Velazquez v. Bondi

Oral argument transcript · No. 23-929 · October Term 2024 · argued November 12, 2024 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

Gerard J. Cedrone, Boston, Massachusetts, for the petitioner
Anthony A. Yang, Assistant to the Solicitor General, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 23-929, Velazquez versus Garland. Mr. Cedrone. ORAL ARGUMENT OF GERARD J. CEDRONE ON BEHALF OF THE PETITIONER

Gerard J. Cedrone: Thank you, Mr. Chief Justice, and may it please the Court: The 60-day time period in the voluntary departure statute works like any routine legal time period. When the last day falls on a weekend or holiday, the period continues to run until the next business day. Congress would have expected people to read the statute this way. In 1996, common law principles, case law, established rules and regulations, and years of consistent practice all pointed to that interpretation. If Congress had meant to deviate from that traditional understanding, it would have said so. Even the government now acknowledges that other deadlines in the same section of IIRIRA follow the traditional rule in light of a Official 1 long-standing immigration regulation defining the word "day." So the only way to adopt the government's interpretation is to believe that Congress used two different meanings of the word "day" in the same section of the same statute. There's simply no indication that Congress took that kind of split approach. The government's interpretation would also spell chaos for regulatory definitions and deadlines. In the government's view, even though Section 1001.1(h) provides a single definition for the word "day," that -- the immigration regulations actually use that term to mean different things throughout. And so the only way to tell which deadline follows which time calculation rule is to trace each deadline's history back through earlier and earlier versions of the code and Code of Federal Regulations. Answering a question as simple as does my deadline fall on Saturday or Monday shouldn't depend on this kind of complex historical investigation, especially when deportation's on the line. The default rule for weekends and holidays exists precisely to avoid this kind of Official 1 case-by-case guesswork. The government -- identifies no reason and certainly no reason grounded in the text of the statute to depart from that traditional rule. The Court should read Section 1229c like any other statute and follow the usual rule for weekends and holidays. I welcome the Court's questions.

Justice Thomas: (a) speaks in terms of a removal -- final removal order. Is there one involved in this case?

Gerard J. Cedrone: There is, Your Honor. And I would make two points. First, as you point out, subsection (a)(1) speaks in terms of judicial review of a final order of removal. That's exactly what we're seeking. If we win in this case, the final order of removal that binds our client will say one thing. If we lose, it will say another. And the second point is this Court has long recognized that BIA decisions on reopening and reconsideration are separate final orders that require a separate petition and are separately reviewable in the courts of appeals. Official

Justice Thomas: It seems that you're saying that a collateral consequence to a ruling on this is a part of the final order. How is that?

Gerard J. Cedrone: So the voluntary --

Justice Thomas: The order itself is not here, right?

Gerard J. Cedrone: I -- I disagree, Your Honor, in two respects. So, one, as I just pointed out, the Court has consistently explained that a reconsideration or reopening decision is --

Justice Thomas: I thought we were talking about the 60 -- whether there are 60 days or 62 days to leave for -- voluntarily.

Gerard J. Cedrone: That's right, Your Honor. And the voluntary departure order at pages 42a and 43a of the Petition Appendix spell out the consequences if, on the one hand, our client files a timely motion to reopen or, on the other hand, if our client fails to depart the country or files an untimely motion. There are two alternate orders of removal waiting in the wings, one with harsh penalties, one without, and this timeliness Official 1 determination directly affects which of those alternate orders of removal will take effect.

Chief Justice Roberts: You argue, and just did, that this is a very simple question. But a good part of your argument is taking regulatory provisions and applying them to the statute. You say that that is the appropriate prism through which to read the statute. The prism test doesn't sound very straightforward and clear to me.

Gerard J. Cedrone: What you have in this case is everything pointing in the same direction. So start with the regulation. Section 1001.1 provides a definition of "day" that has governed since the creation of the INA and that remained unchanged for a decade before this particular provision passed. And the government even acknowledges now that other deadlines in the same section of IIRIRA follow that definition. So somebody picking up the statute in 1996 would have read the statute in light of that definition. But it's not just the regulation. As we point out, that regulation codifies an earlier practice that's reflected in Civil Rule Official 1 6(a), which this Court and the BIA have looked to. That rule itself codifies earlier decisions, like this Court's decision in Street, that recognized a general principle that when a power can be exercised up until a certain day -- if that day is a Sunday or holiday, it can be exercised the next business day. And those decisions recognized an even -- or -- or encapsulated --

Chief Justice Roberts: The --

Gerard J. Cedrone: -- an even --

Chief Justice Roberts: I'm sorry, go ahead.

Gerard J. Cedrone: Encapsulated an even earlier common law principle. And so somebody reading this statute in '96 would have had no reason to deviate from all of those things, pointing to the same interpretation.

