William v. INS

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60422
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HANY E. WILLIAM,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
July 17, 2000
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Hany William petitions for review of an
order of the Board of Immigration Appeals
(“BIA”) dismissing, as untimely, his motion to
reopen deportation proceedings. Concluding
that the interpretation by the Immigration and
Naturalization Service (“INS”) of its regula-
tion is not unreasonable, we deny the petition
for review and affirm the order of the BIA.
I.
William, an Egyptian citizen, entered the
United States on a student visa in 1992. In
1994, he was issued an order to show cause
why he should not be deported for failing to
maintain the conditions of his non-immigrant
status. At the administrative hearing, he con-
ceded his deportability but requested asylum.

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An immigration judge denied his application
for relief and ordered deportation. The Board
of Immigration Appeals (“BIA”) affirmed, dis-
missing William’s direct appeal on Septem-
ber 24, 1997.
William filed a motion to reconsider on Oc-
tober 22, 1997, requesting withholding of de-
portation based on his change in marital status
and his wife’s eligibility for citizenship. The
BIA construed his request as both a motion to
reconsider its dismissal of his appeal and a
motion to reopen to allow him to apply for ad-
justment of status based on the new fact of his
marriage to a lawful permanent resident.1 The
BIA denied the motion on April 30, 1998.
William filed a motion to reopen on July 28,
1998, attaching his marriage certificate and
noting that his wife had completed the natural-
ization interview and tests and would be sworn
in as a citizen in a few weeks. He requested
permission to adjust his status once his wife
was sworn in.
William submitted that his motion to reopen
was timely because it was filed within ninety
days of the denial of his motion to reconsider.
The BIA disagreed, dismissing his motion to
reopen as untimely and concluding that it
should have been filed within ninety days of
the dismissal of his direct appeal.
II.
INS regulations governing motions to re-
open provide, in pertinent part, that “a party
may file only one motion to reopen . . . and
that motion must be filed no later than 90 days
after the date on which the final administrative
decision was rendered in the proceeding
sought to be reopened.” 8 C.F.R. § 3.2(c)(2).
William’s petition for review presents an issue
of first impression: whether the decision in
William’s original appeal to the BIA, as distin-
guished from the subsequent denial of his mo-
tion to reconsider, was “the final administra-
tive decision . . . in the proceeding to be re-
opened.” If the dismissal of his original appeal
qualifies, then his motion to reopen was un-
timely. But if the denial of his motion to re-
consider is the final decision under § 3.2(c)(2),
the motion to reopen was timely.
William argues that under Stone v. INS, 514
U.S. 386 (1995), the denial of a motion to re-
consider is a final order of deportation and that
the denial of a motion to reconsider is a final
administrative decision from which the ninety-
day clock should start running. Thus, he con-
cludes that the BIA’s construction of the
regulation is inconsistent with its plain mean-
ing and therefore is not entitled to deference.
The INS responds by also citing Stone, in
which the Court decided whether the filing of
a motion to reconsider or reopen tolls the time
during which judicial review of the underlying
deportation order may be sought. The Court
held that an order of deportation is final, that
a denial of a motion to reconsider is a second
final order, and that the time limits for seeking
judicial review of a final order apply separately
to each final order. See id. at 395.
Thus, the INS argues that under Stone,
both the denial of the motion to reconsider and
1 This ruling motivated the INS’s argument that
because the current motion was William’s second
motion to reopen, he was foreclosed from making
that motion under 8 C.F.R. § 3.2(c)(2)’s require-
ment that he could file only one motion to reopen.
But because the BIA did not address this argument
in its decision, and because the INS does not
reassert that argument on appeal, we do not con-
sider it.

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the dismissal of the appeal of the deportation
order should be considered “final administra-
tive decisions” for purposes of § 3.2(c)(2).
The INS reasons further that because Wil-
liam’s motion to reopen should relate to “the
proceeding to be reopened,” it is the underly-
ing deportation decision, and not the denial of
the motion to reconsider, that is being chal-
lenged. This is so because William seeks to
introduce new evidence that he contends will
affect his deportationSSi.e., that his wife is go-
ing to become a citizen.
This evidence could not be introduced in a
proceeding for a motion to reconsider, the INS
notes, because that type of motion challenges
only the legal analysis employed by the immi-
gration judge. The deportation proceeding is
the proper forum for this new evidence, be-
cause there the immigration judge can take
into account any additional factors supporting
discretionary relief from deportation. That is
to say, because an alien who seeks to intro-
duce new evidence can reopen only a proceed-
ing that once was open for the receipt of evi-
dence, the motion to reopen must look back to
an evidentiary proceeding rather than to the
denial of reconsideration.
William tries to refute this construction by
arguing that he seeks to reopen all deportation
“proceedings” related to his case, which there-
fore would include both the original deporta-
tion decision and the denial of his motion to
reconsider. Although this is not an implausible
reading of the statute, the better interpretation
is that the language of § 3.2(c)(2) is not so
broad and, instead, refers only to a single “pro-
ceeding” that a party may seek to reopen, and,
again, the government reasonably argues that
the denial of a motion to reconsider cannot be
“reopened” where it was never open to the
type of new evidence William seeks to intro-
duce.
Thus, while the regulation’s use of “final
administrative decision” is facially unambigu-
ous, it invites, in the context of the next
phrase, “rendered in the proceeding sought to
be reopened,” at least two reasonable interpre-
tations. Therefore, the provision is, at most,
ambiguous as to the question presented in this
appeal, so we defer to the INS’s reasonable in-
terpretation of its own regulation. See Ghas-
san v. INS, 972 F.2d 631, 637 (5th Cir. 1992).
William avers that we should not defer, be-
cause the INS’s interpretation is plainly un-
reasonable. This is so, he asserts, because the
term “final” can only mean the “last” adminis-
trative decision in his case.
Although William’s construction is not un-
reasonable, neither is the INS’s, because “final
administrative decision” refers to “the pro-
ceeding sought to be reopened.” It is possible
that, as William suggests, this phrase refers to
the broader deportation process, but we can-
not say that the INS’s determination that the
phrase refers to the particular stage of the
process sought to be reopened is “plainly
erroneous or inconsistent with the regulation.”
Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512 (1994).
Accordingly, the petition for review is
DENIED, and the order of the BIA is AF-
FIRMED.

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