NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

                        Syllabus

IMMIGRATION AND NATURALIZATION SERVICE v. DOHERTY
certiorari to the united states court of appeals for the second circuit
No. 90-925.   Argued October 16, 1991-Decided January 15, 1992

Respondent Doherty, a citizen of both Ireland and the United Kingdom,
  was found guilty in absentia by a Northern Ireland court of, inter
  alia, the murder of a British officer in Northern Ireland.  After
  petitioner Immigration and Naturalization Service (INS) located him
  in the United States and began deportation proceedings against him,
  he applied for asylum under the Immigration and Nationality Act
  (Act), but he withdrew that application and a claim for withholding
  of deportation in 1986, at which time he conceded deportability and,
  pursuant to the Act, designated Ireland as the country to which he
  be deported.  The Immigration Judge, over the INS' challenge to the
  designation, ordered deportation to Ireland, and the Board of Immi-
  gration Appeals (BIA) affirmed.  While an INS appeal to the Attorney
  General was pending, Doherty moved to reopen his deportation
  proceedings on the basis that the 1987 Irish Extradition Act consti-
  tuted new evidence requiring reopening of his claims for withholding
  of deportation and asylum.  The Attorney General rejected Doherty's
  designation, ordered him deported to the United Kingdom, and
  remanded his motion to reopen to the BIA.  The BIA granted the
  motion to reopen, but the Attorney General reversed, relying on, inter
  alia, the independent grounds that (1) Doherty had not presented
  new evidence warranting reopening, and (2) he had waived his claims
  by withdrawing them in 1986.  The Court of Appeals affirmed the
  order denying Doherty's designation, but held that the Attorney
  General had abused his discretion in denying the motion to reopen.
  Among other things, the court found that the Attorney General had
  used an incorrect legal standard in overturning BIA's finding that
  Doherty had produced new material evidence and that, under INS v.
  Abudu, 485 U.S. 94, once an alien establishes a prima facie case for
  withholding of deportation and brings new evidence, the Attorney
  General is without discretion to deny a motion to reopen.
Held:The judgment is reversed.
908 F.2d 1108, reversed.
   The Chief Justice delivered the opinion of the Court with respect
  to Part I, concluding that the Attorney General did not abuse his
  discretion in denying the motion to reopen Doherty's deportation
  proceedings.  There is no statutory provision for reopening, and the
  authority for such motions derives solely from regulations promulgat-
  ed by the Attorney General.  INS v. Rios-Pineda, 471 U.S. 444, 446.
  The applicable regulation, 8 CFR 3.2, is couched solely in negative
  terms:  It specifies that motions to reopen shall not be granted unless
  it appears that evidence sought to be offered is material, was not
  available, and could not have been discovered or presented at the
  former hearing, without specifying conditions under which motions
  should be granted.  Thus, the granting of a motion to reopen is
  discretionary, INS v. Phinpathya, 464 U.S. 183, 188, n.6, and the
  Attorney General has ``broad discretion'' to grant or deny such
  motions.  Rios-Pineda, supra, at 449.  Motions for reopening immigra-
  tion proceedings are disfavored for the same reasons as are petitions
  for rehearing and motions for a new trial on the basis of newly
  discovered evidence.  When denial of a motion to reopen is based on
  a failure to prove a prima facie case for the relief sought or a failure
  to introduce previously unavailable, material evidence, abuse of
  discretion is the proper standard of review.  Abudu, supra, at 105.
  It is the proper standard regardless of the underlying basis of the
  alien's request for relief, 485 U.S., at 99, n.3, and, thus, applies
  equally to motions to reopen claims for asylum and claims for with-
  holding of deportation.  The proper application of these principles
  leads to the conclusion that the Attorney General did not abuse his
  discretion in denying reopening either on the ground that Doherty
  failed to adduce new evidence or on the ground that Doherty failed
  to satisfactorily explain his previous withdrawal of these claims.
  Pp.6-8.
   The Chief Justice, joined by Justice White, Justice Blackmun,
  and Justice O'Connor, concluded in Part II that, for the reasons
  stated by the Attorney General, it was well within his discretion to
  decide that neither the denial of Doherty's designation, nor the
  change in Irish extradition law, qualified as new material evidence
  to support reopening.  The Attorney General concluded that Doherty
  should have known that there was always a risk that deportation to
  Ireland would be denied, since the Attorney General is authorized to
  reject deportation to a country if he determines that it would be
  prejudicial to United States interests and since the INS objected to
  the designation at the hearing at which Doherty selecteland.  He
  also determined that the rejection of the designated country was the
  ultimate decision in the administrative process and therefore cannot
  constitute new evidence to justify reopening.  Additionally, he deter-
  mined that the Irish Extradition Act's implementation was neither
  relevant nor new, since the treaty upon which it was based had been
  signed six months before Doherty withdrew his claims and since a
  change in law ordinarily does not support a motion to reopen unless
  the change pertains to the rules of the proceeding at which deporta-
  tion was ordered.  Moreover, language in Abudu, supra, at 104-105,
  which the Court of Appeals interpreted as negating 8 CFR 3.2's
  requirement of unforeseeability, cannot bear that construction,
  particularly when Abudu also sets out verbatim the applicable
  regulation and when it is not uncommon to require that motions to
  reopen be based on matter which could not reasonably have been
  previously adduced.  Nor does the fact that the Attorney General
  disagrees with the BIA's conclusion support a finding that he abused
  his discretion.  The BIA is simply a statutory creature of the Attor-
  ney General, and he retains the final administrative authority in
  construing, and deciding questions under, the regulations.  Pp.8-11.