Chief Justice Roberts: But your argument evolves, right? I mean, as I read your brief anyway, the Sunday provision was pretty clear early on, but then Saturday kind of crept in there somewhere along the way. And so, usually, we think of statutory -- timing deadlines as not sort of flexible in that way. Official

Gerard J. Cedrone: Two points, Your Honor. First, I -- I would just return to the regulation and say that that definition, which was in place for years before this statute passed, encapsulated Saturday, and that's codified --

Chief Justice Roberts: Right, but we're talking about the statute, so --

Gerard J. Cedrone: Right, and I think that regulation encapsulates an earlier principle that has not changed over time. So the way I would frame the principle generally is that there are certain days, you can call them -- certain legally recognized days of rest. You can call them non-business days. You can use the Latin term dies non juridicus. That principle recognizes that when a deadline or time period expires on one of those legally recognized days of rest, it carries over to the next day. But the days that are legally recognized days of rest can change over time. And so, with respect to Saturday, of course, there was a change in the 20th century as Saturday came to be recognized as a day that's Official 1 akin to Sunday, on par with Sunday. But the prin- -- the underlying principle that --

Justice Sotomayor: Counsel, why are you going so far? You don't need the common law. Common law provides a background for what Congress was doing when it passed this law, correct?

Gerard J. Cedrone: Yes.

Justice Sotomayor: And your answer is that when a word comes with old soil, you transport the old soil.

Gerard J. Cedrone: That's right.

Justice Sotomayor: All right. And the old soil here, even according to the government, was that "day" was defined according to the regulation.

Gerard J. Cedrone: That's right.

Justice Sotomayor: All right. Now the question is do we follow the government's new argument that there's somehow a difference in how "day" is defined with respect to court obligations or -- I -- I don't know where they get the word "substantive" from -- or substantive obligations, correct? Official

Gerard J. Cedrone: That's right.

Justice Sotomayor: But, if I look at the old soil, why don't I look at the law itself, the INA law, and when Congress wanted to talk about calendar days, it used "calendar day" instead of the word "day," correct? I'm looking at 8 U.S.C. 1228(b)(3), which has to do with the Attorney -- Attorney General not executing any order for -- for expedited removal until 14 calendar days have passed, correct?

Gerard J. Cedrone: I confess I'm not familiar with that particular provision, but our position generally is that Congress can deviate from this principle and it --

Justice Sotomayor: And something like this would be a clear deviation?

Gerard J. Cedrone: I think it probably would be.

Justice Sotomayor: All right. Now am I -- I want to go back to the jurisdictional question that Justice Thomas started with. The government didn't raise a jurisdictional -- this jurisdictional point before the Tenth Circuit, did it?

Gerard J. Cedrone: It did not. Official

Justice Sotomayor: And it raised it in its petition for opposition, but you didn't reply to it until your reply, correct?

Gerard J. Cedrone: That's correct.

Justice Sotomayor: Has this percolated among other courts yet?

Gerard J. Cedrone: I -- I don't believe this particular issue -- well, I should say this. I don't think it's really disputed that there's jurisdiction --

Justice Sotomayor: I agree --

Gerard J. Cedrone: -- in this case, so no.

Justice Sotomayor: -- because, after Mata, we said motions to reconsider have an independent jurisdictional basis, correct?

Gerard J. Cedrone: That's right.

Justice Sotomayor: So hard to think why anybody would think they didn't have jurisdiction. But, if we were to accept the government's ruling, do you know what other consequences this would have?

Gerard J. Cedrone: I think, if you accept the government's view of jurisdiction in this case, it would be either a real sea change for immigration law because it would mean that Official 1 reopening and reconsideration decisions aren't separately reviewable, as this Court has consistently pointed out in Reyes Mata, in Kucana against Holder and other cases --

Justice Sotomayor: What --

Gerard J. Cedrone: -- or --

Justice Sotomayor: -- what other -- the government says this is a one-off case -- I don't know whether we would have granted cert if we knew it was one-off to start with -- that everybody else appeals the order to remove, but you didn't. So I guess my question is, assuming we rule the way the government wants us to, do we know fully the consequences of that?

Gerard J. Cedrone: I think it would be a lot of make-way arguments in the courts of appeals. The government doesn't dispute, nor could it, that courts of appeals have jurisdiction to review --

Justice Sotomayor: Counsel, stop going to the substance. I'm trying to ask you a question. Given that this is a new issue before us, isn't the best way to deal with it is to let the court below address what consequences there Official 1 are --

Gerard J. Cedrone: I -- I --

Justice Sotomayor: -- to this jurisdictional issue?

Gerard J. Cedrone: I agree, the Court doesn't need to weigh into the jurisdictional issue beyond recognizing that this case falls within 1252(a)(1). I -- I do think there would be confusion if the Court were to side with the government because the government doesn't dispute that courts of appeals can review this exact issue. It just thinks you have to bundle it with other arguments. There's nothing in the text of the statute that requires it.

