Page:United States Reports 502 OCT. TERM 1991.pdf/487

 502us2$24h 01-22-99 08:25:35 PAGES OPINPGT

Cite as: 502 U. S. 314 (1992)

329

Opinion of Scalia, J.

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 IV.)