OCTOBER TERM, 1991
Syllabus
IMMIGRATION AND NATURALIZATION SERVICE
v. DOHERTY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 90-925. Argued October 16, 1991-Decided January 15, 1992
Respondent Doherty, a citizen of both Ireland and the United
Kingdom, was found guilty
in absentia by a Northern Ireland
court of,
inter alia, the murder of a British officer in
Northern Ireland. After petitioner Immigration and Naturalization
Service (INS) located him in the United States and began
deportation proceedings against him, he applied for asylum under
the Immigration and Nationality Act (Act), but he withdrew that
application and a claim for withholding of deportation in 1986, at
which time he conceded deportability and, pursuant to the Act,
designated Ireland as the country to which he be deported. The
Immigration Judge, over the INS' challenge to the designation,
ordered deportation to Ireland, and the Board of Immigration
Appeals (BIA) affirmed. While an INS appeal to the Attorney General
was pending, Doherty moved to reopen his deportation proceedings on
the basis that the 1987 Irish Extradition Act constituted new
evidence requiring reopening of his claims for withholding of
deportation and asylum. The Attorney General rejected Doherty's
designation, ordered him deported to the United Kingdom, and
remanded his motion to reopen to the BIA. The BIA granted the
motion to reopen, but the Attorney General reversed, relying on,
inter alia, the independent grounds that (1) Doherty had not
presented new evidence warranting reopening, and (2) he had waived
his claims by withdrawing them in 1986. The Court of Appeals
affirmed the order denying Doherty's designation, but held that the
Attorney General had abused his discretion in denying the motion to
reopen. Among other things, the court found that the Attorney
General had used an incorrect legal standard in overturning the
BIA's finding that Doherty had produced new material evidence and
that, under
INS v.
Abudu, 485 U. S. 94, once an
alien establishes a prima facie case for withholding of deportation
and brings new evidence, the Attorney General is without discretion
to deny a motion to reopen.
Held: The judgment is reversed.
908
F.2d 1108, reversed.
THE CHIEF JUSTICE delivered the opinion of the Court with
respect to Part I, concluding that the Attorney General did not
abuse his discre-
315
tion in denying the motion to reopen Doherty's deportation
proceedings. There is no statutory provision for reopening, and the
authority for such motions derives solely from regulations
promulgated by the Attorney General.
INS v.
Rios-Pineda, 471 U. S. 444,446. The
applicable regulation, 8 CFR § 3.2, is couched solely in negative
terms: It specifies that motions to reopen shall not be granted
unless it appears that evidence sought to be offered is material,
was not available, and could not have been discovered or presented
at the former hearing, without specifying conditions under which
motions should be granted. Thus, the granting of a motion to reopen
is discretionary,
INS v.
Phinpathya, 464 U. S. 183,
188, n. 6, and the Attorney General has "broad discretion" to grant
or deny such motions.
Rios-Pineda, supra, at 449. Motions
for reopening immigration proceedings are disfavored for the same
reasons as are petitions for rehearing and motions for a new trial
on the basis of newly discovered evidence. When denial of a motion
to reopen is based on a failure to prove a prima facie case for the
relief sought or a failure to introduce previously unavailable,
material evidence, abuse of discretion is the proper standard of
review.
Abudu, supra, at 105. It is the proper standard
regardless of the underlying basis of the alien's request for
relief, 485 U. S., at 99, n. 3, and, thus, applies equally to
motions to reopen claims for asylum and claims for withholding of
deportation. The proper application of these principles leads to
the conclusion that the Attorney General did not abuse his
discretion in denying reopening either on the ground that Doherty
failed to adduce new evidence or on the ground that Doherty failed
to satisfactorily explain his previous withdrawal of these claims.
Pp. 322-324.
THE CHIEF JUSTICE, joined by JUSTICE WHITE, JUSTICE BLACKMUN,
and JUSTICE O'CONNOR, concluded in Part II that, for the reasons
stated by the Attorney General, it was well within his discretion
to decide that neither the denial of Doherty's designation, nor the
change in Irish extradition law, qualified as new material evidence
to support reopening. The Attorney General concluded that Doherty
should have known that there was always a risk that deportation to
Ireland would be denied, since the Attorney General is authorized
to reject deportation to a country if he determines that it would
be prejudicial to United States interests and since the INS
objected to the designation at the hearing at which Doherty
selected Ireland. He also determined that the rejection of the
designated country was the ultimate decision in the administrative
process and therefore cannot constitute new evidence to justify
reopening. Additionally, he determined that the Irish Extradition
Act's implementation was neither relevant nor new, since the treaty
upon which it was based had been signed six months before Doherty
with-
316
Syllabus
drew his claims and since a change in law ordinarily does not
support a motion to reopen unless the change pertains to the rules
of the proceeding at which deportation was ordered. Moreover,
language in
Abudu, supra, at 104-105, which the Court of
Appeals interpreted as negating 8 CFR § 3.2's requirement of
unforeseeability, cannot bear that construction, particularly when
Abudu also sets out verbatim the applicable regulation and
when it is not uncommon to require that motions to reopen be based
on matter which could not reasonably have been previously adduced.
Nor does the fact that the Attorney General disagrees with the
BIA's conclusion support a finding that he abused his discretion.
The BIA is simply a regulatory creature of the Attorney General,
and he retains the final administrative authority in construing,
and deciding questions under, the regulations. Pp. 324-327.
THE CHIEF JUSTICE, joined by JUSTICE KENNEDY, concluded in Part
III that the Attorney General did not abuse his discretion in
finding that withdrawing his claims to secure a tactical advantage
in the first hearing did not constitute a reasonable explanation
for failing to pursue the claims at that hearing. The INS allows
aliens to plead in the alternative, and there was nothing that
prevented Doherty from bringing evidence in support of his claims
in case the Attorney General contested his designated country.
However, he chose instead to withdraw the claims, even when
expressly questioned by the Immigration Judge. Nothing in the
reopening regulations forbids the Attorney General from adopting a
narrow interpretation of regulations. Pp. 327-329.
REHNQUIST, C. J., announced the judgment of the Court and
delivered the opinion of the Court with respect to Part I, in which
WHITE, BLACKMUN, O'CONNOR, and KENNEDY, JJ., joined, an opinion
with respect to Part II, in which WHITE, BLACKMUN, and O'CONNOR,
JJ., joined, and an opinion with respect to Part III, in which
KENNEDY, J., joined. SCALIA, J., filed an opinion concurring in the
judgment in part and dissenting in part, in which STEVENS AND
SOUTER, JJ., joined,
post, p. 329. THOMAS, J., took no part
in the consideration or decision of the case.
Deputy Solicitor General Mahoney argued the cause for
petitioner. On the briefs were Solicitor General Starr, Assistant
Attorney General Gerson, Deputy Solicitor General Roberts, Edwin S.
Kneedler, Barbara L. Herwig, and John C. Hoyle.
317
Mary Boresz Pike argued the cause for respondent. With
her on the brief was
Arthur C.
