us supreme court: 06-1181
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Official - Subject to Final Review
IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - - - x
SAMSON TAIWO DADA,
Petitioner
:
:
v. : No. 06-1181
MICHAEL B. MUKASEY,
ATTORNEY GENERAL.
:
:
- - - - - - - - - - - - - - - - - x
Washington, D.C.
Monday, January 7, 2008
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 11:06 a.m.
APPEARANCES:
CHRISTOPHER J. MEADE, ESQ., New York, N.Y.; on
Behalf of the Petitioner.
EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General,
Department of Justice, Washington, D.C.; on behalf
the Respondent.
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P R O C E E D I N G S
(11:06 a.m.)
CHIEF JUSTICE ROBERTS: We'll hear argument
next in case 06-1181, Dada v. Mukasey.
Mr. Meade.
ORAL ARGUMENT OF CHRISTOPHER J. MEADE
ON BEHALF OF THE PETITIONER
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
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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?
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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 --
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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
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-- 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
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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
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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 --
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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
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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
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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.
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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 --
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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
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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
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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.
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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
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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
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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
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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.
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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
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CHIEF JUSTICE ROBERTS: Thank you,
Mr. Meade.
Mr. Kneedler.
ORAL ARGUMENT OF EDWIN S. KNEEDLER
ON BEHALF OF THE RESPONDENT
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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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 --
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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
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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
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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
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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
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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 --
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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
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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?
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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
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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
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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
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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.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Kneedler.
Mr. Meade, you have five minutes remaining.
REBUTTAL ARGUMENT OF CHRISTOPHER J. MEADE
ON BEHALF OF THE PETITIONER
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
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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
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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
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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.
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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.
(Whereupon, at 12:07 p.m., the case in the
above-entitled matter was submitted.)
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