Page:United States Reports 502 OCT. TERM 1991.pdf/492

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INS v. DOHERTY Opinion of Scalia, J.

General could not deny reopening here—as he could in Abudu, Rios-Pineda, and the other case cited by the Court, INS v. Phinpathya, 464 U. S. 183 (1984)—simply because he did not wish to provide Doherty the relief of withholding. II The INS puts forward three procedural bases for rejecting Doherty’s motion to reopen. In my view none is valid. A The Attorney General asserted, as one of his reasons for denying the reopening—a reason only two Members of the Court accept, ante, at 327, 329—that Doherty “waived” his claims by withdrawing them at his deportation hearing. I do not see how that can be. The deportation proceeding had begun by the filing and service of an order to show cause why Doherty should not be deported, which order clearly contemplated that he would be deported to the United Kingdom. He initially responded to this order (and to the United Kingdom’s simultaneous efforts to obtain extradition) by requesting asylum, and under 8 CFR § 208.3(b) (1983), this request was also treated as an application for withholding of deportation under § 243(h) of the INA. After the extradition proceedings had concluded in his favor, Doherty changed his mind and sought to withdraw the request and application, concede deportability, and designate Ireland as his country of deportation, pursuant to 8 U. S. C. § 1253(a). (Doherty’s motive, apparently, was to get the deportation hearing over and himself out of the country quickly, before conclusion of a new extradition treaty between the United States and the United Kingdom.) I would agree that when this withdrawal was permitted by the Immigration Judge (IJ), it would have constituted a waiver of Doherty’s right to withholding if some regulation precluded resubmission of a withdrawn application. No such regulation exists, however; the withdrawal of a withholding application no more prevents later