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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. Mter 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 Immigration 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 constituted 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 the 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 discre-


tion 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 promulgated 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 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. 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 withholding 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. 322-324.

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 selected Ireland. 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 determined 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 with-

Full Text of Opinion


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