Page:United States Reports 502 OCT. TERM 1991.pdf/491

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

333

Opinion of Scalia, J.

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.” Id., at 104–105 (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 (“[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