Immigration and Naturalization Service (INS) v. Doherty
Decided on Jan. 15, 1992; 502 US 314


A. Issues Discussed: Governmental Authority (immigration), criminal procedure, 5th amendment

B. Legal Question Presented:

Did the Attorney General abuse his discretion in refusing to reopen the deportation proceedings against respondent to allow consideration of respondent's withdrawn claims for asylum and withholding of deportation?


A. Background:

Respondent, Irish national Joseph Patrick Doherty, entered the US illegally in 1982 before being found guilty by a Northern Ireland court of murdering a British officer. After Petitioner, the US Immigration and Naturalization Service (INS), located him and began deportation proceedings against him, Mr. Doherty applied for asylum. However, in 1986 he withdrew his application, at which time he conceded deportability, and designated Ireland as the country to which he wanted to be deported.

The Immigration Judge ordered deportation to Ireland. While an INS appeal to the US Attorney General challenging the designation site was pending, Doherty filed a motion 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 ordered respondent deported to the United Kingdom, rejecting Doherty’s designation 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.

Doherty’s motion to reopen was remanded to the Board of Immigration Appeals (BIA). The BIA granted Doherty’s motion to reopen his claim, but the BIA’s decision was later appealed by the INS and was reversed by the Attorney General. 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.

The US Supreme Court granted certiorari to review the case.

B. Counsel of Record:
Opposing Side
Mary Boresz Pike argued the cause for respondent. With her on the brief was Arthur C. Helton. Deputy Solicitor General Mahoney argued the cause for petitioner. On the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Edwin S. Kneedler, Barbara L. Herwig, and John C. Hoyle.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by David W. Rivkin, Michael W. Galligan, Lucas Guttentag, Steven R. Shapiro, and Carolyn Patty Blum; for Amnesty International et al. by Paul L. Hoffman; for the International Human Rights Law Group by Irwin Goldbloom; for Members of the United States Senate et al. by Carolyn Patty Blum, Kevin R. Johnson, and Joseph K. Brenner; and for the United Nations High Commissioner for Refugees by O. Thomas Johnson, Jr., Andrew I. Schoenholtz, Julian Fleet, and Ralph G. Steinhardt. No amici curiae briefs were filed on behalf of Petitioner.

"There is no statutory provision for reopening of a deportation proceeding, and the authority for such motions derives solely from regulations promulgated by the Attorney General... The regulation with which we deal here... 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... The granting of a motion to reopen is thus discretionary... and the Attorney General has 'broad discretion' to grant or deny such Motions...

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... The Attorney General also decided that Ireland’s implementation of its 1987 Extradition Act was neither relevant nor new.

We hold... that it was well within [the Attorney General’s] 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 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 regulatory 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. 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...

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...' 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 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 Vote: 0 Pro vs. 8 Con

  • Rehnquist, W. Con (Wrote majority opinion)
  • Kennedy, A. Con (Joined majority opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • Scalia, A. Con (Wrote opinion concurring in part and dissenting in part)
  • Souter, D. Con (Joined Scalia's opinion)
  • Stevens, J. Con (Joined Saclia's opinion)
  • Thomas, C. Took no part in the consideration or decision of this case.

The ACLU filed a brief as amicus curiae urging affirmance; the US Supreme Court reversed the ruling of the Court of Appeals for the Second Circuit in a 8-0 vote, giving the ACLU an apparent loss.