408
Breyer, J., dissenting
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. § 1105a(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 review-deadline/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
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