Stone v. INS, 514 U.S. 386, 5 (1995)

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390

STONE v. INS

Opinion of the Court

v. 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.

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. 1105a(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 1101(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.

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