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INS v. DOHERTY 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.