Helton. *
CHIEF JUSTICE REHNQUIST announced the judgment of the Court and
delivered the opinion of the Court with respect to Part I, an
opinion with respect to Part II, in which JUSTICE WHITE, JUSTICE
BLACKMUN, and JUSTICE O'CONNOR join, and an opinion with respect to
Part III, in which JUSTICE KENNEDY joins.
Respondent, Joseph Patrick Doherty, entered this country
illegally in 1982. After more than eight years of proceedings
concerning Doherty's status in the United States, the question
presented here is whether the Attorney General abused his
discretion in refusing to reopen the deportation proceedings
against respondent to allow consideration of respondent's claims
for asylum and withholding of deportation which he had earlier
withdrawn. We conclude that the Attorney General did not abuse the
broad discretion vested in him by the applicable regulations.
Respondent is a native of Northern Ireland and a citizen of both
Ireland and the United Kingdom. In May 1980, he and fellow members
of the Provisional Irish Republican Army ambushed a car containing
members of the British Army and killed British Army Captain Herbert
Richard Westmacott. He was tried for the murder of Westmacott in
Northern Ireland. Before the court returned a verdict, he escaped
from the maximum security prison where he was
*Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
David W Rivkin,
Michael W Galligan, Lucas Guttentag, Steven R. Shapiro, and
Carolyn Patty Blum; for Amnesty International et al. by
Paul L. Hoffman; for the International Human Rights Law
Group by
Irwin Goldbloom; for Members of the United States
Senate et al. by
Carolyn Patty Blum, Kevin R. Johnson, and
Joseph K. Brenner; and for the United Nations High
Commissioner for Refugees by O.
Thomas Johnson, Jr., Andrew I.
Schoenholtz, Julian Fleet, and
Ralph G.
Steinhardt.
318
Opinion of REHNQUIST, C. J.
held; the court found him guilty
in absentia of murder
and related charges and sentenced him to life imprisonment.
In 1982, respondent surreptitiously entered the United States
under an alias. In June 1983, he was located by the Immigration and
Naturalization Service (INS), which thereupon began deportation
proceedings against him. Respondent applied for asylum under § 208
of the Immigration and Nationality Act, as added by the Refugee Act
of 1980, 94 Stat. 105, 8 U. S. C. § 1158.1 The immigration
proceedings were suspended to allow completion of extradition
proceedings, which were initiated by the United States at the
request of the United Kingdom.
In December 1984, United States District Judge Sprizzo, acting
as an Extradition Magistrate under 18 U. S. C. § 3184, held that
respondent was not extraditable because his crimes fell into the
political offenses exception to the extradition treaty between the
United States and the United Kingdom.
In re Requested
Extradition of Doherty, 599 F. Supp. 270, 272 (SDNY 1984). The
attempts of the United States to attack this conclusion
collaterally were rebuffed.
United States v.
Doherty,
615 F. Supp. 755 (SDNY 1985), aff'd,
786 F.2d
491 (CA2 1986).2
1 Section 208 of the Immigration Act, 8 U. S. C. § 1158(a)
provides, in pertinent part: "The Attorney General shall establish
a procedure for an alien physically present in the United States
... to apply for asylum, and the alien may be granted asylum in the
discretion of the Attorney General if the Attorney General
determines that such alien is a refugee .... " The term "refugee"
is defined by 8 U. S. C. § 1101(a)(42)(A) as "any person who is
outside any country of such person's nationality ... and who is
unable or unwilling to return to ... that country because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion .... "
2 Respondent, who has been confined since his arrest by the INS,
has also twice unsuccessfully filed for habeas corpus relief.
Doherty v.
Meese, 808 F.2d
938 (CA2 1986);
Doherty v.
Thornburgh,
943 F.2d
204 (CA2 1991).
319
When the extradition proceedings concluded, the deportation
proceedings against respondent resumed. On September 12, 1986, at a
hearing before the Immigration Judge, respondent conceded
deportability and designated Ireland as the country to which he be
deported pursuant to 8 U. S. C. § 1253(a).3 In conjunction with
this designation, respondent withdrew his application for asylum
and withholding of deportation. The INS unsuccessfully challenged
respondent's designation on the basis that Doherty's deportation to
Ireland would, in the language of § 1253(a), "be prejudicial to the
interests of the United States." The Immigration Judge found that
the INS had produced no evidence to support its objection to the
designation and ordered that respondent be deported to Ireland.
App. to Pet. for Cert. 158a. On March 11, 1987, the Board of
Immigration Appeals (BIA) affirmed the deportation order,
concluding that the INS had never before rejected a deportee's
designation and that rejection of a deportee's country of
designation is improper "in the absence of clear evidence to
support that conclusion."
Id., at 155a.
The INS appealed the BIA's determination to the Attorney General
pursuant to 8 CFR § 3.1(h)(iii) (1987).4 While the order to deport
respondent to Ireland was being reviewed by the Attorney General,
respondent filed a motion to reopen his deportation proceedings on
the basis that the
3 Title 8 U. S. C. § 1253(a) provides, in part: "The deportation
of an alien in the United States ... shall be directed by the
Attorney General to a country promptly designated by the alien if
that country is willing to accept him into its territory, unless
the Attorney General, in his discretion, concludes that deportation
to such country would be prejudicial to the interests of the United
States."
4 Initially, the INS moved for reconsideration of the BIA's
March 1987 decision based on new evidence in the form of an
affidavit by the Associate Attorney General. The BIA reopened the
appeal but refused to remand to the Immigration Judge, instead
finding that the affidavit offered by the INS was not new evidence
and, in any event, did not change the BIA's conclusion. App. to
Pet. for Cert. 134a-142a.
320
Opinion of REHNQUIST, C. J.
Irish Extradition Act, implemented by Ireland in December 1987,
constituted new evidence requiring that his claims for withholding
of deportation and asylum now be reopened. In June 1988, Attorney
General Meese reversed the BIA and ordered respondent deported to
the United Kingdom. Respondent's designation was rejected by the
Attorney General on the basis that respondent committed a serious
crime in the United Kingdom and therefore to deport respondent to
any country other than the United Kingdom to serve his sentence
would harm the interests of the United States. The Attorney General
remanded respondent's motion to reopen for consideration by the
BIA.
The BIA granted respondent's motion to reopen, concluding that
the 1987 Irish Extradition Act was a circumstance that respondent
could not have been expected to anticipate, and that the result of
his designation would now leave him to be extradited from Ireland
to the United Kingdom, where he feared persecution. The BIA's
decision to reopen was appealed by the INS and was reversed by
Attorney General Thornburgh who found three independent grounds for
denying Doherty's motion to reopen. The Court of Appeals for the
Second Circuit reviewed both the order of Attorney General Meese
which denied respondent's designation of Ireland as the country of
deportation and Attorney General Thornburgh's order denying
respondent's motion to reopen his deportation proceedings. It
affirmed the Meese order, but by a divided vote reversed the
Thornburgh order.
Doherty v.
United States Dept. of
Justice, INS, 908 F.2d
1108 (1990). Attorney General Thornburgh had abused his
discretion in denying the motion to reopen, according to the Court
of Appeals, because he had overturned the BIA's finding that
respondent had produced new material evidence under an incorrect
legal standard. The passing of the 1987 Irish Extradition Act in
conjunction with Attorney General Meese's denial of Ireland as
Doherty's country of deportation was
321
new evidence, which, according to the Court of Appeals, entitled
Doherty to have his deportation proceedings reopened.
