418
Breyer, J., dissenting
review and motions to reconsider or reopen a decision of the BIA.
One final point. The INS argues that the Court should defer to one of its regulations, 8 CFR § 243.1 (1994), which, it says, interprets INA § 106(a) as eliminating the tolling rule. See, e. g., Shalala v. Guernsey Memorial Hospital, ante, at 94-95; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). The regulation in question, however, says nothing about tolling. To the contrary, it simply defines "final order of deportation," using language very similar to the language this Court, in Locomotive Engineers, interpreted as embodying the tolling rule. Compare the regulation here at issue, 8 CFR § 243.1 (1994) ("[A]n order of deportation . . . shall become final upon [the BIA's] dismissal of an appeal" from the order of a single immigration judge), with the language at issue in Locomotive Engineers, 49 U. S. C. § 10327(i) ("[A]n action of the [Interstate Commerce] Commission . . . is final on the date on which it is served"). A lawyer reading the regulation simply would not realize that the INS intended to create an unmentioned exception to a critically important technical procedure. Moreover, the INS itself has apparently interpreted the regulation somewhat differently at different times. Compare Brief for Respondent 13-17 (arguing that the regulation embodies a no-tolling rule) with Chu v. INS, 875 F. 2d 777, 779 (CA9 1989) (in which INS argued that a reconsideration motion makes the initial order nonfinal, and thereby implies tolling). See, e. g., Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 514-515 (1994) (inconsistent interpretation entitled to "considerably less deference" than consistently held agency view). For these reasons, I do not accept the INS' claim that its silent regulation creates a "no tolling" rule.
I would reverse the judgment of the Court of Appeals.
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