   The Chief Justice, joined by Justice Kennedy, concluded in Part
  III that the Attorney General did not abuse his discretion in finding
  that withdrawing his claims to secure a tactical advantage in the
  first hearing did not constitute a reasonable explanation for failing
  to pursue the claims at that hearing.  The INS allows aliens to plead
  in the alternative, and there was nothing that prevented Doherty
  from bringing evidence in support of his claims in case the Attorney
  General contested his designated country.  However, he chose instead
  to withdraw the claims, even when expressly questioned by the
  Immigration Judge.  Nothing in the reopening regulations forbids the
  Attorney General from adopting a narrow interpretation of regula-
  tions.  Pp.11-13.

  Rehnquist, C. J., announced the judgment of the Court and deliv-
ered the opinion of the Court with respect to Part I, in which White,
Blackmun, O'Connor, and Kennedy, JJ., joined, an opinion with
respect to Part II, in which White, Blackmun, and O'Connor, JJ.,
joined, and an opinion with respect to Part III, in which Kennedy, J.,
joined.  Scalia, J., filed an opinion concurring in the judgment in part
and dissenting in part, in which Stevens and Souter, JJ., joined.
Thomas, J., took no part in the consideration or decision of the case.
-------------------------------


NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
------
No. 90-925
------
IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER v. JOSEPH PATRICK DOHERTY
on writ of certiorari to the united states court of
appeals for the second circuit
[January 15, 1992]

  The Chief Justice announced the judgment of the Court
and delivered the opinion of the Court with respect to Part
I, an opinion with respect to Part II, in which Justice
White, Justice Blackmun and Justice O'Connor join,
and an opinion with respect to Part III, in which Justice
Kennedy joins.
  Respondent, Joseph Patrick Doherty, entered this country
illegally in 1982.  After more than eight years of proceed-
ings concerning Doherty's status in the United States, the
question presented here is whether the Attorney General
abused his discretion in refusing to reopen the deportation
proceedagainst respondent to allow consideration of
respondent's claims for asylum and withholding of deporta-
tion which he had earlier withdrawn.  We conclude that the
Attorney General did not abuse the broad discretion vested
in him by the applicable regulations.
  Respondent is a native of Northern Ireland and a citizen
of both Ireland and the United Kingdom.  In May 1980, he
and fellow members of the Provisional Irish Republican
Army ambushed a car containing members of the British
Army, and killed British Army Captain Herbert Richard
Westmacott.  He was tried for the murder of Westmacott in
Northern Ireland.  Before the court returned a verdict, he
escaped from the maximum security prison where he was
held; the court found him guilty in absentia of murder and
related charges, and sentenced him to life imprisonment.
  In 1982, respondent surreptitiously entered the United
States under an alias.  In June 1983, he was located by the
Immigration and Naturalization Service (INS), which
thereupon began deportation proceedings against him.
Respondent applied for asylum under 208 of the Immigra-
tion and Nationality Act, as added by the Refugee Act of
1980, 94 Stat. 105, 8  U. S. C. 1158.  The immigration
proceedings were suspended to allow completion of extradi-
tion proceedings which were initiated by the United States
at the request of the United Kingdom.
  In December 1984, United States District Judge Sprizzo,
acting as an extradition magistrate under 18 U. S. C.
3184, held that respondent was not extraditable because
his crimes fell into the political offenses exception to the
extradition treaty between the United States and the
United Kingdom.  In re Requested Extradition of Doherty,
599 F. Supp. 270, 272 (SDNY 1984).  The attempts of the
United States to attack this conclusion collaterally were
rebuffed.  United States v. Doherty, 615 F. Supp. 755
(SDNY 1985), aff'd, 786 F. 2d 491 (CA2 1986).
  When the extradition proceedings concluded, the deporta-
tion proceeding against respondent resumed.  On Septem-
ber 12, 1986, at a hearing before the Immigration Judge,
respondent conceded deportability and designated Ireland
as the country to which he be deported pursuant to 8
U. S. C. 1253(a).  In conjunction with this designation,
respondent withdrew his application for asylum and
withholding of deportation.  The INS unsuccessfully
challenged respondent's designation on the basis that
Doherty's deportation to Ireland would, in the language of
1253(a), ``be prejudicial to the interests of the United
States.''  The Immigration Judge found that the INS had
produced no evidence to support its objection to the designa-
tion and ordered that respondent be deported to Ireland.
App. to Pet. for Cert. 158a.  On March 11, 1987, the Board
of Immigration Appeals (BIA) affirmed the deportation
order, concluding that the INS had never before rejected a
deportee's designation and that rejection of a deportee's
country of designation is improper ``in the absence of clear
evidence to support that conclusion.''  Id., at 155a.
  The Government appealed the BIA's determination to the
Attorney General pursuant to 8 CFR 3.1(h)(iii) (1987).