Justice Gorsuch: Well, I think, as I understood Justice Sotomayor, Mr. Cedrone, one of -- what she was asking you to talk about was what collateral consequences, errors that the government might make in a reopening petition that's denied that would be unreviewable. I mean, one consequence here would be say you were clearly within the 60 days, there was no doubt about it, and the government said Official 1 you weren't. That would be unreviewable, I think, on the government's jurisdictional theory because it wouldn't affect the order of -- it wouldn't affect the removability of your client, even though it would impose a 10-year bar, outside the country, erroneously. Are there other such consequences like that that you can think of?

Gerard J. Cedrone: I think there are all sorts of things that get decided in reopening or reconsideration decisions that are distinct from removability but nevertheless go to the terms of your final order of removal. So people -- Congress contemplated that people would seek reopening often years after a final order of removal because of changed factual circumstances or other things. And under subsection (b)(9), the statute contemplates that all of these things will get funneled into a proceeding in the court of appeals. And so to say that there's -- that this should have been raised differently doesn't account for the fact that this is the proceeding in which these issues should be raised. Official 1 Turning --

Justice Barrett: Mr. Cedrone --

Gerard J. Cedrone: Oh.

Justice Barrett: -- can I ask you one question about jurisdiction and one question about the merits. On jurisdiction, Justice Sotomayor pointed out that this seems to be a one-off case. I just want to clarify with you -- and the government can speak to this too if the answer is different -- how often does it happen that someone like your client simply challenges the motion to reconsider and not the other -- the underlying order? Is -- is this very unusual so that this jurisdictional question wouldn't really frequently arise?

Gerard J. Cedrone: I -- I confess that I -- I don't have a sense of the -- the balance of that, other than to say that, as I was just describing, motions to reopen often come up years after the final order of removal and may involve questions of changed factual circumstances or other things that entitle you to relief from removal. And so I think, on the government's Official 1 view, this case is a one-off, not in that the government is taking the position that this issue is never reviewable, just that you have to bundle it in your petition with some sort of challenge, however slight, to your removability to seize the court of jurisdiction. And I don't see any support for that in the statute.

Justice Barrett: Okay. My question on the merits -- most of the time when we think about this, and as I understand the regulatory backdrop, when we're thinking about filing something, the reason why it gets bumped over to, say, a Monday from a Saturday is that the court's closed. But could your client have departed on a Saturday? It just -- that -- that strikes me as the difference here, that this isn't governing filing dates or something that you're doing. It's just saying that your authorization to be in the country expires, you know -- at that 60-day mark. And it's not that the court was closed. I mean, your client could have departed, right? Official

Gerard J. Cedrone: That's true. I can't dispute the factual premise that often somebody can get on a plane or drive across the border on a Saturday. This principle is deeper than that, and there are several indications that this principle is not just about court closures or filings. I think the best evidence of that is to go -- I'll start with the regulation and work outwards. So the regulatory definition of "day" in Section 1001.1 says that definition of "day," which builds in the traditional rule, applies to any action in immigration regulations. Even on the government's theory of how that deadline applies, that principle applies to things like getting married to maintain your visa status, regulatory deadlines for getting fingerprinted after you enter the country, regulatory deadlines for taking a citizenship test. So these are all things that are not filing, not court-related. Working outward from there, Rule 6(a), as we've pointed out, also applies to any applicable statute and any court order. And so that, of course, covers things like filing in Official 1 district court, but it also covers things -- we give examples at page 18 of our reply brief -- of injunctions that a court might enter imposing substantive obligations on a party. So say you're a defendant in a trade secrets suit. You're found liable. The court might enter an order at the end of the case saying: Defendant, you have 30 days to turn over the misappropriated property. Under Rule 6(a), that 30-day deadline clearly follows the traditional rule. And then working even outward from there, we have examples like -- at page 28 of our brief, cases like the Aetna case applying this traditional principle to deadlines under ERISA, which binds private parties, private plans, requires them to take all sorts of actions vis-à-vis each other outside the context of litigation. And then this Court's decision in Street, which applied this principle to a statute that sets time limits on the President's authority to take action, as we explain in the brief, that statute in Street is parallel to this statute. Section 1229c gives the Attorney Official 1 General the authority to grant voluntary departure and then places a time limit on it. The statute in Street worked similarly. The Court applied the traditional rule there. It should apply the traditional rule here.

Justice Alito: Counsel, you --

Justice Kagan: Just for this --

Justice Alito: -- counsel, you have an argument that there should be a rule that applies in all situations, and it just causes a lot of confusion if it's not uniform. I -- I get that. But put all of that aside. Can you think of any practical reason why Congress would have wanted to give a two-day extension when what's involved is something that can be done just as easily on a Saturday or a Sunday as a Monday? There were reasons for the rules about filing, because courts were closed. Some of the things that you mentioned are things that would be more difficult perhaps to accomplish on a weekend. Originally, perhaps the rule for Official 1 Sunday was based on religion. You might argue that it should be extended to Saturday if your counsel -- if your -- your client has a -- if that is that -- is -- is a holy day, a special day for your particular client. But I can't think of any practical reason why there should be a rule -- a different rule for departing the country.

