Page:United States Reports 502 OCT. TERM 1991.pdf/499

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

341

Opinion of Scalia, J.

destination. For when he objects to a country that has been substituted as the primary destination, it is no longer “withholding of deportation to the country or countries specified by the special inquiry officer” under § 242.17(c) that he is applying for, and hence it is no longer “[an] application under this section.” This reading causes the provision to produce the consequence that acquiescence ordinarily produces in litigation: The litigant must live with the disposition acquiesced in, here the specification of default destinations. An agency wishing acquiescence to entail something more—wishing to change the normal rule from “object to the disposition now, or object never” to “object to the country you have an opportunity to object to now, or object never”—can be expected to describe that unusual arrangement with greater clarity than this provision contains. I am not prepared to find, on the basis of a default theory not mentioned by the Attorney General when he denied reopening, first put forward by counsel in oral argument at the very last stage of litigation, and never explicitly attributed to this particular regulation as its source, that this is what the INS interprets the provision to mean. Indeed, I have some doubt whether the first-ever, unforewarned adoption of that interpretation to produce the automatic cutoff of a statutorily conferred right would be lawful. Cf. NLRB v. Bell Aerospace Co., 416 U. S. 267, 294–295 (1974). I have no doubt whatever, however, that it would be an abuse of discretion to deny reopening if such a surprise cutoff should occur. III I have concluded that the denial of reopening in this case was justified neither by any of the theories of waiver and procedural default asserted by the INS (Part II), nor by the Attorney General’s “merits-deciding” discretion discussed in Abudu (Part I). Even so, it might be said, the act of reopening a concluded proceeding is itself a discretionary one. True—but as I discussed at the outset, it is not as discretion-