While the order to deport respondent to Ireland was being
reviewed by the Attorney General, respondent filed a
motion to reopen his deportation proceedings on the basis
that the Irish Extradition Act, implemented by Ireland in
December 1987, constituted new evidence requiring that his
claims for withholding of deportation and asylum now be
reopened.  In June 1988, Attorney General Meese reversed
the BIA and ordered respondent deported to the United
Kingdom.  Respondent's designation was rejected by the
Attorney General on the basis that respondent committed
a serious crime in the United Kingdom and therefore to
deport respondent to any country other than the United
Kingdom to serve his sentence would harm the interests of
the United States.  The Attorney General remanded
respondent's motion to reopen for consideration by the BIA.
  The BIA granted respondent's motion to reopen, conclud-
ing that the 1987 Irish Extradition Act was a circumstance
that respondent could not have been expected to anticipate,
and that the result of his designation would now leave him
to be extradited from Ireland to the United Kingdom, where
he feared persecution.  The BIA's decision to reopen was ap-
pealed by the INS and was reversed by Attorney General
Thornburgh who found three independent grounds for
denying Doherty's motion to reopen.  The Court of Appeals
for the Second Circuit reviewed both the order of Attorney
General Meese which denied respondent's designation of
Ireland as the country of deportation and Attorney General
Thornburgh's order denying respondent's motion to reopen
his deportation proceeding.  It affirmed the Meese order,
but by a divided vote reversed the Thornburgh order.
Doherty v. United States Dept. of Justice, INS, 908 F. 2d
1108 (CA2 1990).  Attorney General Thornburgh had
abused his discretion in denying the motion to reopen,
according to the Court of Appeals, because he had over-
turned the BIA's finding that respondent had produced new
material evidence under an incorrect legal standard.  The
passing of the 1987 Irish Extradition Act in conjunction
with Attorney General Meese's denial of Ireland as
Doherty's country of deportation was new evidence, which
according to the Court of Appeals, entitled Doherty to have
his deportation proceedings reopened.
  The Court of Appeals also held that Attorney General
Thornburgh had erred in determining, on a motion for
reopening, that respondent was not entitled to the ultimate
relief requested.  Citing this Court's decision in INS v.
Abudu, 485 U. S. 94 (1988), the Court of Appeals held that
such a determination could not be made for the mandatory
relief of withholding of deportation, and that once an alien
establishes a prima facie case for withholding of deportation
and brings new evidence, the Attorney General is without
discretion to deny the motion to reopen.  In addition, the
Court of Appeals held that the Attorney General had
abused his discretion by relying on foreign policy concerns
in denying respondent's motion to reopen his claim for
asylum.  After examining the legislative history of 208 of
the Immigration and Nationality Act, the Court of Appeals
concluded that Congress intended foreign policy interests to
play no role in asylum determinations.  The Attorney
General had abused his discretion ``in denying Doherty's
application for reasons that congress sought to eliminate
from asylum cases . . . .''  Doherty v. United States Dept. of
Justice, INS, 908 F. 2d, at 1121.
  We granted certiorari, 498 U. S.     (1991), and now
decide that the Court of Appeals placed a much too narrow
limit on the authority of the Attorney General to deny a
motion to reopen deportation proceedings.  The Attorney
General based his decision to deny respondent's motion to
reopen on three independent grounds.  First, he concluded
that respondent had not presented new evidence warrant-
ing reopening; second, he found that respondent had waived
his claims to asylum and withholding of deportation by
withdrawing them at his deportation hearing in September
1986; and third, he concluded that the motion to reopen was
properly denied because Doherty's involvement in serious
nonpolitical crimes in Northern Ireland made him statutor-
ily ineligible for withholding of deportation, as well as
undeserving of the discretionary relief of asylum.  Because
we conclude that the Attorney General did not abuse his
discretion in denying the motion to reopen either on the
first or second of these grounds, we reverse the Court of
Appeals, and need not reach the third ground for denial of
reopening relied upon by the Attorney General.
                      I
  This is the fifth case in the last decade in which we have
dealt with the authority of the Attorney General and the
BIA to deny a motion to reopen deportation proceedings.
These cases establish several propositions.  There is no
statutory provision for reopening of a deportation proceed-
ing, and the authority for such motions derive solely from
regulations promulgated by the Attorney General.  INS v.
Rios-Pineda, 471 U. S. 444, 446 (1985).  The regulation with
which we deal here, 8 CFR 3.2 (1987), is couched solely in
negative terms; it requires that under certain circumstances
a motion to reopen be denied, but does not specify the
conditions under which it shall be granted:
  ``Reopening or reconsideration.
``. . . Motions to reopen in deportation proceedings shall
not be granted unless it appears to the Board that
evidence sought to be offered is material and was not
available and could not have been discovered or
presented at the former hearing . . . .''

The granting of a motion to reopen is thus discretionary,
INS v. Phinpathya, 464 U. S. 183, 188, n. 6 (1984), and the
Attorney General has ``broad discretion'' to grant or deny
such motions.  Rios-Pineda, supra, at 449.  Motions for
reopening of immigration proceedings are disfavored for the
same reasons as are petitions for rehearing, and motions for
a new trial on the basis of newly discovered evidence.  INS
v. Abudu, 485 U. S., at 107-108.  This is especially true in
a deportation proceeding where, as a general matter, every
delay works to the advantage of the deportable alien who
wishes merely to remain in the United States.  See INS v.
