Page:United States Reports 502 OCT. TERM 1991.pdf/501

 502us2$24k 01-22-99 08:25:35 PAGES OPINPGT

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

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Opinion of Scalia, J.

change Doherty’s designated country of deportation, concluding that the INS had failed to come forward with any evidence supporting its contention that deporting Doherty to Ireland would be prejudicial to the interests of the United States. On appeal, the BIA affirmed this action, and rejected the INS’ motion to reopen (remand) for production of such evidence, since it had been previously available. Although Attorney General Meese did not formally review the BIA’s denial of this motion, he effectively reversed it by receiving the proffered evidence into the record on appeal. Had the INS not procedurally defaulted during the deportation proceedings, and had the evidence it introduced been successful in securing at that level a rejection of his designated country, Doherty would clearly have been entitled to apply then for withholding. What the INS is here arguing, then, is that because it prevailed on appeal (after the forgiving of its procedural default), rather than before the IJ (with the observance of proper procedures), Doherty may be denied an opportunity to apply for withholding. The term “arbitrary” does not have a very precise content, but it is precise enough to cover this. IV The INS asserts that, even if the Attorney General erred in denying reopening on the basis of Doherty’s alleged procedural defaults, the decision must nonetheless be upheld on the ground that the Attorney General properly concluded that Doherty was statutorily ineligible for withholding of deportation. In reaching this conclusion, the Attorney General assumed arguendo (as do I) that Doherty had established a prima facie case of eligibility for withholding of deportation under § 243(h)(1). His finding of statutory ineligibility was based solely on the determination that there were “serious reasons for considering that [Doherty] has committed a serious nonpolitical crime,” 8 U. S. C. § 1253(h)(2)(C), and that Doherty had himself “assisted, or