The Court of Appeals also held that Attorney General Thornburgh
had erred in determining, on a motion for reopening, that
respondent was not entitled to the ultimate relief requested.
Citing this Court's decision in
INS v.
Abudu,
485 U. S. 94
(1988), the Court of Appeals held that such a determination could
not be made for the mandatory relief of withholding of deportation,
and that once an alien establishes a prima facie case for
withholding of deportation and brings new evidence, the Attorney
General is without discretion to deny the motion to reopen. In
addition, the Court of Appeals held that the Attorney General had
abused his discretion by relying on foreign policy concerns in
denying respondent's motion to reopen his claim for asylum. After
examining the legislative history of § 208 of the Immigration and
Nationality Act, the Court of Appeals concluded that Congress
intended foreign policy interests to play no role in asylum
determinations. The Attorney General had abused his discretion "in
denying Doherty's application for reasons that congress sought to
eliminate from asylum cases .... " 908 F. 2d, at 1121.
We granted certiorari, 498 U. S. 1081 (1991), and now decide
that the Court of Appeals placed a much too narrow limit on the
authority of the Attorney General to deny a motion to reopen
deportation proceedings. The Attorney General based his decision to
deny respondent's motion to reopen on three independent grounds.
First, he concluded that respondent had not presented new evidence
warranting reopening; second, he found that respondent had waived
his claims to asylum and withholding of deportation by withdrawing
them at his deportation hearing in September 1986; and, third, he
concluded that the motion to reopen was properly denied because
Doherty's involvement in serious nonpolitical crimes in Northern
Ireland made him statutorily ineli-
322
gible for withholding of deportation,5 as well as undeserving of
the discretionary relief of asylum. Because we conclude that the
Attorney General did not abuse his discretion in denying the motion
to reopen either on the first or second of these grounds, we
reverse the Court of Appeals' decision, and need not reach the
third ground for denial of reopening relied upon by the Attorney
General.
I
This is the fifth case in the last decade in which we have dealt
with the authority of the Attorney General and the BIA to deny a
motion to reopen deportation proceedings. These cases establish
several propositions. There is no statutory provision for reopening
of a deportation proceeding, and the authority for such motions
derives solely from regulations promulgated by the Attorney
General.
INS v.
RiosPineda,
471 U. S. 444, 446
(1985). The regulation with which we deal here, 8 CFR § 3.2 (1987),
is couched solely in negative terms; it requires that under certain
circumstances a motion to reopen be denied, but does not specify
the conditions under which it shall be granted:
"Reopening or reconsideration.
5 Title 8 U. S. C. § 1253(h) provides in pertinent part:
"Withholding of deportation or return
"(1) The Attorney General shall not deport or return any alien
... to a country if the Attorney General determines that such
alien's life or freedom would be threatened in such country on
account of race, religion, nationality, membership in a particular
social group, or political opinion.
"(2) Paragraph (1) shall not apply to any alien if the Attorney
General determines that-
"(A) the alien ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of race,
religion, nationality, membership in a particular social group, or
political opinion; [or]
"(C) there are serious reasons for considering that the alien
has committed a serious nonpolitical crime outside the United
States prior to the arrival of the alien in the United States ....
"
323
" ... Motions to reopen in deportation proceedings shall not be
granted unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have been
discovered or presented at the former hearing .... "
The granting of a motion to reopen is thus discretionary,
INS v.
Phinpathya, 464 U. S. 183, 188, n. 6
(1984), and the Attorney General has "broad discretion" to grant or
deny such motions,
Rios-Pineda, supra, at 449. Motions for
reopening of immigration proceedings are disfavored for the same
reasons as are petitions for rehearing and motions for a new trial
on the basis of newly discovered evidence.
INS v.
Abudu, 485 U. S., at 107-108. This is especially true in a
deportation proceeding, where, as a general matter, every delay
works to the advantage of the deportable alien who wishes merely to
remain in the United States. See
INS v.
Rios-Pineda,
supra, at 450. In
Abudu, supra, we stated that there
were "at least" three independent grounds on which the BIA might
deny a motion to reopen-failure to establish a prima facie case for
the relief sought, failure to introduce previously unavailable,
material evidence, and a determination that even if these
requirements were satisfied, the movant would not be entitled to
the discretionary grant of relief which he sought.
Abudu,
supra, at 104-105. When denial of a motion to reopen is based
on the last two of these three grounds, abuse of discretion is the
proper standard of review. 485 U. S., at 105.
We also noted in
Abudu that the abuse-of-discretion
standard applies to motions to reopen "regardless of the underlying
basis of the alien's request [for relief]."
Id., at 99, n.
3.6 In
Abudu itself, the alien's claim for asylum was made
after
6 This is so, in part, because every request for asylum made
after institution of deportation proceedings is also considered as
a request for withholding of deportation under 8 U. S. C. § 1253(h)
(1988 ed. and Supp. II). 8 CFR § 208.3(b) (1983).
324
Opinion of REHNQUIST, C. J.
an order of deportation was issued, and therefore by operation
of the regulations, the alien had brought a claim for withholding
of deportation as well.
Ibid.7 The discretion which we
discussed in
Abudu, therefore, applies equally to motions to
reopen claims for asylum and claims for withholding of
deportation.
We think that the proper application of these principles leads
inexorably to the conclusion that the Attorney General did not
abuse his discretion in denying reopening either on the basis that
respondent failed to adduce new material evidence or on the basis
that respondent failed to satisfactorily explain his previous
withdrawal of these claims.
II
The Attorney General determined that neither the denial of
respondent's designation of Ireland as the country of deportation,
nor the change in Irish extradition law, qualified as new material
evidence to support reopening of respondent's deportation
proceedings. He explained that since the very same statute which
allows the alien to designate a country for deportation also
authorizes the Attorney General to oppose that designation, the
eventual denial of respondent's designation could not be a "new
fact" which would support reopening. He stated that "it is
inconceivable that anyone represented by counsel could not know
that there always existed a risk that the Attorney General would
deny respondent's deportation to Ireland to protect the interests
of the United States." App. to Pet. for Cert. 66a. This conclusion
was based on 8 U. S. C. § 1253(a), which provides that
7We concluded that the BIA was within its discretion to deny
respondent's motion to reopen both claims for relief because
"respondent had not reasonably explained his failure to apply for
asylum prior to the completion of the initial deportation
proceeding,"
INS v.
Abudu, 485 U. S., at 111, not
because the alien was not entitled on the merits to the relief
sought. Cf.
post, at 333-334 (SCALIA, J., concurring in
judgment in part and dissenting in part).
325
the Attorney General shall direct the alien be deported to the
country designated by the alien "if that country is willing to
accept him into its territory, unless the Attorney General, in his
discretion, concludes that deportation to such country would be
prejudicial to the interests of the United States." In addition, in
this case, the INS had objected to respondent's designation at the
very hearing at which his selection of Ireland as the country of
deportation was made.8 The Attorney General also concluded that his
rejection of the designated country was not a "fact," reasoning
that "[t]he ultimate decision in an administrative process cannot
itself constitute 'new' evidence to justify reopening. If an
adverse decision were sufficient, there could never be finality in
the process." App. to Pet. for Cert. 67a. He therefore concluded
that the Government's successful opposition to respondent's
designation was neither "new" nor "evidence."
