342
Opinion of Scalia, J.
ary (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' 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' 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) (emphasis added).
The denial of reopening here takes on a particularly capricious coloration when one compares it with the considerable indulgence accorded to the INS' 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' request to
Page: Index Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: October 4, 2007