Page:United States Reports 502 OCT. TERM 1991.pdf/488

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INS v. DOHERTY Opinion of Scalia, J.

I 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.” 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 (1955), the judicial review provisions do, see Shaughnessy v. Pedreiro, 349 U. S. 48 (1955).) 1 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, 1

Pedreiro remains the law, although the particular mode of APA review at issue in the case—an action for injunctive relief in federal district court—has been eliminated by § 106 of the INA, 8 U. S. C. § 1105a, which “replaced it with direct review in the courts of appeals based on the administrative record.” Agosto v. INS, 436 U. S. 748, 752–753 (1978). See 5 U. S. C. § 703 (“The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction”).