Page:United States Reports 502 OCT. TERM 1991.pdf/489

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

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Opinion of Scalia, J.

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 (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)(1) 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) (1988 ed., Supp. II) (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 (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,