Rios-Pineda, supra, at 450.  In Abudu, supra, we stated
that there were ``at least'' three independent grounds on
which the BIA might deny a motion to reopen - failure to
establish a prima facie case for the relief sought, failure to
introduce previously unavailable, material evidence, and a
determination that even if these requirements were
satisfied, the movant would not be entitled to the discre-
tionary grant of relief which he sought.  Abudu, supra, at
104-105.  When denial of a motion to reopen is based on
the first two of these three grounds, abuse of discretion is
the proper standard of review.  485 U. S., at 105.
  We also noted in Abudu that the abuse of discretion
standard applies to motions to reopen -regardless of the
underlying basis of the alien's request [for relief].-  Id., at
99, n. 3.  In Abudu itself, the alien's claim for asylum was
made after an order of deportation was issued, and there-
fore by operation of the regulations, the alien had brought
a claim for withholding of deportation as well.  Ibid.  The
discretion which we discussed in Abudu, therefore, applies
equally to motions to reopen claims for asylum and claims
for withholding of deportation.
     We think that the proper application of these principles
leads inexorably to the conclusion that the Attorney
General did not abuse his discretion in denying reopening
either on the basis that respondent failed to adduce new
material evidence or on the basis that respondent failed to
satisfactorily explain his previous withdrawal of these
claims.
                     II
  The Attorney General determined that neither the denial
of respondent's designation of Ireland as the country of
deportation, nor the change in Irish extradition law,
qualified as new material evidence to support reopening of
respondent's deportation proceedings.  He explained that
since the very same statute which allows the alien to
designate a country for deportation also authorizes the
Attorney General to oppose that designation, the eventual
denial of respondent's designation could not be a ``new fact''
which would support reopening.  He stated that ``it is
inconceivable that anyone represented by counsel could not
know that there always existed a risk that the Attorney
General would deny respondent's deportation to Ireland to
protect the interests of the United States.''  App. to Pet. for
Cert. 66a.  This conclusion was based on 8 U. S. C. 1253(a)
which provides that the Attorney General shall direct the
alien be deported to the country designated by the alien -if
that country is willing to accept him into its territory,
unless the Attorney General, in his discretion, concludes
that deportation to such country would be prejudicial to the
interests of the United States.-  In addition, in this case,
the INS had objected to respondent's designation at the
very hearing at which his selection of Ireland as the
country of deportation was made.  The Attorney General
also concluded that his rejection of the designated country
was not a ``fact,'' reasoning that ``[t]he ultimate decision in
an administrative process cannot itself constitute `new' evi-
dence to justify reopening.  If an adverse decision were
sufficient, there could never be finality in the process.''  Id.,
at 67a.  He therefore concluded that the Government's
successful opposition to respondent's designation was
neither ``new,'' nor was it ``evidence.''
  The Attorney General also decided that Ireland's imple-
mentation of its 1987 Extradition Act was neither relevant
nor new.  By the time he issued his denial of the motion to
reopen, the question was whether respondent should be
deported to the United Kingdom.  And the treaty upon
which the Extradition Act was based had been signed six
months before respondent withdrew his asylum and
withholding of deportation claims in 1986.  He also noted
that a change in law ordinarily does not support a motion
to reopen unless the change pertains to the rules of the
proceeding at which deportation was ordered.
  The Court of Appeals took the view that the Attorney
General's insistence that the grounds adduced for reopening
have been ``unforeseeable'' was supported by ``[n]either the
regulations nor the applicable decisional law.''  Doherty v.
United States Dept. of Justice, INS, 908 F. 2d, at 1115.  But
the regulation here in question, 8 CFR 3.2 (1987) provides
in part that motions to reopen in deportation proceedings
``shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not
available and could not have been discovered or presented
at the former hearing . . . .''  The Court of Appeals seized
upon a sentence in our opiniobudu stating that the
issue in such a proceeding is whether the alien has ``reason-
ably explained his failure to apply for asylum initially'' and
has indeed offered ``previously unavailable, material
evidence,'' Abudu, supra, at 104-105, as negating a require-
ment of unforeseeability.  But this sentence, we think,
cannot bear that construction, particularly when the same
opinion sets out verbatim the applicable regulation quoted
above.  It is not at all uncommon to require that motions to
reopen proceedings be based on matter which could not
reasonably have been previously adduced; see, e. g., Fed.
Rule Civ. Proc. 60(b)(2) ``newly discovered evidence which
by due diligence could not have been discovered in time to
move for a new trial under Rule 59(b) . . . .''  We hold, for
the reasons stated in the opinion of the Attorney General,
that it was well within his broad discretion in considering
motions to reopen to decide that the material adduced by
respondent could have been foreseen or anticipated at the
time of the earlier proceeding.  The alien, as we discuss
more fully in Part III, infra, is allowed to plead inconsis-
tently in the alternative in the original proceeding and
thereby raise any claims that are foreseeable at that time.
     The Court of Appeals also took the view that since the
BIA had granted the motion to reopen, the Attorney
General was in some way limited in his authority to
overturn that decision.  But the BIA is simply a statutory
creature of the Attorney General, to which he has delegated
much of his authority under the applicable statutes.  He is
the final administrative authority in construing the regula-
tions, and in deciding questions under them.  See INS v.
