Immigration and Naturalization Service v. Doherty/Opinion of the Court
Respondent, Joseph Patrick Doherty, entered this country illegally in 1982. After more than eight years of proceedings 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 proceedings against respondent to allow consideration of respondent's claims for asylum and withholding of deportation which he had earlier withdrawn.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 Immigration 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 extradition 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 deportation proceeding against respondent resumed. On September 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 designation 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, concluding 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 appealed 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 overturned 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, 108 S.Ct. 904, 99 L.Ed.2d 90 (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. ----, 111 S.Ct. 950, 112 L.Ed.2d 1039 (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 warranting 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 statutorily 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.
* 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 proceeding, and the authority for such motions derive solely from regulations promulgated by the Attorney General. INS v. Rios-Pineda, 471 U.S. 444, 446, 105 S.Ct. 2098, 2100, 85 L.Ed.2d 452 (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, 104 S.Ct. 584, 588, n. 6, 78 L.Ed.2d 401 (1984), and the Attorney General has "broad discretion" to grant or deny such motions. Rios-Pineda, supra, 471 U.S., at 449, 105 S.Ct., at 2102. 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, 108 S.Ct., at 913. 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, 471 U.S., at 450, 105 S.Ct., at 2102. 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 discretionary grant of relief which he sought. Abudu, supra, 485 U.S., at 104-105, 108 S.Ct., at 911-912. 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, 108 S.Ct., at 911.
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, 108 S.Ct., at 909, n. 3.  In Abudu itself, the alien's claim for asylum was made after an order of deportation was issued, and therefore 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.
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' evidence 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 implementation 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 opinion in Abudu stating that the issue in such a proceeding is whether the alien has "reasonably explained his failure to apply for asylum initially" and has indeed offered "previously unavailable, material evidence," Abudu, supra, 485 U.S., at 104-105, 108 S.Ct., at 911-912, as negating a requirement 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 inconsistently 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 regulations, and in deciding questions under them. See INS v. Jong Ha Wang, 450 U.S. 139, 140, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (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.
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 explanation 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 proceedings.  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 Attorney General's denial of reopening on the ground that his reasoning was "incompatible with any motion to reopen. . . ." 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.
Justice THOMAS took no part in the consideration or decision of this case.
^1 Section 208 of the Immigration Act, 8 U.S.C. § 1158(a) provides, in pertinent part: "[T]he Attorney General shall establish a procedure for an alien physically present in the United States . . . to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee . . ." The term refugee is defined by 8 U.S.C. § 1101(a)(42)(A) as "any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. . . ."
^2 Respondent, who has been confined since his arrest by the INS, has also twice unsuccessfully filed for habeas corpus relief. Doherty v. Meese, 808 F.2d 938 (CA2 1986); Doherty v. Thornburgh, 943 F.2d 204 (CA2 1991).
^3 Title 8 U.S.C. § 1253(a) provides, in part: "[T]he deportation of an alien in the United States . . . shall be directed by the Attorney General to a country promptly 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. . . ."
^4 Initially, the INS moved for reconsideration of the BIA's March 1987 decision based on new evidence in the form of an affidavit by the Associate Attorney General. The BIA reopened the appeal but refused to remand to the Immigration Judge, instead finding that the affidavit offered by the INS was not new evidence and, in any event, did not change the BIA's conclusion. App. to Pet. for Cert. 134a-142a.
Withholding of deportation or return
"(1) The Attorney General shall not deport or return any alien . . . 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.
"(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that-
"(A) the 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. . . ."
^6 This is so, in part, because every request for asylum made after institution of deportation proceedings is also considered as a request for withholding of deportation under 8 U.S.C. § 1253(h) (1988 ed. and Supp.II). 8 CFR § 208.3(b) (1983).
^7 We concluded that the BIA was within its discretion to deny the respondent's motion to reopen both claims for relief because "respondent had not reasonably explained his failure to apply for asylum prior to the completion of the initial deportation proceeding," INS v. Abudu, 485 U.S., at 111, 108 S.Ct., at 915, not because the alien was not entitled on the merits to the relief sought. Cf. Justice SCALIA's opinion concurring in the judgment in part and dissenting in part, post, at 730.
^8 At the deportation hearing, counsel for the INS stated that the INS "oppose[d] the designation of the Republic of Ireland on the ground that the respondent's deportation to the Republic of Ireland would be prejudicial to the interest of the United States" and designated the United Kingdom as "an alternate country of deportation." App. 34.
^9 The Court of Appeals, 908 F.2d 1108, at 1115-1116 (CA2 1990), and Justice SCALIA, post at 9, suggest that the Attorney General's denial of respondent's designation of Ireland was not even foreseeable at the time of the deportation hearing. Given the statutory language of 8 U.S.C. § 1253(a) and the position taken by the INS at the deportation hearing, we find it unrealistic to assume that respondent was unaware of the possibility that his designation of Ireland might prove ineffective notwithstanding the fact that Ireland was willing to receive him. The Attorney General certainly does not abuse his discretion in failing to take such a view of the events in this case.
^10 Although 8 CFR § 208.11 (1987) and 8 CFR § 3.2 (1987) are nominally directed respectively at motions to reopen asylum claims and withholding of deportation claims, they are often duplicative in that an offer of material evidence which was not available at the time of the hearing would, in most cases, also be an adequate explanation for failure to pursue a claim at an earlier proceeding. As we explained in INS v. Abudu, 485 U.S. 94, 99, n. 3, 108 S.Ct. 904, 909, n. 3, 99 L.Ed.2d 90 (1988), the "application of 8 CFR § 208.11 (1987), which on its face applies only to asylum requests on reopening, will also usually be dispositive of its decision whether to reopen to permit withholding of a deportation request." See ante, at 324. The opportunity for the alien to plead in the alternative is an ample basis for the Attorney General to find, without abusing his discretion in a situation such as the present one, that the failure of the alien to so plead has not been reasonably explained.
^11 Indeed, in Abudu, supra, the alien had moved to reopen his deportation proceedings to pursue claims for asylum and withholding of deportation based on persecution he feared in his home country of Ghana in the event that his designation of England as the country of deportation proved ineffective. Id., at 97, 108 S.Ct., at 908.
^12 The Immigration Judge did prevent the INS from presenting evidence of additional grounds on which respondent could be deported once respondent had conceded deportability, but there is no indication that, had respondent not withdrawn his claims at the September 12, 1986, proceeding, the Immigration Judge would not have allowed respondent to bring evidence in support of his application for asylum and withholding of deportation. App. to Pet. for Cert. 157a.
^13 At the September 12, 1986, hearing, the Immigration Judge asked respondent's counsel: "I just want to be sure . . . there won't be any application for political asylum and/or withholding of deportation, correct?" to which respondent's counsel replied: "That is correct." The Immigration Judge asked again: "In other words, there is no application for relief from deportation that you will be making?" to which the response from counsel was again in the affirmative. App. 32.