsideration motions are sometimes like "immediate"
court reconsideration motions, filed soon after entry of a final
order, but sometimes they are like "distant" reconsideration
motions, filed long after entry of a final order. (Petitioner in
this case filed his motion 35 days after entry of an order that he
had 90 days to appeal.) The problem before us is that we lack
precise rules, comparable to the Federal Rules of Appellate and
Civil Procedure, that distinguish (for appeal preserving purposes)
between the "immediate" and the "distant" reconsideration motion.
We therefore must read an immigration statute, silent on these
matters, in one of three possible ways: (1) as creating rules that
make Federal Rules-type distinctions; (2) in effect, as analogizing
an agency reconsideration motion to the "distant" court
reconsideration motion (and denying tolling); or (3) in effect, as
analogizing an agency reconsideration motion to the "immediate"
court reconsideration motion (and permitting tolling).
The first possibility is a matter for the appropriate Rules
Committees, not this Court. Those bodies can focus directly upon
the interaction of reconsideration motions and appellate time
limits; they can consider relevant similarities and differences
between agency/court and court/court appeals; and they can consider
the relevance of special, immigration-
415
related circumstances, such as the fact that the filing of a
petition for review from a "final" deportation order automatically
stays deportation, INA § 106(a)(3), 8 U. s. C. § l105a(a)(3) (1988
ed., Supp. V). The second possibility (that adopted by the
majority) creates a serious risk of unfair loss of a right to
appeal, because it is inconsistent with
Locomotive Engineers
(thereby multiplying complexity). And, it has no basis in the INA,
which generally incorporates the procedures of the Hobbs Act and
the text and history of which simply do not purport to make an
exception denying tolling. The third possibility, in my view, is
the best of the three, for it promotes uniformity in practice among
the agencies; it is consistent with the Hobbs Act, whose procedures
the INA generally adopts; and it thereby helps to avoid inadvertent
or unfair loss of the right to appeal.
The upshot is that
Locomotive Engineers, Griggs, the
language of the immigration statute before us, the language of the
Federal Rules, and various practical considerations together argue
for an interpretation of INA § 106(a) that both (1) permits the
filing of a motion for reconsideration to toll the time for
petitioning for judicial review (when no petition for review has
yet been filed), and (2) permits court review that has already
"vested" in the court of appeals to continue there (when the
petition for review was filed prior to the filing of the motion for
reconsideration). This interpretation simply requires us to read
the language of the IN A as this Court read the Hobbs Act in
Locomotive Engineers. It would avoid creating any "Hobson's
choice" for the alien, cf.
ante, at 398-399, for an alien
could both appeal (thereby obtaining an automatic stay of
deportation, INA § 106(a)(3), 8 U. S. C. § l105a(a)(3)), and then
also petition for reconsideration. And, it would avoid entrapping
the unwary lawyer who did not immediately file a petition for court
review, thinking that a reconsideration petition would toll the
appeal time limit as it does in other agency/court contexts.
416
This approach does not undermine Congress' goal of expediting
the deportation-order review process. Although the court of appeals
might postpone decision of an appeal pending the agency's decision
on a later filed motion to reopen or reconsider, it need not do so.
If the motion is frivolous, or made for purposes of delay, the INS
can call that fact to the court's attention. And, of course, the
agency can simply decide the motion quickly. The alien could
prevent the court of appeals from acting by not filing an appeal
from the original order, but, instead (as here) simply filing a
reconsideration motion. That motion would toll the time for taking
an appeal. But, the fact that the alien would lose the benefit of
the automatic stay would act as a check on aliens filing frivolous
reconsideration motions (without filing an appeal) solely for
purposes of delay.
The majority, and the parties, compare and contrast the tolling
and nontolling rules in various court-efficiency and delay-related
aspects. But, on balance, these considerations do not argue
strongly for one side or the other. When Congress amended the INA
in 1990 (adding, among other things, the consolidation subsection)
it did hope to diminish delays. But, the statute explicitly set
forth several ways of directly achieving this objective. See,
e. g., Immigration Act of 1990, § 545(a), 104 Stat.