The Attorney General also decided that Ireland's implementation
of its 1987 Extradition Act was neither relevant nor new. By the
time he issued his denial of the motion to reopen, the question was
whether respondent should be deported to the United Kingdom. And
the treaty upon which the Irish Extradition Act was based had been
signed six months
before respondent withdrew his asylum and
withholding of deportation claims in 1986. He also noted that a
change in law ordinarily does not support a motion to reopen unless
the change pertains to the rules of the proceeding at which
deportation was ordered.
The Court of Appeals took the view that the Attorney General's
insistence that the grounds adduced for reopening have been
"unforeseeable" was supported by "[n]either the regulations nor the
applicable decisional law." 908 F. 2d, at
8 At the deportation hearing, counsel for the INS stated that
the INS "oppose[d] the designation of the Republic of Ireland on
the ground that the respondent's deportation to the Republic of
Ireland would be prejudicial to the interest of the United States"
and designated the United Kingdom as "an alternate country of
deportation." App.34.
326
Opinion of REHNQUIST, C. J.
1115. But the regulation here in question, 8 CFR § 3.2 (1987),
provides in part that motions to reopen in deportation proceedings
"shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could
not have been discovered or presented at the former hearing .... "
The Court of Appeals seized upon a sentence in our opinion in
Abudu stating that the issue in such a proceeding is whether
the alien has "reasonably explained his failure to apply for asylum
initially" and has indeed offered "previously unavailable, material
evidence,"
Abudu, 485 U. S., at 104-105, as negating a
requirement of unforeseeability. But this sentence, we think,
cannot bear that construction, particularly when the same opinion
sets out verbatim the applicable regulation quoted above. It is not
at all uncommon to require that motions to reopen proceedings be
based on matter which could not reasonably have been previously
adduced; see,
e. g., Fed. Rule Civ. Proc. 60(b)(2) ("newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b) ... ").
We hold, for the reasons stated in the opinion of the Attorney
General, that it was well within his broad discretion in
considering motions to reopen to decide that the material adduced
by respondent could have been foreseen or anticipated at the time
of the earlier proceeding.9 The alien, as we discuss more fully in
Part III,
infra, is allowed to plead inconsist-
9The Court of Appeals,
908 F.2d
1108, 1115-1116 (CA2 1990), and JusTICE SCALIA,
post, at
338-339, suggest that the Attorney General's denial of respondent's
designation of Ireland was not even foreseeable at the time of the
deportation hearing. Given the statutory language of 8 U. S. C. §
1253(a) and the position taken by the INS at the deportation
hearing, we find it unrealistic to assume that respondent was
unaware of the possibility that his designation of Ireland might
prove ineffective notwithstanding the fact that Ireland was willing
to receive him. The Attorney General certainly does not abuse his
discretion in failing to take such a view of the events in this
case.
327
ently in the alternative in the original proceeding and thereby
raise any claims that are foreseeable at that time.
The Court of Appeals also took the view that since the BIA had
granted the motion to reopen, the Attorney General was in some way
limited in his authority to overturn that decision. But the BIA is
simply a regulatory creature of the Attorney General, to which he
has delegated much of his authority under the applicable statutes.
He is the final administrative authority in construing the
regulations, and in deciding questions under them. See
INS
v. Jong
Ha Wang,
450 U. S. 139, 140 (1981)
(per curiam). The mere fact that he disagrees with a conclusion of
the BIA in construing or applying a regulation cannot support a
conclusion that he abused his discretion.
III
The Attorney General found, as an independent basis for denying
reopening, that respondent had waived his claims for relief by
withdrawing them at the first hearing to obtain a tactical
advantage. We disagree with the Court of Appeals' rejection of this
reason to deny reopening. 908 F. 2d, at 1122. The Attorney
General's reasoning as to respondent's waiver of his claims is the
functional equivalent of a conclusion under 8 CFR § 208.11 (1987)
that respondent has not reasonably explained his failure to pursue
his asylum claim at the first hearing. In other words, the Attorney
General found that withdrawing a claim for a tactical advantage is
not a reasonable explanation for failing to pursue the claim at an
earlier hearing.10
10 Although 8 CFR §§ 208.11 and 3.2 (1987) are nominally
directed respectively at motions to reopen asylum claims and
withholding of deportation claims, they are often duplicative in
that an offer of material evidence which was not available at the
time of the hearing would, in most cases, also be an adequate
explanation for failure to pursue a claim at an earlier proceeding.
As we explained in
INS v.
Abudu, 485 U. S. 94, 99, n. 3
(1988), the "application of 8 CFR § 208.11 (1987), which on its
face applies only to asylum requests on reopening, will also
usually be dispositive of
328
Opinion of REHNQUIST, C. J.
Precisely because an alien may qualify for one form of relief
from deportation, but not another, the INS allows aliens to plead
in the alternative in immigration proceedingsY There was nothing
which prevented respondent from bringing evidence in support of his
asylum and withholding of deportation claims at his first
deportation proceeding, in case the Attorney General did contest
his designation of Ireland as the country to which he be
deported.12 Respondent chose, however, to withdraw those claims,
even when expressly questioned by the Immigration JudgeP
The Court of Appeals rejected this ground for the Attorney
General's denial of reopening on the ground that his reasoning was
"incompatible with any motion to reopen .... " 908 F. 2d, at 1122.
It may be that the Attorney General has adopted a narrow, rather
than a broad, construction of the
its decision whether to reopen to permit a withholding of
deportation request." See
supra, at 324. The opportunity for
the alien to plead in the alternative is an ample basis for the
Attorney General to find, without abusing his discretion in a
situation such as the present one, that the failure of the alien to
so plead has not been reasonably explained.
11 Indeed, in
Abudu, supra, the alien had moved to reopen
his deportation proceedings to pursue claims for asylum and
withholding of deportation based on persecution he feared in his
home country of Ghana in the event that his designation of England
as the country of deportation proved ineffective. 485 U. S., at
97.
12 The Immigration Judge did prevent the INS from presenting
evidence of additional grounds on which respondent could be
deported once respondent had conceded deportability, but there is
no indication that had respondent not withdrawn his claims at the
September 12, 1986, proceeding, the Immigration Judge would not
have allowed respondent to bring evidence in support of his
application for asylum and withholding of deportation. App. to Pet.
for Cert. 157a.
13 At the September 12, 1986, hearing, the Immigration Judge
asked respondent's counsel: "I just want to be sure ... there won't
be any application for political asylum and/or withholding of
deportation, correct?" to which respondent's counsel replied: "That
is correct." The Immigration Judge asked again: "In other words,
there is no application for relief from deportation that you will
be making?" to which the response from counsel was again in the
affirmative. App. 32.
