Page:United States Reports 502 OCT. TERM 1991.pdf/497

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

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Opinion of Scalia, J.

Doherty would surely be entitled to reopening for the purpose of applying for withholding of deportation to that country, even though he might be able to present no “new fac[t]” or “evidence [that]. . . was not available” other than the altered disposition. The INS concedes, moreover, that a change in our immigration laws after deportation has been ordered is a proper basis for reopening—yet that is equally difficult to describe as a “new fac[t]” or “evidence.” The Attorney General argued, and the INS repeats the argument here, that “[t]he ultimate decision in an administrative process cannot itself constitute ‘new’ evidence to justify reopening,” since “[i]f an adverse decision were sufficient, there could never be finality in the process.” That would be true only if a change of outcome on appeal were always a basis for reopening, but the question here is whether it may sometimes be. There is obviously no great practical difficulty in that. This Court itself, in reversing a judgment, frequently remands for further proceedings that our new determination has made necessary. C The INS made at oral argument a contention that is to be found neither in the reasoning of the Attorney General in denying the reopening nor even in the INS’ briefs: that under INS procedures Doherty was not only permitted but was actually required to present his claim for withholding during the deportation hearing, on pain of losing it. The belated discovery of this point renders it somewhat suspect, and the INS did not even cite any specific regulation upon which it is based. Presumably, however, it rests upon 8 CFR § 242.17(e) (1986), which provides that “[a]n application under this section shall be made only during the hearing. . . .” The section includes subsection 242.17(c), which provides that the IJ shall specify a country, or countries in the alternate, to which the respondent will be sent if he declines to designate one, or if the country of his desig-