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

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

344

INS v. DOHERTY Opinion of Scalia, J.

otherwise participated” in persecution “on account of. . . political opinion,” § 1253(h)(2)(A).6 The Court of Appeals held that the Attorney General erred in refusing to reopen on this basis because, in its view, the Attorney General may never make such determinations without a hearing. 908 F. 2d, at 1116–1117. It based this conclusion on Abudu’s statement that the BIA’s authority to decide a reopening motion by “ ‘leap[ing] ahead’ ” to the substantive determination that the movant would in any event “ ‘not be entitled to the discretionary grant of relief ’ ” does not apply to the relief of withholding of deportation. 908 F. 2d, at 1117 (quoting 485 U. S., at 105). As my earlier discussion makes clear, however, the “leap over” substantive determination at issue in Abudu was the determination that the Attorney General would not exercise his discretion in favor of granting asylum. See supra, at 332–333. Our statement that that sort of “leap over” determination could not be made for withholding was simply a recognition of the fact that the Attorney General has no discretion as to that relief. Nothing in Abudu suggests, however, that reopening may not be denied with respect to withholding on the basis of a determination, clearly supported by the existing record, that the alien is statutorily ineligible for relief. There is no reason in principle why such a determination cannot be made (indeed, the prima facie case inquiry is simply an example of such a determination), and the Court of Appeals’ statement to the contrary seems to me wrong. 6 Section 243(h)(2) provides in relevant part that the mandatory obligation to withhold deportation does not apply to an alien if the Attorney General determines: “(A) [T]he alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; [or] . . . . . “(C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States. . . .” 8 U. S. C. §§ 1253(h)(2)(A), (C).