329
regulations governing reopening, but nothing in the regulations
forbids such a course. The Attorney General here held that
respondent's decision to withdraw certain claims in the initial
proceedings was a "deliberate tactical decision," and that under
applicable regulations those claims could have been submitted at
that time even though inconsistent with other claims made by
respondent. We hold that this basis for the Attorney General's
decision was not an abuse of discretion.
The judgment of the Court of Appeals is
Reversed.
JUSTICE THOMAS took no part in the consideration or decision of
this case.
JUSTICE SCALIA, with whom JUSTICE STEVENS and JusTICE SOUTER
join, concurring in the judgment in part and dissenting in
part.
I agree that the Attorney General's broad discretion to deny
asylum justified his refusal to reopen the proceedings so that
Doherty might apply for that relief; but a similar rationale is not
applicable to the denial of reopening for the
withholding-of-deportation claim. (Part I,
infra.) In my
view the Immigration and Naturalization Service (INS) is wrong in
asserting that there was waiver or procedural default of the
withholding claim (Part II); and the Attorney General abused his
discretion in decreeing that, for those or other reasons unrelated
to the merits of the withholding claim, Doherty would not be
allowed reopening to apply for that relief (Part III). There may be
merit in the INS' alternative argument that denial of reopening for
the withholding claim was proper because Doherty was statutorily
ineligible for withholding; whether that is so cannot be determined
without a detailed review of the factual record. (Part 1\1.)
330
Opinion of SCALIA, J.
I
I do not question the Court's premise that the decision whether
to permit reopening of an immigration proceeding is discretionary.
Ante, at 323. Even discretion, however, has its legal
limits. The question before us here is whether the decision not to
permit reopening in the present case was an abuse of discretion
according to those standards of federal administration embodied in
what we have described as "the 'common law' of judicial review of
agency action,"
Heckler v.
Chaney, 470 U. S. 821, 832
(1985). If it was such an abuse of discretion, courts are commanded
by the judicial review provisions of the Administrative Procedure
Act (APA) to "hold [it] unlawful and set [it] aside." 5 U. S. C. §
706(2). (Although the detailed hearing procedures specified by the
AP A do not apply to hearings under the Immigration and Nationality
Act (INA), see
Marcello v.
Bonds, 349 U. S. 302 (1955), the
judicial review provisions do, see
Shaughnessy v.
Pedreiro, 349
U. S. 48 (1955).) 1
Whether discretion has been abused in a particular case depends,
of course, upon the scope of the discretion. It is tempting to
believe, as the Court does, that the Attorney General's discretion
to deny reopening is extremely broad, simply because the term
"reopening" calls to mind the reopening of a final judgment by a
court-a rarely accorded matter of grace. In fact, however, the
nature of the INS regulations is such that the term "reopening"
also includes,
1
Pedreiro remains the law, although the particular mode
of APA review at issue in the case-an action for injunctive relief
in federal district court-has been eliminated by § 106 of the INA,
8 U. S. C. § n05a, which "replaced it with direct review in the
courts of appeals based on the administrative record."
Agosto v.
INS, 436 U. S. 748, 752-753
(1978). See 5 U. S. C. § 703 ("The form of proceeding for judicial
review is the special statutory review proceeding relevant to the
subject matter in a court specified by statute or, in the absence
or inadequacy thereof, any applicable form of legal action,
including actions for declaratory judgments or writs of prohibitory
or mandatory injunction or habeas corpus, in a court of competent
jurisdiction").
331
to a large extent, what is in the judicial context the much more
common phenomenon called "remand for further proceedings." Under
the INS system, reopening is the sole means of raising certain
issues that acquire legal relevance or practical importance only by
virtue of the decision on appeal. A remand for that purpose often
requires a "reopening" of the original hearing, and may be
expressly denominated as such. See,
e. g.,
Matter of
Doural, 18 1. & N. Dec. 37 (BIA 1981). Permission to
"reopen" in this sense cannot be denied with the breadth of
discretion that the Court today suggests.
A second reason that the Court mistakes the scope of the
discretion at issue here is that it relies upon "broad discretion"
statements in cases such as
INS v.
Rios-Pineda,
471 U. S. 444,
449 (1985), which involved reopening in order to apply for
substantive relief that was
itself subject to the discretion
of the Attorney General. That is not the case here. Section
243(h)(1) of the INA, as amended, provides that, subject to four
enumerated exceptions:
"The Attorney General shall not deport or return any
alien (other than an alien described in section 241(a)(4)(D) [8 U.
S. C. § 1251(a)(4)(D)]) to a country if the Attorney General
determines that such alien's life or freedom would be threatened in
such country on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U. S. C. §
1253(h)(1) (1988 ed., Supp. II) (emphasis added).
The imperative language of this provision is not an accident. As
we recognized in
INS v.
Cardoza-Fonseca, 480 U. S. 421, 428-429
(1987), the nondiscretionary duty imposed by § 243(h) parallels the
United States' mandatory
nonrefoulement obligations under
Article 33.1 of the United Nations Convention Relating to the
Status of Refugees, 189 U. N. T. S. 150, 176 (1954), reprinted in
19 U. S. T. 6259, 6276,
332
Opinion of SCALIA, J.
T. 1. A. S. No. 6577 (1968).2 Before 1980, § 243(h) merely
"authorized" the Attorney General to withhold deportation in the
described circumstances, but did not require withholding in any
case. 8 U. S. C. § 1253(h) (1976 ed., Supp. III). We presumed in
Cardoza-Fonseca, supra, at 429, however, that after 1968,
when the United States acceded to this provision of the Convention,
the Attorney General "honored the dictates" of Article 33.1 in
administering § 243(h). In 1980 Congress removed all doubt
concerning the matter by substituting for the permissive language
of § 243(h) the current mandatory provision, "basically conforming
it to the language of Article 33 [of the Convention]."
INS
v.
Stevie, 467 U. S. 407, 421 (1984).
Because of the mandatory nature of the withholding-ofdeportation
provision, the Attorney General's power to deny withholding claims
differs significantly from his broader authority to administer
discretionary forms of relief such as asylum and suspension of
deportation. Our decision in
INS v.
Abudu, 485 U. S. 94 (1988),
reflects this. We there identified three independent grounds upon
which the Board of Immigration Appeals (BIA) may deny a motion to
reopen:
"First, it may hold that the movant has not established a prima
facie case for the underlying substantive relief sought ....
Second, the BIA may hold that the movant has not introduced
previously unavailable, material evidence, 8 CFR § 3.2 (1987), or,
in an asylum application case, that the movant has not reasonably
explained his
2 Article 33.1 provides:
"No Contracting State shall expel or return
('refouler~ a
refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion."
The United States was not a signatory to the 1954 Convention,
but agreed to comply with certain provisions, including Article
33.1, in 1968, when it acceded to the United Nations Protocol
Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U. S.
T. 6223, 6225, T. I. A. S. No. 6577.
333
failure to apply for asylum initially, 8 CFR § 208.11 (1987)
.... Third, in cases in which the ultimate grant of relief is
discretionary (asylum, suspension of deportation, and adjustment of
status, but not withholding of deportation), the BIA may
leap ahead, as it were, over the two threshold concerns ... , and
simply determine that even if they were met, the movant would not
be entitled to the discretionary grant of relief." Id., at
104-105 (emphasis added).