Gerard J. Cedrone: Yeah. So I think there's two -- two practical reasons, one more substantive and one more procedural. This traditional rule, in our view, stems from a general principle that there are certain legally set-aside days where presumptively at least the government can't ask people to do stuff. And so the persistence of this rule, even in the face of 24/7 e-filing, shows that this is a principle that's deeper than just impracticability, and --

Justice Alito: Well, I mean, that's -- that doesn't strike me as a practical reason. Why can't they say: You've got to get out of the country in 60 days? You can get out of the country just as easily on a Saturday or a Sunday as you can on a Monday. Official

Gerard J. Cedrone: I'll mention just as an aside some of the amicus briefs go into the fact that it -- it may well be more difficult to travel on the weekends. But I guess putting that aside, the second practical reason, the procedural one, is that we're talking about deadlines with severe consequences. The question of how and when your deadline runs should be easily understood and easily calculated, especially when there are severe consequences. And on the government's view, you have to undertake a case-by-case determination for each deadline in the regulations and each deadline in the INA. Maybe I could give an example. So there's a 180-day deadline in the regulations, Section 1003.23, a 180-day for seeking relief from in absentia removal. That statutory dead -- that regulatory deadline doesn't cross-reference the statute. So you might think, if you pick up the regulation and pick up the definition, you know how it applies. But the government --

Justice Alito: Well, but that -- that -- in seeking relief, that -- that's Official 1 requiring you to file some sort of a document.

Gerard J. Cedrone: That's true, although, as my colloquy with Justice Barrett explained, there are other deadlines in the regulations, like things like getting married and getting fingerprinted. And the point is that on the government's view, even though that regulation -- regulatory deadline is facially clear, you need to go to the INA and see if there's a statutory analogue for that 180-day deadline, it turns out there is in Section 1229a. But even then you're not done. On the government's view, now you have to construct a family tree for the statutory deadline and the regulatory deadline and see which one came first. Only then can you figure out if your deadline is on a Saturday or Monday.

Justice Alito: Right. I may understand it. This is the argument for a uniform rule. It makes things -- it makes things simpler. So I -- I -- I get that. I get that.

Gerard J. Cedrone: Yeah, and I think --

Justice Sotomayor: Counsel, it's not Official 1 only that it's simpler, but the INA is filled with provisions like this where the individual's activities are tied to the government's activities, correct?

Gerard J. Cedrone: That's right.

Justice Sotomayor: And, here, Section 1302, going back to Justice Barrett's question in part, says that when someone's visiting the United States, if they're going to stay longer than 30 days, it says -- the provision states that noncitizens who remain in the U.S. for 30 days or longer must apply for registration and be fingerprinted before the expiration of such 30 days. So that's very clear like our 60 days here. Under the government's theory, I don't know whether they can be -- fingerprinted by the government on Saturday or Sunday. We'd have to figure that out, correct?

Gerard J. Cedrone: Right.

Justice Sotomayor: We'd have to figure out whether the agency is open for them to register on Saturday and Sunday, correct?

Gerard J. Cedrone: Right.

Justice Sotomayor: So these are the Official 1 practical difficulties. With respect to the issue here, yes, there's a obligation on the alien to depart, but there's also a responsibility tied to the motion to reopen, correct --

Gerard J. Cedrone: That's exact --

Justice Sotomayor: -- which is a court activity?

Gerard J. Cedrone: That's exactly right.

Justice Sotomayor: So it's not simply an obligation that's tied only to the individual. If the individual does something, then the government has an obligation to -- to dismiss their order of removal and give them additional time, correct?

Gerard J. Cedrone: That's right. And I think it's telling that the regulations tie this departure deadline to a filing deadline. It shows that in the government's view at least before, these things maybe aren't that different at all. But the confusion, as your questioning highlights, there are hundreds of instances of the word "day" in Title 8 of the Code of Federal Regulations and dozens, if not a couple hundred, Official 1 of instances in the INA. And the government's view that for each of those, not only -- that the statute and regulations require somebody for each of those to undertake this intricate analysis of statutory and legislative history just doesn't make sense, especially -- I mean, it does -- it's hard enough for lawyers to figure out in an individual case an individual deadline under the government's view, is it Saturday or Monday. The idea that pro se noncitizens --

Justice Kagan: Do you know --

Justice Alito: Are you seriously -- oh, no, go ahead.

Justice Kagan: No, go ahead.

Justice Alito: Do you seriously think that there are people in the position of your client who rely on this -- well, this is really important for me to get out of the country or -- or withdraw my -- my acquiescence in voluntary departure within 60 days, but, wow, I read this, so I've got another two days? I mean, seriously?