Jong Ha Wang, 450 U. S. 139, 140 (1981) (per curiam).  The
mere fact that he disagrees with a conclusion of the BIA in
construing or applying a regulation cannot support a
conclusion that he abused his discretion.
                     III
  The Attorney General found, as an independent basis for
denying reopening, that respondent had waived his claims
for relief by withdrawing them at the first hearing to obtain
a tactical advantage.  We disagree with the Court of
Appeals' rejection of this reason to deny reopening.
Doherty, 908 F. 2d, at 1122.  The Attorney General's
reasoning as to respondent's waiver of his claims is the
functional equivalent of a conclusion under 8 CFR 208.11
(1987) that respondent has not reasonably explained his
failure to pursue his asylum claim at the first hearing.  In
other words, the Attorney General found that withdrawing
a claim for a tactical advantage is not a reasonable explana-
tion for failing to pursue the claim at an earlier hearing.
  Precisely because an alien may qualify for one form of
relief from deportation, but not another, the INS allows
aliens to plead in the alternative in immigration proceed-
ings.  There was nothing which prevented respondent
from bringing evidence in support of his asylum and
withholding of deportation claims at his first deportation
proceeding, in case the Attorney General did contest his
designation of Ireland as the country to which he be
deported.  Respondent chose, however, to withdraw those
claims, even when expressly questioned by the Immigration
Judge.
  The Court of Appeals rejected this ground for the Attor-
ney General's denial of reopening on the ground that his
reasoning was ``incompatible with any motion to re-
open . . . .''  Doherty, supra, at 1122.  It may be that the
Attorney General has adopted a narrow, rather than a
broad, construction of the regulations governing reopening,
but nothing in the regulations forbids such a course.  The
Attorney General here held that respondent's decision to
withdraw certain claims in the initial proceedings was a
``deliberate tactical decision,'' and that under applicable
regulations those claims could have been submitted at that
time even though inconsistent with other claims made by
the respondent.  We hold that this basis for the Attorney
General's decision was not an abuse of discretion.
  The judgment of the Court of Appeals is
                                    Reversed.

  Justice Thomas took no part in the consideration or
decision of this case.
----------------------

SUPREME COURT OF THE UNITED STATES
--------
No. 90-925
--------
IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER v. JOSEPH PATRICK DOHERTY
on writ of certiorari to the united states court of
appeals for the second circuit
[January 15, 1992]

  Justice Scalia, with whom Justice Stevens and
Justice Souter join, concurring in the judgment in part
and dissenting in part.
  I agree that the Attorney General's broad discretion to
deny asylum justified his refusal to reopen the proceedings
so that Doherty might apply for that relief; but a similar
rationale is not applicable to the denial of reopening for the
withholding-of-deportation claim.  (Part I below.)  In my
view the Immigration and Naturalization Service (INS) is
wrong in asserting that there was waiver or procedural
default of the withholding claim (Part II); and the Attorney
General abused his discretion in decreeing that, for those or
other reasons unrelated to the merits of the withholding
claim, Doherty would not be allowed reopening to apply for
that relief (Part III).  There may be merit in the INS's
alternative argument that denial of reopening for the
withholding claim was proper because Doherty was statuto-
rily ineligible for withholding; whether that is so cannot be
determined without a detailed review of the factual record.
(Part IV.)
                      I
  I do not question the Court's premise that the decision
whether to permit reopening of an immigration proceeding
is discretionary.  Ante, at 7.  Even discretion, however, has
its legal limits.  The question before us here is whether the
decision not to permit reopening in the present case was an
abuse of discretion according to those standards of federal
administration embodied in what we have described as ``the
`common law' of judicial review of agency action,'' Heckler v.
Chaney, 470 U.S. 821, 832 (1985).  If it was such an abuse
of discretion, courts are commanded by the judicial review
provisions of the Administrative Procedure Act (APA) to
``hold [it] unlawful and set [it] aside.''  5 U.S.C. 706(2).
(Although the detailed hearing procedures specified by the
APA do not apply to hearings under the Immigration and
Nationality Act (INA), see Marcello v. Bonds, 349 U.S. 302
(1955), the judicial review provisions do, see Shaughnessy
v. Pedreiro, 349 U.S. 48 (1955).)
  Whether discretion has been abused in a particular case
depends, of course, upon the scope of the discretion.  It is
tempting to believe, as the Court does, that the Attorney
General's discretion to deny reopening is extremely broad,
simply because the term ``reopening'' calls to mind the
reopening of a final judgment by a court-a rarely accorded
matter of grace.  In fact, however, the nature of the INS
regulations is such that the term ``reopening'' also includes,
to a large extent, what is in the judicial context the much
more common phenomenon called ``remand for further
proceedings.''  Under the INS system, reopening is the sole
means of raising certain issues that acquire legal relevance
or practical importance only by virtue of the decision on
appeal.  A remand for that purpose often requires a
``reopening'' of the original hearing, and may be expressly
denominated as such.  See, e.g., Matter of Doural, 18 I & N
Dec. 37 (BIA 1981).  Permission to ``reopen'' in this sense
cannot be denied with the breadth of discretion that the
Court today suggests.
