514 U.S. 386 (1995), 93-1199, Stone v. INS

Docket Nº:No. 93-1199
Citation:514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465, 63 U.S.L.W. 4294
Case Date:April 19, 1995
Court:United States Supreme Court

Page 386

514 U.S. 386 (1995)

115 S.Ct. 1537, 131 L.Ed.2d 465, 63 U.S.L.W. 4294




No. 93-1199

United States Supreme Court

April 19, 1995

Argued November 28, 1994



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).


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

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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

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afterwards—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.


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

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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 v.

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INS, 950 F.2d 711, 713 (CA11 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.




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