502us2$24k 01-22-99 08:25:35 PAGES OPINPGT
336
INS v. DOHERTY Opinion of Scalia, J.
“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.” Id., at 42. That much of a waiver was implicit in counsel’s commitment 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 328; “[r]espondent chose, however, to withdraw” that claim, ibid.; so it was reasonable for the Attorney General to prevent him from making any withholding 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 proceeding.” Unfortunately, however, § 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 dis-