The first two grounds (prima facie case and new evidence/
reasonable explanation) are simply examples of, respectively, the
broader grounds of statutory ineligibility and procedural default.
The third ground reflects an understanding that the Attorney
General's power to grant or deny, as a discretionary matter,
various forms of nonmandatory relief includes within it what might
be called a "merits-deciding" discretion to deny motions to reopen,
even in cases where the alien is statutorily eligible and has
complied with the relevant procedural requirements. This third
ground validates, in my view, the Attorney General's denial of
reopening with respect to Doherty's claim for asylum, which is a
nonmandatory remedy, 8 U. S. C. § 1158(a). Irrespective of foreign
policy concerns and regardless of whether Doherty's crimes were
"political," it was within the Attorney General's discretion to
conclude that Doherty is a sufficiently unsavory character not to
be granted asylum in this country.
But as the emphasized phrase in the above-quoted excerpt from
Abudu suggests, there is no analogue to this third ground in
the context of mandatory relief. See also 485 U. S., at 106 ("[Our
prior decisions] have served as support for an abuse-of-discretion
standard of review for the third type of denial, where the BIA
simply refuses to grant relief
that is itself discretionary in
nature, even if the alien has surmounted the requisite
thresholds ... ") (emphasis added). There is no "merits-deciding"
discretion to deny reopening in the context of withholding of
deportation. The Attorney
334
Opinion of SCALIA, J.
General could not deny reopening here-as he could in
Abudu,
Rios-Pineda, and the other case cited by the Court,
INS
v.
Phinpathya, 464 U. S. 183
(1984)-simply because he did not wish to provide Doherty the relief
of withholding.
II
The INS puts forward three procedural bases for rejecting
Doherty's motion to reopen. In my view none is valid.
A
The Attorney General asserted, as one of his reasons for denying
the reopening-a reason only two Members of the Court accept,
ante, at 327, 329-that Doherty "waived" his claims by
withdrawing them at his deportation hearing. I do not see how that
can be. The deportation proceeding had begun by the filing and
service of an order to show cause why Doherty should not be
deported, which order clearly contemplated that he would be
deported to the United Kingdom. He initially responded to this
order (and to the United Kingdom's simultaneous efforts to obtain
extradition) by requesting asylum, and under 8 CFR § 208.3(b)
(1983), this request was also treated as an application for
withholding of deportation under § 243(h) of the INA. After the
extradition proceedings had concluded in his favor, Doherty changed
his mind and sought to withdraw the request and application,
concede deportability, and designate Ireland as his country of
deportation, pursuant to 8 U. S. C. § 1253(a). (Doherty's motive,
apparently, was to get the deportation hearing over and himself out
of the country quickly, before conclusion of a new extradition
treaty between the United States and the United Kingdom.) I would
agree that when this withdrawal was permitted by the Immigration
Judge (IJ), it would have constituted a waiver of Doherty's right
to withholding
if some regulation precluded resubmission of
a withdrawn application. No such regulation exists, however; the
withdrawal of a withholding application no more prevents later
335
reapplication than the withdrawal of an application for Social
Security benefits prevents later reapplication.
In addition to the mere fact of withdrawal, there was the
following exchange between the IJ and counsel for Doherty:
"Q .... I just want to be sure ... there won't be any
application for political asylum and/or withholding of deportation,
correct?
"A. That is correct.
"Q. No application for voluntary departure? "A. That is
correct.
"Q. In other words, there is no application for relief from
deportation that you will be making?
"A. That is correct." App. 32.
The IJ engaged in this questioning in order to determine whether
he would accept the proposal of Doherty's counsel to concede
deportability and designate a country, instead of proceeding with
further proof of deportability. In that context, the only
commitment reasonably expressed by the above-quoted exchange, it
seems to me, was a commitment not to seek withholding
if the
proposed designation was allowed. Doherty thereby waived, I
think, the right to seek withholding if the United Kingdom should
be specified as the "alternate" destination and if Ireland, though
accepted as his designated country of deportation, should
refuse to accept him. This is confirmed by the following exchange
between the IJ and Doherty's counsel later in the hearing, after
the Government had requested specification of the United Kingdom as
the "alternate" destination:
"Q. And, what about the other issue about the alternate
designation? What if Eire doesn't accept him?
"A. Your Honor, we are assured that Ireland will accept him and
that there is no basis under Irish law not to accept him.
336
Opinion of SCALIA, J.
"Q. All right. So, you have no objection, then, to the United
Kingdom and Colonies being designated as an alternate?
"A. That's correct, Your Honor."
Id., at 42.
That much of a waiver was implicit in counsel's commitment not
to raise a withholding claim if the proposed concession of
deportability and designation of country were accepted. But I do
not think one can reasonably find in the record
any waiver,
any commitment as to what Doherty would do, if the proposed
designation of country was
not accepted-which is what
ultimately happened here.
THE CHIEF JUSTICE, joined by JUSTICE KENNEDY, suggests another,
more subtle, theory of waiver: Doherty waived his legal right to
withholding because he did not apply for it as soon as possible.
"There was nothing which prevented respondent" from making his
withholding claim against the United Kingdom
as the specified
alternate country of deportation, ante, at 328; "[r]espondent
chose, however, to withdraw" that claim,
ibid.; so it was
reasonable for the Attorney General to prevent him from making any
withholding claim
against the United Kingdom in any context.
To state this argument is to expose its frailty; it simply does not
follow. Unless there is some rule that says you must object to a
country named in any capacity as soon as the opportunity presents
itself, there is no apparent reason why the failure to do so should
cause the loss of a legal right. THE CHIEF JUSTICE suggests that
there
is such a rule-viz., 8 CFR § 208.11 (1987), which
requires that aliens who request reopening for relief from
deportation must "reasonably explain the failure to request" that
relief "prior to the completion of the exclusion or deportation
proceeding." Unfortunately, however, § 208.11 applies
only to
asylum. Far from establishing a "raise-it-as-soon-as-possible"
rule for withholding claims, this provision by negative implication
dis-
337
claims it.3 In any case, even if a "reasonable explanation"
requirement did exist, it was surely arbitrary and therefore
unlawful for the Attorney General to say that the following did not
qualify: "I did not raise it earlier because I agreed I would
abstain from doing so in exchange for acceptance of my concession
of deportability and designation of Ireland; only when that
acceptance was withdrawn did I withdraw my abstention; and until
then the claim had absolutely no practical importance." If that is
not well within the term "reasonably explain," the words of the
regulation are a sham and a snare. To be sure, Doherty did, as the
Attorney General said, make a "deliberate tactical decision" not to
seek withholding from the United Kingdom as the specified
alternate. But there is nothing unworthy about deliberate tactical
decisions; waivers are not to be slapped upon them as penalties,
but only to be discerned as the reasonable import
3 THE CHIEF JUSTICE seeks to enlist the support of
INS v.
Abudu, 485 U. S. 94 (1988), for the proposition
that-despite this negative implication-the requirement
applies to withholding claims as well.
Ante, at 327-328, n.