  A second reason that the Court mistakes the scope of the
discretion at issue here is that it relies upon ``broad
discretion'' statements in cases such as INS v. Rios-Pineda,
471 U.S. 444, 449 (1985), which involved reopening in order
to apply for substantive relief that was itself subject to the
discretion of the Attorney General.  That is not the case
here.  Section 243(h) of the INA, as amended, provides that,
subject to four enumerated exceptions:
   ``The Attorney General shall not deport or return any
   alien (other than an alien described in section
   241(a)(4)(D) [8 U.S.C. 1251(a)(4)(D)]) to a country if
   the Attorney General determines that such alien's life
   or freedom would be threatened in such country on
   account of race, religion, nationality, membership in a
   particular social group, or political opinion.''  8 U.S.C.
   1253(h)(1) (emphasis added).
The imperative language of this provision is not an acci-
dent.  As we recognized in INS v. Cardoza-Fonseca, 480
U.S. 421, 428-429 (1987), the nondiscretionary duty
imposed by 243(h) parallels the United States' mandatory
nonrefoulement obligations under Article 33.1 of the United
Nations Convention Relating to the Status of Refugees,
189 U.N.T.S. 150, 176 (1954), reprinted in 19 U.S.T. 6259,
6276, T.I.A.S. No. 6577 (1968).  Before 1980, 243(h)
merely ``authorized'' the Attorney General to withhold
deportation in the described circumstances, but did not
require withholding in any case, 8 U.S.C. 1253(h) (1976
ed., Supp. III).  We presumed in Cardoza-Fonseca, however,
that after 1968, when the United States acceded to this
provision of the Convention, the Attorney General ``honored
the dictates'' of Article 33.1 in administering 243(h).  480
U.S., at 429.  In 1980 Congress removed all doubt concern-
ing the matter by substituting for the permissive language
of 243(h) the current mandatory provision, ``basically
conforming it to the language of Article 33 [of the Conven-
tion].''  INS v. Stevic, 467 U.S. 407, 421 (1984).
  Because of the mandatory nature of the withholding-of-
deportation provision, the Attorney General's power to deny
withholding claims differs significantly from his broader
authority to administer discretionary forms of relief such as
asylum and suspension of deportation.  Our decision in INS
v. Abudu, 485 U.S. 94 (1988), reflects this.  We there
identified three independent grounds upon which the Board
of Immigration Appeals (BIA) may deny a motion to reopen:
   ``First, it may hold that the movant has not established
   a prima facie case for the underlying substantive relief
   sought. . . .  Second, the BIA may hold that the movant
   has not introduced previously unavailable, material evi-
   dence, 8 CFR 3.2 (1987), or, in an asylum application
   case, that the movant has not reasonably explained his
   failure to apply for asylum initially, 8 CFR 208.11
   (1987). . . .  Third, in cases in which the ultimate grant
   of relief is discretionary (asylum, suspension of deporta-
   tion, and adjustment of status, but not withholding of
   deportation), the BIA may leap ahead, as it were, over
   the two threshold concerns . . . , and simply determine
   that even if they were met, the movant would not be
   entitled to the discretionary grant of relief.''  485 U.S.,
   at 104-105 (emphasis added).
The first two grounds (prima facie case and new evidence/
reasonable explanation) are simply examples of, respective-
ly, the broader grounds of statutory ineligibility and
procedural default.  The third ground reflects an under-
standing that the Attorney General's power to grant or
deny, as a discretionary matter, various forms of
nonmandatory relief includes within it what might be called
a ``merits-deciding'' discretion to deny motions to reopen,
even in cases where the alien is statutorily eligible and has
complied with the relevant procedural requirements.  This
third ground validates, in my view, the Attorney General's
denial of reopening with respect to Doherty's claim for
asylum, which is a nonmandatory remedy, 8 U.S.C.
1158(a).  Irrespective of foreign policy concerns and
regardless of whether Doherty's crimes were ``political,'' it
was within the Attorney General's discretion to conclude
that Doherty is a sufficiently unsavory character not to be
granted asylum in this country.
  But as the emphasized phrase in the above-quoted
excerpt from Abudu suggests, there is no analogue to this
third ground in the context of mandatory relief.  See also
485 U.S., at 106 (``[Our prior decisions] have served as
support for an abuse-of-discretion standard of review for the
third type of denial, where the BIA simply refuses to grant
relief that is itself discretionary in nature, even if the alien
has surmounted the requisite thresholds . . .'') (emphasis
added).  There is no ``merits-deciding'' discretion to deny
reopening in the context of withholding of deportation.  The
Attorney General could not deny reopening here-as he
could in Abudu, Rios-Pineda, and the other case cited by
the Court, INS v. Phinpathya, 464 U.S. 183 (1984)-simply
because he did not wish to provide Doherty the relief of
withholding.
                     II
  The INS puts forward three procedural bases for rejecting
Doherty's motion to reopen.  In my view none is valid.