Gerard J. Cedrone: Seriously. And let me make three points. Official 1 (Laughter.)

Gerard J. Cedrone: So, first, there are plenty of immigration organizations that provide guidance to noncitizens about how deadlines apply. Secondly, that accords with --

Justice Alito: I mean, if you were providing advice, would you say, okay, you know, you've got the extra two days? Would you?

Gerard J. Cedrone: I -- I mean, if the government's position is adopted in this case, certainly not, but I think, in the absence of that, everything points --

Justice Alito: Well, with how, you know, the way things are -- were -- we at -- at the time when -- when this came into play, would you say, well, you've got the extra two days?

Gerard J. Cedrone: Yes, I would, and -- and let me make two other points. One is that for a noncitizen in immigration proceedings, even on the government's view, basically, every deadline up until this final order follows the traditional rule. So, if you're a noncitizen going through immigration proceedings, you know my brief is Official 1 due on a Saturday; that means it's due on a Monday. I need to file an appeal on a Saturday; that means it's due on a Monday. It's only this very last deadline that follows a different rule. So I do think that would be a trap for the unwary. And the last point I would make is that, yes, I think, when you have everything consistently pointing in the same way not just in the law, but the D.C. Circuit made this point in Sherwood, this rule is not just a lawyerly contrivance. It's also meant to capture the way that things work out in the world, in business, in society. And so just one concrete example. The motion that was filed in this case was sent by FedEx priority overnight on a Friday. That means it gets there Monday morning. And I'm not suggesting that anything in our case turns on the vagaries of FedEx's shipping policies. It's just to say that even in business, overnight on a Friday sometimes means Monday. This is a principle that applies across the board.

Justice Kagan: Do you know whether the government, in fact, applies this rollover Official 1 rule to anything that's not a filing deadline? I mean, you mentioned fingerprinting. You mentioned marriage. But what is the government's policy as to anything that's not a file -- filing deadline?

Gerard J. Cedrone: I think the AILA amicus brief gets into this most clearly. It provides examples of immigration judges applying this day in and day out. I think the -- most of the examples we've collected are actually in the voluntary departure context, but I -- I think there are other examples in that brief as well of situations where this applies. And I should point out this is -- in the voluntary departure context, for example, it's a 60-day statutory ceiling. So an immigration judge in an individual case could, for example, set the deadline earlier or set the deadline on a date certain. This is just about the rule that applies, absent another indication.

Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further? Justice Alito? Official 1 Justice Sotomayor? Justice Gorsuch, anything? No? Justice Kavanaugh? Justice Barrett? And Justice Jackson?

Justice Jackson: Can I just ask, so it's a trap for the unweary because the filing of the motion triggers the extension, is that right?

Gerard J. Cedrone: In our view, the departure deadline and the motion deadline move together. So it's -- it's -- the 60-day voluntary departure deadline?

Justice Jackson: Yeah.

Gerard J. Cedrone: On the government's view, operates differently than every other deadline that's --

Justice Jackson: Yeah. No, I understand that, but I guess I was -- I was trying to -- I -- I hear Justice Alito raising the point that if a person is told they have 60 days to get out of the country, when we're getting to day 58, 59, or whatever, they should be ready to go. And so are they getting two extra days or, like, what is happening? Official 1 And I guess your response is that the way that the rules operate, if that person files a motion, that motion then needs to be resolved by the court and the person can stay until that happens. So what's really the trap is that ordinarily, when you file a motion, you get to the following Monday if the deadline is over the weekend, and that's the way it works in every other scenario. And yet, here, you'd be filing the motion and it wouldn't.

Gerard J. Cedrone: That's exactly right. I think that captures it, and that's what happened to our client in this -- case with quite severe consequences if the government's view is adopted.

Justice Jackson: Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Yang. ORAL ARGUMENT OF ANTHONY A. YANG ON BEHALF OF THE RESPONDENT

Anthony A. Yang: Mr. Chief Justice, and may it please the Court: Section 1229c's maximum 60-day period Official 1 for voluntary departure is not extended when the last day falls on a weekend or a holiday. The requirement to arrange for travel and to depart the United States involves primary conduct in the real world. Nothing prevents departure on weekends or holidays, when many prefer to travel. And unlike contexts involving the timing of litigation-based or administrative acts before courts or agencies, no tradition by rule or otherwise potentially exists for extending statutory deadlines for primary conduct. But, first, statutory jurisdiction is lacking in the highly atypical posture here. Section 1252(a)(1) grants jurisdiction to review final orders of removal. But, in Petitioner's case, it does not involve review of a final order of removal. It does not affect the validity of a final order of removal. And it does not even affect how you would implement a final order of removal. Moreover, Petitioner has other avenues for judicial review of the timing issue here. He could seek APA review after unsuccessfully seeking DHS to return his voluntary departure Official 1 bond or to adjust his status in the country. Now, on the merits, Section 1229c's test reflects the default rule that the 60-day statutory minimum means what it says. And neither common law tradition nor the definition of "day" for certain regulations supports a contextual exception here in the context of primary conduct. Similarly, there are other statutes governing similar primary conduct. The 90-day period to depart after entering the United States through the visa waiver program or on a K visa to marry does not allow stays of 93 days. The 29-day statutory period for a ship crewman to temporarily land does not extend to 32 days. And Petitioner identifies no examples of extending statutory periods for engaging in such primary conduct. Now Section 12 -- the question whether Section 1229c(d)'s penalties apply for failing to depart timely is a distinct question. Those sanctions apply only if this noncitizen voluntarily fails to depart timely. But Petitioner has not argued that his departure was not non-voluntary or if it was non-voluntary, Official 1 and the 60-day period itself cannot be extended. I welcome the Court's questions.

