Page:United States Reports 502 OCT. TERM 1991.pdf/495

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

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Opinion of Scalia, J.

claims it.3 In any case, even if a “reasonable explanation” requirement did exist, it was surely arbitrary and therefore unlawful for the Attorney General to say that the following did not qualify: “I did not raise it earlier because I agreed I would abstain from doing so in exchange for acceptance of my concession of deportability and designation of Ireland; only when that acceptance was withdrawn did I withdraw my abstention; and until then the claim had absolutely no practical importance.” If that is not well within the term “reasonably explain,” the words of the regulation are a sham and a snare. To be sure, Doherty did, as the Attorney General said, make a “deliberate tactical decision” not to seek withholding from the United Kingdom as the specified alternate. But there is nothing unworthy about deliberate tactical decisions; waivers are not to be slapped upon them as penalties, but only to be discerned as the reasonable import 3

The Chief Justice seeks to enlist the support of INS v. Abudu, 485 U. S. 94 (1988), for the proposition that—despite this negative implication—the requirement applies to withholding claims as well. Ante, at 327–328, n. 10, quoting Abudu’s statement that “the. . . application of 8 CFR § 208.11 (1987), which on its face applies only to asylum requests on reopening, will also usually be dispositive of its decision whether to reopen to permit a withholding of deportation request,” 485 U. S., at 99, n. 3. This misses the whole point of the Abudu footnote, which is that since reopening for an asylum request automatically reopens for a withholding claim; and since the other requirements for withholding are either the same as or more stringent than the requirements for asylum; the single more rigorous asylum requirement—the “reasonable explanation” provision of § 208.11—will normally, as a practical matter, decide not only whether reopening for asylum but also whether reopening for withholding will be granted. Abudu itself proved the point: The Court of Appeals had granted reopening as to the withholding claim only because it had decided that reopening was required for the asylum request. Abudu v. INS, 802 F. 2d 1096, 1102 (CA9 1986). Once we decided the latter reopening was in error because the BIA had properly denied it on § 208.11 grounds, the piggybacked reopening for withholding automatically became error as well.