Stone v. Immigration and Naturalization Service - Oral Argument - November 28, 1994

Stone v. Immigration and Naturalization Service

Media for Stone v. Immigration and Naturalization Service

Audio Transcription for Opinion Announcement - April 19, 1995 in Stone v. Immigration and Naturalization Service

Audio Transcription for Oral Argument - November 28, 1994 in Stone v. Immigration and Naturalization Service

William H. Rehnquist:

We'll hear argument next in Number 93-1199, Marvin Stone v. The Immigration & Naturalization Service.

Mr. Morrison.

Alan B. Morrison:

Mr. Chief Justice and may it please the Court:

In March 1987, the respondent here issued an order to show cause to petitioner as to why he should not be deported from the United States.

Approximately 10 months later, after a hearing, the immigration judge ordered petitioner deported, and petitioner then filed an appeal with the Board of Immigration Appeals, proceeding pro se with a brief of approximately 13 pages.

Three-and-a-half years later, the Board of Immigration Appeals affirmed the order of deportation on July 26, 1991, in a brief opinion dealing with the issues presented.

Less than a month later, acting pursuant to the rules of the Immigration Service, petitioner filed a motion for reconsideration or reopening.

He later filed a very short brief, and the Immigration Service attorney filed a reply in the middle of October.

There the matter remained until the 3rd day of February, 1993, at which time the Board of Immigration Appeals denied the motion for reconsideration and reopening in an order that ran a page and a little bit onto the second page, most of which was boiler plate response to the motion.

Petitioner then filed a petition for review in the United States Court of Appeals for the Sixth Circuit on the 16th February, less than 2 weeks after the order came down.

He filed his brief shortly thereafter, and the Government filed its brief in the end of April 1993, a lengthy brief of some 33 pages, 14 of which dealt with the merits of the challenge.

In that brief, the Government said for the first time to petitioner, you are too late.

You should have filed your petition for review shortly within the 90 days after July 1991.

Oral argument was held shortly thereafter, and in early January the Court of Appeals for the Sixth Circuit issued its ruling.

It concluded that the petition for review was timely with respect to the denial of the motion for reopening or reconsideration, but it was not timely with respect to the original decision, even though the motions were then pending before the Immigration Service.

It agreed with the Government that the failure to file within the 90 days provided by the statute made the filing too late when it came in February 1993, and the question presented before this Court, on which the courts of appeals are badly divided, is, is that decision correct?

The Government recognizes that under the usual rule in administrative law and judicial review, that a timely filed motion for reconsideration or reopening renders the decision of the agency not final, such that not only need not a petitioner seek judicial review at that time, but the petitioner may not seek judicial review at that time.

And the reason for that rule is a sound one of judicial economy.

The courts should not become involved in deciding cases if the agency which has the matter before it has the ability and the power and under its rules the authority to reconsider the decision at that time.

Antonin Scalia:

I take it--

--I have two questions, Mr. Morrison.

Number 1, what happens if the petition for judicial review is filed first, and then the petitioner decides, I'll ask for a rehearing.

What happens then?

Alan B. Morrison:

It is my understanding that the usual rule is that the filing of a petition for judicial review takes the matter into court, and that it does not divest the agency of the authority to reconsider, although it does not stop the court from considering the matter, and in that circumstance it is up to the court to decide whether it will choose to proceed with the case or allow it not to proceed.

Antonin Scalia:

Which the statute here... an option that the statute here eliminates.

Alan B. Morrison:

No, Your Honor, I don't--

Antonin Scalia:

It says that they shall be consolidated in such a situation--

Alan B. Morrison:


It only says they shall be consolidated, as I read it, if there are two or more petitions for review.

That is to say, it does not direct the court of appeals of the first case to hold it, and my reading of the cases is that some courts more or less automatically hold them if they are told.