Justice Thomas: Mr. Yang, did you raise the jurisdictional issue below?

Anthony A. Yang: We raised a different one, not this one. We raised this issue in our -- in our Op, albeit abbreviated form, but we did in our Op.

Justice Thomas: Petitioners argues that this is, in fact, non-jurisdictional and is -- that you waived it. Would you respond to that?

Anthony A. Yang: Yes. This is jurisdictional. Section 1252(a)(1) provides for review of a final order of removal, and that's the jurisdictional provision because it applies the Hobbs Act. The Hobbs Act provision, the -- the jurisdictional provision of the Hobbs Act is Section 2342. It provides review in the court of appeals of seven distinct types of orders but not orders in the immigration context, only orders from other agencies. So the way, as Mata recognizes, the way that there is jurisdiction here is Official 1 1252(a)(1) grants jurisdiction to review final orders of removal and then just plugs that into the Hobbs Act.

Justice Kagan: And -- and when you say "final order of removal," what do you think that encompasses?

Anthony A. Yang: Yeah, I -- I think there's a few things. And this is -- after the Court's decision in Nasrallah, it is the following. It is the final order of removal itself.

Justice Kagan: Now what -- what does that mean, "the final order of removal itself"?

Anthony A. Yang: That --

Justice Kagan: Is it --

Anthony A. Yang: Yeah.

Justice Kagan: -- just the determination that somebody ought to be removed, or is it everything else that appears in the final order?

Anthony A. Yang: Not the latter. We made that argument. It was rejected in Nasrallah. The -- Nasrallah says the final order of removal either finds the citizen deportable or orders deportation. That's it.

Justice Gorsuch: But it also says Official 1 anything that affects the validity of the final order --

Anthony A. Yang: That -- that's why there's --

Justice Gorsuch: -- doesn't it, Mr. Yang?

Anthony A. Yang: That's only the first category of things. There are --

Justice Gorsuch: And -- and -- and --

Anthony A. Yang: -- issues that affect the validity --

Justice Gorsuch: If I might just finish.

Anthony A. Yang: Sure. Yeah.

Justice Gorsuch: Thank -- thank you.

Anthony A. Yang: Yeah.

Justice Gorsuch: So one provision in this particular final order is that you're going to be barred for 10 years from seeking reentry into the country after -- if -- if you don't voluntarily remove yourself within 60 days. That's actually written in the final order. And where -- this -- this litigation tests the validity of that, doesn't it?

Anthony A. Yang: No. And -- Official

Justice Gorsuch: Okay. Why not?

Anthony A. Yang: -- and I'll explain why. These -- this is really important. Pages 42a and --

Justice Gorsuch: I agree with that.

Anthony A. Yang: -- 43 -- 42a and 43a of the appendix are what Petitioner relies upon. That is the tail end of the BIA's decision on the appeal. Not rehearing, not reconsideration, and not reopening. It says two orders: Order, appeal dismissed; order, voluntary departure. Then it has -- these are in bold, you know, all caps.

Justice Gorsuch: I've read it. It says: Warning.

Anthony A. Yang: But it says: Notice. It says: Notice, if you fail to voluntarily depart, there are civil penalties --

Justice Gorsuch: Yeah.

Anthony A. Yang: -- and you're ineligible.

Justice Gorsuch: Yeah.

Anthony A. Yang: That -- nothing's going to change with that. That's true. If you fail to voluntarily depart, that's -- those are -- there Official 1 are sanctions. It's just identifying --

Justice Kagan: But -- but the order operates entirely differently under your view versus under Mr. Cedrone's view. One might say the order operates entirely differently depending on whether one takes the view of the original immigration judge or the later view of the Board. I mean, this rollover thing makes the order into a different order with different consequences.