                      A
  The Attorney General asserted, as one of his reasons for
denying the reopening-a reason only two members of the
Court accept, ante, at 11-13-that Doherty ``waived'' his
claims by withdrawing them at his deportation hearing.  I
do not see how that can be.  The deportation proceeding
had begun by the filing and service of an order to show
cause why Doherty should not be deported, which order
clearly contemplated that he would be deported to the
United Kingdom.  He initially responded to this order (and
to the United Kingdom's simultaneous efforts to obtain
extradition) by requesting asylum, and under 8 CFR
208.3(b) (1983), this request was also treated as an
application for withholding of deportation under 243(h) of
the INA.  After the extradition proceedings had concluded
in his favor, Doherty changed his mind, and sought to
withdraw the request and application, concede deportabili-
ty, and designate Ireland as his country of deportation,
pursuant to 8 U.S.C. 1253(a).  (Doherty's motive, apparent-
ly, was to get the deportation hearing over and himself out
of the country quickly, before conclusion of a new extradi-
tion treaty between the United States and the United
Kingdom.)  I would agree that when this withdrawal was
permitted by the Immigration Judge (IJ), it would have
constituted a waiver of Doherty's right to withholding if
some regulation precluded resubmission of a withdrawn
application.  No such regulation exists, however; the
withdrawal of a withholding application no more prevents
later reapplication than the withdrawal of an application
for Social Security benefits prevents later reapplication.
  In addition to the mere fact of withdrawal, there was the
following exchange between the IJ and counsel for Doherty:
   ``Q.  . . . I just want to be sure . . . there won't be any
   application for political asylum and/or withholding of
   deportation, correct?
   ``A.  That is correct.
   ``Q.  No application for voluntary departure?
   ``A.  That is correct.
   ``Q.  In other words, there is no application for relief
   from deportation tou will be making?
   ``A.  That is correct.''
The IJ engaged in this questioning in order to determine
whether he would accept the proposal of Doherty's counsel
to concede deportability and designate a country, instead of
proceeding with further proof of deportability.  In that
context, the only commitment reasonably expressed by the
above quoted exchange, it seems to me, was a commitment
not to seek withholding if the proposed designation was
allowed.  Doherty thereby waived, I think, the right to seek
withholding if the United Kingdom should be specified as
the ``alternate'' destination, and if Ireland, though accepted
as his designated country of deportation, should refuse to
accept him.  This is confirmed by the following exchange
between the IJ and Doherty's counsel later in the hearing,
after the Government had requested specification of the
United Kingdom as the ``alternate'' destination:
   ``Q.  And, what about the other issue about the alter-
   nate designation?  What if Eire doesn't accept him?
   ``A.  Your Honor, we are assured that Ireland will
   accept him and that there is no basis under Irish law
   not to accept him.
   ``Q.  All right.  So, you have no objection, then, to the
   United Kingdom and Colonies being designated as an
   alternate?
   ``A.  That's correct, Your Honor.''
That much of a waiver was implicit in counsel's commit-
ment not to raise a withholding claim if the proposed
concession of deportability and designation of country were
accepted.  But I do not think one can reasonably find in the
record any waiver, any commitment as to what Doherty
would do, if the proposed designation of country was not
accepted-which is what ultimately happened here.
  The Chief Justice, joined by Justice Kennedy, suggests
another, more subtle, theory of waiver: Doherty waived his
legal right to withholding because he did not apply for it as
soon as possible.  ``There was nothing which prevented
respondent'' from making his withholding claim against the
United Kingdom as the specified alternate country of
deportation, ante, at 12; ``[r]espondent chose, however, to
withdraw'' that claim, ibid.; so it was reasonable for the
Attorney General to prevent him from making any with-
holding claim against the United Kingdom in any context.
To state this argument is to expose its frailty; it simply
does not follow.  Unless there is some rule that says you
must object to a country named in any capacity as soon as
the opportunity presents itself, there is no apparent reason
why the failure to do so should cause the loss of a legal
right.  The Chief Justice suggests that there is such a
rule-viz., 8 CFR 208.11 (1987), which requires that aliens
who request reopening for relief from deportation must
``reasonably explain the failure to request'' that relief ``prior
to the completion of the exclusion or deportation proceed-
ing.''  Unfortunately, however, 8 CFR 208.11 applies only
to asylum.  Far from establishing a ``raise-it-as-soon-as-
possible'' rule for withholding claims, this provision by
negative implication disclaims it.  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 deport-
ability and designation of Ireland; only when that accep-
tance was withdrawn did I withdraw my abstention; and
until then the claim had absolutely no practical impor-
tance.''  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 of the action taken, or as the consequence prescribed
by law.  There was no waiver here.
                      B
  Another reason the Attorney General gave for denying
reopening-and which the plurality accepts, see ante, at
8-11-is that Doherty's December 1987 motion failed to
comply with the regulatory requirements that it identify
``new facts to be proved at the reopened hearing,'' 8 CFR
3.8(a) (1987), and that it show the ``evidence sought to be
offered is material and was not available and could not
have been discovered or presented at the former hearing,''
3.2.  The Court of Appeals concluded that Doherty had
satisfied this burden by establishing that there had been a
material change in Irish law, and that Attorney General
Meese's order had subsequently changed Doherty's desig-
nated country of deportation to one in which he believed he
would be subject to persecution.  908 F.2d 1108, 1115-1116
(CA2 1990).