10, quoting
Abudu's statement that "the ... application of 8
CFR § 208.11 (1987), which on its face applies only to asylum
requests on reopening, will also usually be dispositive of its
decision whether to reopen to permit a withholding of deportation
request," 485 U. S., at 99, n. 3. This misses the whole point of
the
Abudu footnote, which is that
since reopening for
an asylum request automatically reopens for a withholding claim;
and
since the other requirements for withholding are either
the same as or more stringent than the requirements for asylum; the
single
more rigorous asylum requirement-the "reasonable
explanation" provision of §208.11-will normally, as a practical
matter, decide not only whether reopening for asylum but also
whether reopening for withholding will be granted.
Abudu
itself proved the point: The Court of Appeals had granted reopening
as to the withholding claim only because it had decided that
reopening was required for the asylum request.
Abudu v.
INS, 802 F.2d
1096, 1102
(CA9 1986). Once we decided the latter
reopening was in error because the BrA had properly denied it on §
208.11 grounds, the piggybacked reopening for withholding
automatically became error as well.
338
Opinion of SCALIA, J.
of the action taken, or as the consequence prescribed by law.
There was no waiver here.
B
Another reason the Attorney General gave for denying
reopening-and which the plurality accepts, see
ante, at 324,
326-is that Doherty's December 1987 motion failed to comply with
the regulatory requirements that it identify "new facts to be
proved at the reopened hearing," 8 CFR § 3.8(a) (1987), and that it
show the "evidence sought to be offered is material and was not
available and could not have been discovered or presented at the
former hearing," § 3.2. The Court of Appeals concluded that Doherty
had satisfied this burden by establishing that there had been a
material change in Irish law, and that Attorney General Meese's
order had subsequently changed Doherty's designated country of
deportation to one in which he believed he would be subject to
persecution.
908 F.2d
1108, 1115-1116 (CA2 1990).
I agree with the INS that the asserted change in Irish law does
not satisfy the reopening requirements because it was not
"material" at the time the BIA first ruled on the motion to reopen
in November 1988. By then Attorney General Meese had already
ordered Doherty deported to the United Kingdom instead of Ireland,
and any change in Irish law was no more relevant to his withholding
claim than would be a change in the law of any other country to
which he was not being returned. But the Attorney General's
alteration of Doherty's designated country of deportation is
another matter. Of course this is not what one would normally think
of as a "new fac[t] to be proved at the reopened hearing" or
"evidence ... to be offered." But the words can technically reach
that far, and unless they are given such an expansive meaning, the
regulations make no sense because they do not allow obviously
necessary remands. Suppose, for example, that the Attorney General
had changed Doherty's primary destination, not to the United
Kingdom, but to some country that the IJ had not designated as an
alternate destination.
339
Doherty would surely be entitled to reopening for the purpose of
applying for withholding of deportation to that country, even
though he might be able to present no "new fac[t]" or "evidence
[that] ... was not available" other than the altered disposition.
The INS concedes, moreover, that a change in our immigration laws
after deportation has been ordered is a proper basis for
reopening-yet that is equally difficult to describe as a "new
fac[t]" or "evidence."
The Attorney General argued, and the INS repeats the argument
here, that "[t]he ultimate decision in an administrative process
cannot itself constitute 'new' evidence to justify reopening,"
since "[i]f an adverse decision were sufficient, there could never
be finality in the process." That would be true only if a change of
outcome on appeal were
always a basis for reopening, but the
question here is whether it may
sometimes be. There is
obviously no great practical difficulty in that. This Court itself,
in reversing a judgment, frequently remands for further proceedings
that our new determination has made necessary.
C
The INS made at oral argument a contention that is to be found
neither in the reasoning of the Attorney General in denying the
reopening nor even in the INS' briefs: that under INS procedures
Doherty was not only
permitted but was actually
required to present his claim for withholding during the
deportation hearing, on pain of losing it. The belated discovery of
this point renders it somewhat suspect, and the INS did not even
cite any specific regulation upon which it is based. Presumably,
however, it rests upon 8 CFR § 242.17(e) (1986), which provides
that "[a]n application under this section shall be made only during
the hearing .... " The section includes subsection 242.17(c), which
provides that the IJ shall specify a country, or countries in the
alternate, to which the respondent will be sent if he declines to
designate one, or if the country of his desig-
340
Opinion of SCALIA, J.
nation will not accept him or fails to provide timely notice of
acceptance.4 It then continues: "The respondent shall be advised
that pursuant to section 243(h) of the [INA] he may apply for
temporary withholding of deportation to the country or countries
specified by the special inquiry officer [i.
e., Immigration
Judge] .... " 5 In my view this provision simply means that the
respondent must accept the default specifications of the IJ unless
he objects to them at the hearing. (Doherty chose not to do so
because, having already received assurances from the Irish
Government, he had no concern that the default specification would
ever take effect and did not wish to protract the proceeding.) The
provision in my view does not mean what the INS now asserts (if
this is the regulation it has in mind): that if a respondent fails
to object to a particular country as a default destination, he
cannot later object when that country is substituted as his
primary
4 The deportation order in this case faithfully followed this
provision:
"IT IS ORDERED that the respondent be deported to Eire on the
charge contained in the Order to Show Cause.
"IT IS FURTHER ORDERED that if Eire advises the Attorney General
that it is unwilling to accept respondent into its territory or
fails to advise the Attorney General within three months following
original inquiry whether it will or will not accept respondent into
its territory, respondent shall be deported to the United Kingdom
and Colonies."
5 The entire relevant portion of § 242.17(c) provides:
"The special inquiry officer shall notify the respondent that if
he is finally ordered deported his deportation will in the first
instance be directed pursuant to section 243(a) of the [INA] to the
country designated by him and shall afford the respondent an
opportunity then and there to make such designation. The special
inquiry officer shall then specify and state for the record the
country, or countries in the alternate, to which respondent's
deportation will be directed pursuant to section 243(a) of the
[INA] if the country of his designation will not accept him into
its territory, or fails to furnish timely notice of acceptance, or
the respondent declines to designate a country. The respondent
shall be advised that pursuant to section 243(h) of the [INA] he
may apply for temporary withholding of deportation to the country
or countries specified by the special inquiry officer and may be
granted not more than ten days in which to submit his application."
8 CFR § 242. 17(c) (1986).
341
destination. For when he objects to a country that has been
substituted as the primary destination, it is no longer
"withholding of deportation to the country or countries specified
by the special inquiry officer"
under §
2J,,2.17(c)
that he is applying for, and hence it is no longer "[an]
application under this section."
This reading causes the provision to produce the consequence
that acquiescence ordinarily produces in litigation:
The litigant must live with the disposition acquiesced in, here
the specification of
default destinations. An agency wishing
acquiescence to entail something more-wishing to change the normal
rule from "object to the disposition now, or object never" to
"object to the country you have an opportunity to object to now, or
object never"-can be expected to describe that unusual arrangement
with greater clarity than this provision contains. I am not
prepared to find, on the basis of a default theory not mentioned by
the Attorney General when he denied reopening, first put forward by
counsel in oral argument at the very last stage of litigation, and
never explicitly attributed to this particular regulation as its
source, that this is what the INS interprets the provision to mean.