Anthony A. Yang: It -- it does not change the order. The order -- the bottom line of the order and the only thing that these orders ultimately require here that wouldn't allow for judicial review later is this alien -- noncitizen is deportable and shall be removed. That's it, period. There are collateral consequences, but, as I noted in my intro, those collateral consequences can be challenged separately. For instance, on every noncitizen who's granted voluntary departure, they must post a monetary bond. We keep the bond. If they want the bond back, they simply say: I want my bond back. Official 1 DHS will adjudicate. Here, DHS has already said: You violated your -- this is in Footnote 4 of our brief. You violated the voluntary departure period. Therefore, we're keeping your bond. They can -- he could challenge -- I don't -- he could challenge that before the agency's administrative process and then seek APA review. He could, while he's in the country, for instance, seek to adjust status with DHS. DHS would probably say: Can't adjust status, you're barred. Then you get judicial review of that through normal APA review. What's happening here is a jurisdictional provision that is designed to review only final orders of removal is being used to review something that has nothing to do with a final order of removal.

Justice Jackson: But, Mr. Yang -- Mr. Yang, you -- you -- you, in making that argument, seem to be relying on Nasrallah and suggesting that only orders that relate to the removability qualify as affecting the -- validity.

Anthony A. Yang: Just -- Official

Justice Jackson: Am I wrong about that? No?

Anthony A. Yang: I -- I haven't quite finished the -- the categories of things --

Justice Jackson: Okay. Sorry.

Anthony A. Yang: -- that were -- were captured. There is the final order of removal --

Justice Jackson: Okay.

Anthony A. Yang: -- as Nasrallah explains. There are things that affect its validity --

Justice Jackson: Okay.

Anthony A. Yang: -- which then merge into the final order.

Justice Jackson: Yeah.

Anthony A. Yang: In addition, you can raise issues together with the final order of removal. And there's -- there's another category which we think is included. Review of a final order should include rulings that affect how to implement the final order. For instance --

Justice Gorsuch: Oh, there we go.

Anthony A. Yang: Right. How to implement the final order. Official

Justice Gorsuch: There we go. Yeah. How are you going to implement this final order?

Anthony A. Yang: This order --

Justice Gorsuch: Is -- is the fellow barred from the country for 10 years or not?

Anthony A. Yang: That's not in the final order.

Justice Gorsuch: Oh, it says --

Anthony A. Yang: It --

Justice Gorsuch: -- it actually does say "Warning." But, at any rate -- (Laughter.)

Anthony A. Yang: Thank you. It -- it -- it --

Justice Gorsuch: I --

Anthony A. Yang: -- all that simply does -- the -- the final order says several warnings. These are all --

Justice Gorsuch: I -- I mean, where do you get all this from 1252? I mean, I thought you were a good textualist, Mr. Yang.

Anthony A. Yang: Well, when I start --

Justice Gorsuch: And it says that we have -- we have authority -- the court of appeals has authority to review final orders of Official 1 removal. It -- it -- that's it. That's what it says.

Anthony A. Yang: That's true. And it says that judicial review of all other questions -- this is a zipper clause in (b)(9) -- are available only in judicial review of the final -- of a final order under this section.

Justice Gorsuch: All right. If it's so obvious, how come you didn't raise it below?

Anthony A. Yang: That I -- I can't -- I can't speak to.

Justice Gorsuch: All right. Neither can I.

Justice Jackson: I -- I guess --

Justice Gorsuch: Can we hold -- wait.

Anthony A. Yang: But this is jurisdictional. It's not something that we --

Justice Gorsuch: Why -- why -- why -- is it -- is it -- I mean, "jurisdictional," as Justice Ginsburg used to love to say, is a word of many -- too many meanings. Is -- is --

Anthony A. Yang: This is the big "J" jurisdictional meaning. This is -- because 1252(a)(1) only grants jurisdiction through the Hobbs Act to review final orders of removal. Official 1 And we think you can expand that a little bit by knowing the case has nothing to do with the final order of removal. It is not -- the final order, it does not affect its validity. It does not --

Justice Gorsuch: All right.

Justice Jackson: Mr. Yang, not only did you not raise it, I thought you affirmatively represented to the Tenth Circuit that there was jurisdiction in this case.

Anthony A. Yang: No. We said there wasn't but for a different reason.

Justice Jackson: You said there wasn't --

Anthony A. Yang: Was not --

Justice Jackson: -- but for not -- not for this reason.

Anthony A. Yang: -- for a statute -- statutory prohibition on --

Justice Jackson: All right. So what -- what do you do about the fact that Nasrallah itself recognized that evidentiary rulings merge into final orders? I mean, most --

Anthony A. Yang: Because -- Official

Justice Jackson: -- most evidentiary rulings are going to be collateral in the sense that you're talking about. So why -- why is it that this is not?

Anthony A. Yang: No, because an evidentiary ruling that's -- I mean, if it were -- if the judge admitted something and had said, well, this is completely irrelevant, has nothing to do with anything, maybe that would be the case, but --

Justice Jackson: Well, this is not completely irrelevant. I mean, this, as Justice Gorsuch keeps emphasizing, has to -- imposes serious consequences on -- on the defendant. So what I'm saying is an evidentiary ruling that doesn't go to directly whether or not a person is removable under Nasrallah counts because it's still a part of the final order for the purpose of reviewability.