  I agree with the INS that the asserted change in Irish
law does not satisfy the reopening requirements because it
was not ``material'' at the time the BIA first ruled on the
motion to reopen in November 1988.  By then Attorney
General Meese had already ordered Doherty deported to the
United Kingdom instead of Ireland, and any change in Irish
law was no more relevant to his withholding claim than
would be a change in the law of any other country to which
he was not being returned.  But the Attorney General's
alteration of Doherty's designated country of deportation is
another matter.  Of course this is not what one would
normally think of as a ``new fac[t] to be proved at the
reopened hearing,'' or ``evidence . . . to be offered.''  But the
words can technically reach that far, and unless they are
given such an expansive meaning the regulations make no
sense, because they do not allow obviously necessary
remands.  Suppose, for example, that the Attorney General
had changed Doherty's primary destination, not to the
United Kingdom, but to some country that the IJ had not
designated as an alternate destination.  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 fact'' or ``evidence [that]
. . . was not available'' other than the altered disposition.
The INS concedes, moreover, that a change in our immigra-
tion laws after deportation has been ordered is a proper
basis for reopening-yet that is equally difficult to describe
as a ``new fact'' or ``evidence.''
  The Attorney General argued, and the INS repeats the
argument here, that ``[t]he ultimate decision in an adminis-
trative 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's 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 hear-
ing . . . .''  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 designa-
tion will not accept him or fails to provide timely notice of
acceptance.  It then continues: ``The respondent shall be
advised that pursuant to section 243(h) of the [INA] he may
apply for temporary withholding of deportation to the
country or countries specified by the special inquiry officer
[i.e., Immigration Judge] . . . .''  In my view this provision
simply means that the respondent must accept the default
specifications of the IJ unless he objects to them at the
hearing.  (Doherty chose not to do so because, having
already received assurances from the Irish Government, he
had no concern that the default specification would ever
take effect and did not wish to protract the proceeding.)
The provision in my view does not mean what the INS now
asserts (if this is the regulation it has in mind): that if a
respondent fails to object to a particular country as a
default destination he cannot later object when that country
is substituted as his primary destination.  For when he
objects to a country that has been substituted as the
primary destination, it is no longer ``withholding of deporta-
tion 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 conse-
quence 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 particu-
lar 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 statutori-
ly 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
discretionary (i.e., is not subject to as broad a scope of
discretion) as the term ``reopening'' might suggest.  Surely
it would be unlawful to deny reopening (``remand'' would be
a better word) when the decision of the Attorney General
substitutes for the alien's designated country of deportation
a country that was not an ``alternate'' specified by the IJ, so
that the alien was not entitled to challenge it at the hearing
at all.  It is also, in my view, an ``abuse of discretion,'' if not
indeed positively contrary to law, to deny ``reopening'' when
the Attorney General's decision substitutes a country that
was an alternate, at least where, as here, (1) the alien had
assurance that the country of primary destination would
accept him, and (2) there was no clear indication in the
INS's rules or practice that a country not objected to as an
alternate could not later be objected to as the primary
designation.  That this is beyond the permissible foreclosure
of mandatory relief such as withholding is suggested by the
negative implication of the INS's own regulation entitled
``Reopening or reconsideration,'' which reads in part:
   ``[N]or shall any motion to reopen for the purpose of
   affording the alien an opportunity to apply for any form
   of discretionary relief be granted if it appears that the
   alien's right to apply for such relief was fully explained
   to him and an opportunity to apply therefor was
   afforded him at the former hearing unless the relief is
   sought on the basis of circumstances which have arisen
   subsequent to the hearing.''  8 CFR 3.2 (1987) (empha-
   sis added).
  The denial of reopening here takes on a particularly
capricious coloration when one compares it with the
considerable indulgence accorded to the INS's procedural
defaults in the same proceeding-and when one recognizes
that it was precisely that indulgence which placed Doherty
in the position of being unable to present his withholding
claim.  During the deportation hearing, the IJ rejected the
INS's request to 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's motion to reopen (re-
mand) 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 befor 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 with-
holding 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 otherwise participated'' in persecution ``on
account of . . . political opinion,'' 1253(h)(2)(A).
  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 determi-
nations 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 ``leaping 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 (citing 485 U.S., at 105).  As my earlier
discussion makes clear, however, the ``leap-over'' substan-
tive 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 4-6.  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.
  The Court of Appeals also concluded that an evidentiary
hearing is always necessary for withholding claims because
the types of issues they present-for example, whether an
alien's serious crimes were ``political''-``raise formidable
questions of fact that cannot be adequately resolved in the
absence of an evidentiary record.''  908 F.2d, at 1117.  That
is usually true, but surely not always; as in the ordinary
civil context, there will be cases in which the paper record
presented in connection with a claim, see Fed. Rule Civ.
Proc. 56, or the record of an earlier hearing, will establish
uncontroverted facts showing that the claim fails as a
matter of law.  Indeed, we recognized in Abudu that an
evidentiary hearing may be denied if an alien requesting
reopening fails to make a prima facie case for the relief
sought, 485 U.S., at 104, despite the fact-intensive nature
of the questions involved.
  Concluding that the Court of Appeals erred in applying a
per se rule that withholding claims cannot be resolved
without an evidentiary hearing, I would vacate that portion
of its judgment which orders a hearing.  Before such an
order can be entered, the court must consider whether the
record before the Attorney General was sufficiently devel-
oped that, taken together with matters that are properly
subject to notice, it provided the requisite degree of support
for the conclusion that the serious crimes Doherty has
admitted committing were ``nonpolitical.''  I would remand
the case to the Court of Appeals for consideration under
that standard.
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