Indeed, I have some doubt whether the first-ever, unforewarned
adoption of that interpretation to produce the automatic cutoff of
a statutorily conferred right would be lawful. Cf.
NLRB v.
Bell Aerospace Co., 416 U. S. 267, 294-295
(1974). I have no doubt whatever, however, that it would be an
abuse of discretion to deny reopening if such a surprise cutoff
should occur.
III
I have concluded that the denial of reopening in this case was
justified neither by any of the theories of waiver and procedural
default asserted by the INS (Part II), nor by the Attorney
General's "merits-deciding" discretion discussed in
Abudu
(Part 1). Even so, it might be said, the act of reopening a
concluded proceeding is
itself a discretionary one. True-but
as I discussed at the outset, it is not as discretion-
342
Opinion of SCALIA, J.
ary (i.
e., is not subject to as broad a
scope of
discretion) as the term "reopening" might suggest. Surely it would
be unlawful to deny reopening ("remand" would be a better word)
when the decision of the Attorney General substitutes for the
alien's designated country of deportation a country that was not an
"alternate" specified by the IJ, so that the alien was not entitled
to challenge it at the hearing at all. It is also, in my view, an
"abuse of discretion," if not indeed positively contrary to law, to
deny "reopening" when the Attorney General's decision substitutes a
country that
was an alternate, at least where, as here, (1)
the alien had assurance that the country of primary destination
would accept him, and (2) there was no clear indication in the INS'
rules or practice that a country not objected to as an alternate
could not later be objected to as the primary designation. That
this is beyond the permissible foreclosure of mandatory relief such
as withholding is suggested by the negative implication of the INS'
own regulation entitled "Reopening or reconsideration," which reads
in part:
"[N]or shall any motion to reopen for the purpose of affording
the alien an opportunity to apply for any form of
discretionary relief be granted if it appears that the
alien's right to apply for such relief was fully explained to him
and an opportunity to apply therefor was afforded him at the former
hearing unless the relief is sought on the basis of circumstances
which have arisen subsequent to the hearing." 8 CFR § 3.2 (1987)
(emphasis added).
The denial of reopening here takes on a particularly capricious
coloration when one compares it with the considerable indulgence
accorded to the INS' procedural defaults in the same proceeding-and
when one recognizes that it was precisely that indulgence which
placed Doherty in the position of being unable to present his
withholding claim. During the deportation hearing, the IJ rejected
the INS' request to
343
change Doherty's designated country of deportation, concluding
that the INS had failed to come forward with any evidence
supporting its contention that deporting Doherty to Ireland would
be prejudicial to the interests of the United States. On appeal,
the BIA affirmed this action, and rejected the INS' motion to
reopen (remand) for production of such evidence, since it had been
previously available. Although Attorney General Meese did not
formally review the BIA's denial of this motion, he effectively
reversed it by receiving the proffered evidence into the record on
appeal. Had the INS not procedurally defaulted during the
deportation proceedings, and had the evidence it introduced been
successful in securing
at that level a rejection of his
designated country, Doherty would clearly have been entitled to
apply then for withholding. What the INS is here arguing, then, is
that because it prevailed on appeal (after the forgiving of its
procedural default), rather than before the IJ (with the observance
of proper procedures), Doherty may be denied an opportunity to
apply for withholding. The term "arbitrary" does not have a very
precise content, but it is precise enough to cover this.
IV
The INS asserts that, even if the Attorney General erred in
denying reopening on the basis of Doherty's alleged procedural
defaults, the decision must nonetheless be upheld on the ground
that the Attorney General properly concluded that Doherty was
statutorily ineligible for withholding of deportation. In reaching
this conclusion, the Attorney General assumed
arguendo (as
do I) that Doherty had established a prima facie case of
eligibility for withholding of deportation under § 243(h)(1). His
finding of statutory ineligibility was based solely on the
determination that there were "serious reasons for considering that
[Doherty] has committed a serious nonpolitical crime," 8 U. S. C. §
1253(h)(2)(C), and that Doherty had himself "assisted, or
344
Opinion of SCALIA, J.
otherwise participated" in persecution "on account of .
political opinion," § 1253(h)(2)(A).6
The Court of Appeals held that the Attorney General erred in
refusing to reopen on this basis because, in its view, the Attorney
General may never make such determinations without a hearing. 908
F. 2d, at 1116-1117. It based this conclusion on
Abudu's
statement that the BIA's authority to decide a reopening motion by
"'leap[ing] ahead'" to the substantive determination that the
movant would in any event" 'not be entitled to the discretionary
grant of relief' " does not apply to the relief of withholding of
deportation. 908 F. 2d, at 1117 (quoting 485 U. S., at 105). As my
earlier discussion makes clear, however, the "leap over"
substantive determination at issue in
Abudu was the
determination that the Attorney General would not exercise his
discretion in favor of granting asylum. See
supra, at
332-333. Our statement that that sort of "leap over" determination
could not be made for withholding was simply a recognition of the
fact that the Attorney General
has no discretion as to that
relief. Nothing in
Abudu suggests, however, that reopening
may not be denied with respect to withholding on the basis of a
determination, clearly supported by the existing record, that the
alien is statutorily ineligible for relief. There is no reason in
principle why such a determination cannot be made (indeed, the
prima facie case inquiry is simply an example of such a
determination), and the Court of Appeals' statement to the contrary
seems to me wrong.
6 Section 243(h)(2) provides in relevant part that the mandatory
obligation to withhold deportation does not apply to an alien if
the Attorney General determines:
"(A) [T]he alien ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of race,
religion, nationality, membership in a particular social group, or
political opinion; [or]
"(C) there are serious reasons for considering that the alien
has committed a serious nonpolitical crime outside the United
States prior to the arrival of the alien in the United States ....
" 8 U. S. C. §§ 1253(h)(2)(A), (C).
345
The Court of Appeals also concluded that an evidentiary hearing
is always necessary for withholding claims because the types of
issues they present-for example, whether an alien's serious crimes
were "political" -"raise formidable questions of fact that cannot
be adequately resolved in the absence of an evidentiary record."
908 F. 2d, at 1117. That is usually true, but surely not
always; as in the ordinary civil context, there will be
cases in which the paper record presented in connection with a
claim, see Fed. Rule Civ. Proc. 56, or the record of an earlier
hearing, will establish uncontroverted facts showing that the claim
fails as a matter of law. Indeed, we recognized in
Abudu
that an evidentiary hearing may be denied if an alien requesting
reopening fails to make a prima facie case for the relief sought,
485 U. S., at 104, despite the fact-intensive nature of the
questions involved.
Concluding that the Court of Appeals erred in applying a
per
se rule that withholding claims cannot be resolved without an
evidentiary hearing, I would vacate that portion of its judgment
which orders a hearing. Before such an order can be entered, the
court must consider whether the record before the Attorney General
was sufficiently developed that, taken together with matters that
are properly subject to notice, it provided the requisite degree of
support for the conclusion that the serious crimes Doherty has
admitted committing were "nonpolitical." I would remand the case to
the Court of Appeals for consideration under that standard.
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