IMMIGRATION AND NATURALIZATION SERVICE v. DOHERTY
No. 90-925
Supreme Court of the United States
Argued October 16, 1991—Decided January 15, 1992
502 U.S. 314
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.
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respondent to allow consideration of respondent‘s claims for asylum and withholding of deportation which he had earlier withdrawn.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
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,
In December 1984, United States District Judge Sprizzo, acting as an Extradition Magistrate under
The INS appealed the BIA‘s determination to the Attorney General pursuant to
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
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-
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. Rios-Pineda, 471 U. S. 444, 446 (1985). The regulation with which we deal here,
“Reopening or reconsideration.
“... 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. 94, 107-108 (1988). 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 Rios-Pineda, supra, at 450. In Abudu, supra, at 104-105, 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. 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
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
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
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
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
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 IV.)
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.”
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,
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,
Because of the mandatory nature of the withholding-of-deportation 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
failure to apply for asylum initially,
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,
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
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
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.
“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.,
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,”
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.
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
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 I). 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-
“[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
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
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.
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.
Notes
“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.”
“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
“(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 . . . .”