Anthony A. Yang: The final order here is an order of removal. It orders -- grants voluntary departure. The only collateral consequences that arise arise from the decision on reopening and then reconsideration. But Petitioner's not even seeking Official 1 reconsideration -- to challenge the reopening decision. Only through --

Justice Jackson: So here -- here's my --

Justice Barrett: So would it have mattered if he -- would it matter if he had?

Anthony A. Yang: Yes, because a reopening decision, if -- if -- now you can't make a frivolous claim. I mean, Bell versus Hood and Steel Co. makes clear there's no jurisdiction over frivolous claims. But, if you have a good-faith claim that you're challenging the motion to reopen, you're move -- moving to reopen and that itself will affect either the validity of the final order or it could affect how the final order is implemented.

Justice Barrett: So what if he had done that here and not just --

Anthony A. Yang: Well, then we would be making --

Justice Barrett: -- not just appealed his --

Anthony A. Yang: -- we wouldn't be making the jurisdictional argument because he would Official 1 have been arguing that it should have been reopened, one, because I provided sufficient new evidence, as required --

Justice Barrett: Right.

Anthony A. Yang: -- and I'm not barred. And both of those arguments would be teed up and --

Justice Barrett: Could he have challenged the collateral consequences, as Justice Gorsuch was talking about, through a motion to reopen? Is that the government's position?

Anthony A. Yang: No.

Justice Barrett: No? Okay.

Anthony A. Yang: No. The collateral consequences come up later, right?

Justice Barrett: Okay.

Anthony A. Yang: It comes up when you are denied a benefit or when you don't get your bond, and he can challenge those in those contexts in the country.

Justice Barrett: Okay. Can he make --

Justice Gorsuch: So you can challenge even things that are not having to do with the -- your categories that you just gave me -- Official

Anthony A. Yang: Uh-huh.

Justice Gorsuch: -- so long as you have another challenge that does?

Anthony A. Yang: Yeah. It's a normal APA challenge, not a challenge to a final order of removal --

Justice Gorsuch: And so, once --

Anthony A. Yang: -- because it would be a DHS decision.

Justice Gorsuch: -- so long -- if -- if he had brought this Niz-Perez challenge, he could have also challenged this determination on the 10 years even though it doesn't fall, in your view, into any of your -- in any of the buckets?

Anthony A. Yang: No, it would because what he would --

Justice Gorsuch: Because I thought your view is I only have jurisdiction to do things that have to do with removability, and this isn't one of them.

Anthony A. Yang: It -- no, it would. When he challenged -- if he had challenged the motion to reopen by saying proceedings should have reopening -- be reopened, which then has the Official 1 potential to affect the final order --

Justice Gorsuch: Yeah. But, in -- in -- in -- in that litigation, a court might say your Niz-Perez argument's no good.

Anthony A. Yang: Sure.

Justice Gorsuch: But you don't have to wait 10 years.

Anthony A. Yang: Sure. But the fact that you --

Justice Gorsuch: And I have jurisdiction to do that.

Anthony A. Yang: The fact that you lose, might lose, doesn't mean there's not jurisdiction --

Justice Gorsuch: Mm-hmm.

Anthony A. Yang: -- to -- to -- you know, to seek review.

Justice Gorsuch: Let me ask you another question on the merits if I might, and then I'll -- then I'll -- I'll let you go.

Anthony A. Yang: Sure.

Justice Gorsuch: Promise. Well, maybe not. (Laughter.)

Anthony A. Yang: I'm happy to be here as Official 1 long as you'd like to be.

Justice Gorsuch: I take the common law point that it usually has to do with court deadlines. But your regulation is clear. It says all, any. And you've had this regulation for a very long time, and, normally, the government really likes its regulations. It used to come up here and say we have to defer to them. Now it comes up here and says we should give them great respect when they're contemporaneous and long-standing, which check both those boxes here, right? So you're -- you're running from your regulations. I mean, it's sort of like garlic in front of a vampire. You don't want to have anything to do with them.

Anthony A. Yang: Well, I don't know that that's quite right. The regulation at issue here is not a general definition of "day" throughout the immigration context. It is limited in -- textually in two specific ways. One, it only -- applies only to regulations, not statutes. Secondly, it applies only when the period of action is provided in the regulation. And we don't think that applies. Official 1 Section 1229c is a statutory provision, so 1221(a) -- or 1221 -- or, sorry, Section 1-1 would not apply. No regulatory antecedent to which 1-1 would have applied exists. And the implementing regulations -- and this is on page 8a of the appendix to our brief -- say that the maximum is 60 days, as set forth in Section 240B of the Act. It's not saying that the maximum is set forth in the regulations. It's saying that the Act is what sets forth the -- the maximum.

Chief Justice Roberts: Counsel, you began your argument by emphasizing the distinction between this type of deadline and general court deadlines.