Immigration and Naturalization Service v. Doherty/Concurrence Scalia

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 below.) 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's 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, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (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 APA do not apply to hearings under the Immigration and Nationality Act (INA), see Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), the judicial review provisions do, see Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955).)

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, 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 I & 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, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (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) 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) (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, 107 S.Ct. 1207, 1211-1212, 94 L.Ed.2d 434 (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, T.I.A.S. No. 6577 (1968). 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, 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). 480 U.S., at 429. 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. Stevic, 467 U.S. 407, 421, 104 S.Ct. 2489, 2496, 81 L.Ed.2d 321 (1984).

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, 108 S.Ct. 904, 99 L.Ed.2d 90 (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, 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." 485 U.S., at 104-105, 108 S.Ct., at 911-912 (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, 108 S.Ct., at 912 ("[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 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, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984) simply because he did not wish to provide Doherty the relief of withholding.

The INS puts forward three procedural bases for rejecting Doherty's motion to reopen. In my view none is valid.

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 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."

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."

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, 8 CFR § 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 disclaims it. 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 of the action taken, or as the consequence prescribed by law. There was no waiver here.

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.

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 fact" 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 fact" 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.

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's 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 designation will not accept him or fails to provide timely notice of acceptance. 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]. . . ."  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 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 § 242.17(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, 94 S.Ct. 1757, 1771-1772, 40 L.Ed.2d 134 (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.

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 discretionary (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's 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's 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's 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's request to 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's 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.

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 otherwise participated" in persecution "on account of . . . political opinion," § 1253(h)(2)(A).

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 § statement that the BIA's authority to decide a reopening motion by "leaping 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 (citing 485 U.S., at 105, 108 S.Ct., at 912). 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.

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, 108 S.Ct., at 911, 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.