5063 (creating IN A § 242B(d), 8 U. S. C. § 1252b(d), directing the
Attorney General to issue regulations providing for summary
dismissal of, and attorney sanctions for, frivolous administrative
appeals); § 545(b)(1) (reducing time for petitioning for review
from 6 months to 90 days); § 545(d)(1) (directing the Attorney
General to issue regulations limiting the number of motions to
reopen and to reconsider an alien may file and setting a maximum
time period for the filing of such motions); § 545(d)(2) (directing
the Attorney General to do the same with respect to the number and
timing of administrative appeals). Significantly, the statute did
not list an antitolling rule as one of those ways. At the same
time, Congress enacted certain
417
measures apparently designed to make the deportationorder review
process more efficient. See,
e. g., § 545(d)(2)
(asking the Attorney General to issue regulations specifying that
the administrative appeal of a deportation order must be
consolidated with the appeal of all motions to reopen or reconsider
that order; providing for the filing of appellate and reply briefs;
and identifying the items to be included in the notice of
administrative appeal). In light of these last mentioned
provisions, the consolidation subsection would seem consistent with
Congress' purposes in 1990 even without an implicit no-tolling
rule.
Indeed, the Attorney General has construed one of these last
mentioned 1990 amendments as authorizing, in a somewhat analogous
situation, a tolling provision roughly similar to that in
Locomotive Engineers. In § 545(d)(2) of the 1990 Act,
Congress asked the Attorney General to issue regulations with
respect to "the
consolidation of motions to reopen or to
reconsider [an Immigration Judge's deportation order] with the
appeal [to the BIA] of [that] order." 104 Stat. 5066 (emphasis
added). In response, the Attorney General has proposed a regulation
saying, among other things, that "[a] motion to reopen a decision
rendered by an Immigration Judge ... that is pending when an appeal
[to the BIA] is filed ... shall be deemed a motion to remand [the
administrative appeal] for further proceedings before the
Immigration Judge .... Such motion ... shall be consolidated with,
and considered by the Board [later] in connection with, the appeal
to the Board .... " 59 Fed. Reg. 29386, 29388 (1994) (proposed new
8 CFR § 3.2(c)(4)). See also 59 Fed. Reg., at 29387 (proposed new §
3.2(b) (parallel provision for motions to reconsider)). This
approach, which is comparable to the
Locomotive Engineers
tolling rule, would govern the interaction of administrative
appeals and motions to reopen the decision of an Immigration Judge.
It seems logical that Congress might want the same rule to govern
the analogous situation concerning the interaction of petitions for
judicial
418
review and motions to reconsider or reopen a decision of the
BIA.
One final point. The INS argues that the Court should defer to
one of its regulations, 8 CFR § 243.1 (1994), which, it says,
interprets IN A § 106(a) as eliminating the tolling rule. See,
e. g., Shalala v.
Guernsey Memorial Hospital, ante,
at
94-95; Chevron U. S.
A. Inc. v.
Natural
Resources Defense Council, Inc., 467 U. S. 837, 843
(1984). The regulation in question, however, says nothing about
tolling. To the contrary, it simply defines "final order of
deportation," using language very similar to the language this
Court, in
Locomotive Engineers, interpreted as embodying the
tolling rule. Compare the regulation here at issue, 8 CFR § 243.1
(1994) ("[A]n order of deportation ... shall become final upon [the
BIA's] dismissal of an appeal" from the order of a single
immigration judge), with the language at issue in
Locomotive
Engineers, 49 U. S. C. § 10327(i) ("[A]n action of the
[Interstate Commerce] Commission ... is final on the date on which
it is served"). A lawyer reading the regulation simply would not
realize that the INS intended to create an unmentioned exception to
a critically important technical procedure. Moreover, the INS
itself has apparently interpreted the regulation somewhat
differently at different times. Compare Brief for Respondent 13-17
(arguing that the regulation embodies a no-tolling rule) with
Chu v.
INS, 875 F.2d
777, 779 (CA9 1989) (in which INS argued that a reconsideration
motion makes the initial order nonfinal, and thereby implies
tolling). See,
e. g., Thomas Jefferson Univ. v.
Shalala, 512
U. S. 504, 514-515 (1994) (inconsistent interpretation entitled
to "considerably less deference" than consistently held agency
view). For these reasons, I do not accept the INS' claim that its
silent regulation creates a "no tolling" rule.
I would reverse the judgment of the Court of Appeals.
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