# Immigration and Naturalization Service v. Doherty

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Immigration and Naturalization Service v. Doherty, 502 U.S. 314 (1992), is a United States Supreme Court case that declared that the Attorney General of the United States has broad discretion to reopen deportation (now called "removal") proceedings, as well as other adjudications heard before immigration courts.

## Concurring Opinion

    Scalia
United States Supreme Court
502 U.S. 314
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
Syllabus
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 BIA's finding that Doherty had produced new material evidence and that, under INS v. Abudu, 485 U.S. 94, 108 S.Ct. 904, 99 L.Ed.2d 90, 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 (CA2 1990), reversed.
THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part I, concluding that the Attorney General did not abuse his discretion 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, 105 S.Ct. 2098, 2100, 85 L.Ed.2d 452. 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, 104 S.Ct. 584, 588, n. 6, 78 L.Ed.2d 401, and the Attorney General has "broad discretion" to grant or deny such motions. Rios-Pineda, supra, 471 U.S., at 449, 105 S.Ct. at 2102. 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, 485 U.S., at 105, 108 S.Ct., at 911. It is the proper standard regardless of the underlying basis of the alien's request for relief, 485 U.S., at 99, n. 3, 108 S.Ct., at 908, 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 withdrew 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, 108 S.Ct., at 911-912, 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 statutory 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. THOMAS, J., took no part in the consideration or decision of the case.
Maureen E. Mahoney, Washington, D.C., for petitioner.
Mary Boresz Pike, New York City, for respondent.
THE CHIEF JUSTICE 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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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