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

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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

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