Respondent, a native and citizen of Ghana, overstayed his visa.
After he pleaded guilty in 1981 to drug charges, deportation
proceedings were initiated, at which he expressly declined to seek
asylum as a refugee. In 1982, he was ordered deported, and in 1984,
the Board of Immigration Appeals (BIA) dismissed his appeal. In
1985, while his petition for review in the Court of Appeals was
pending, respondent filed a motion with the BIA requesting a
reopening of his deportation proceeding to enable him to apply for
asylum and a withholding of deportation. He claimed that he had a
well-founded fear that, if he was returned to Ghana, his life and
freedom would be threatened by the government that had seized power
in 1981. Moreover, in 1984, he had received a surprise visit from a
former acquaintance who had become a Ghana government official and
who, respondent believed, was attempting to entice him to return in
order to force him to disclose the whereabouts of his brother and
other government enemies. The BIA denied respondent's motion both
on the ground that he had failed to make out a
prima facie
case of eligibility for asylum and on the alternative ground that
he had failed to explain reasonably his decision not to request
asylum in the first instance. The BIA noted that all of the facts
set forth in the motion had been available to respondent at the
time of the deportation hearing, except for the 1984 visit, which
may have been in fact a purely social visit. The Court of Appeals
consolidated respondent's petitions for review and affirmed the
deportation order, but reversed the order denying the motion to
reopen and remanded for further proceedings. Stating that the sole
issue was whether respondent had made a
prima facie case
for reopening, the court ruled that the appropriate standard of
judicial review was the strict standard that would be applied when
passing on a motion for summary judgment, rather than an
abuse-of-discretion standard.
Held:
1. Regardless of what may be the appropriate standard of
judicial review when the BIA holds that the movant for reopening
deportation proceedings has not established a
prima facie
case for the underlying relief sought (an issue not decided here),
the abuse-of-discretion standard of review is appropriate when the
BIA's denial of a motion to reopen
Page 485 U. S. 95
is based on its finding that the movant has not introduced
previously unavailable, material evidence or, in an asylum
application case, that the movant has not reasonably explained his
failure to apply for asylum initially. The reasons why motions to
reopen are disfavored in deportation proceedings are comparable to
those that apply to petitions for rehearing and to motions for new
trials on the basis of newly discovered evidence -- particularly
the strong public interest in bringing litigation to a close as
promptly as is consistent with the interest in giving the
adversaries a fair opportunity to develop and present their
respective cases. The appropriate analogy is not a motion for
summary judgment but, instead, a motion for a new trial in a
criminal case on the basis of newly discovered evidence, as to
which the moving party bears a heavy burden. Pp.
485 U. S.
104-110.
2. If respondent had made a timely application for asylum,
supported by the factual allegations and exhibits set forth in his
motion to reopen, the Immigration Judge would have been required to
grant him an evidentiary hearing. However, an alien who has already
been found deportable has a much heavier burden when he first
advances his request for asylum in a motion to reopen. The BIA did
not abuse its discretion when it held that respondent had not
reasonably explained his failure to apply for asylum prior to the
completion of the initial deportation proceeding. Pp.
485 U. S.
110-111.
802 F.2d 1096, reversed.
STEVENS, J., delivered the opinion of the Court, in which all
other Members joined, except KENNEDY, J., who took no part in the
consideration or decision of the case.
Page 485 U. S. 96
JUSTICE STEVENS delivered the opinion of the Court.
Regulations promulgated by the Attorney General authorize
deportable aliens to file motions to reopen their deportation
proceedings to request asylum on the basis of newly discovered
evidence. Denials of such motions are subject to judicial review in
the United States courts of appeals. The question in this case is
whether those courts should review such Board of Immigration
Appeals (BIA) denials under an abuse-of-discretion standard, as
petitioner contends, or under the strict standard that would be
applied when passing on a motion for summary judgment, as the Court
of Appeals held. 802 F.2d 1096 (CA9 1986). Consistently with our
prior cases confirming the BIA's broad discretion in considering
motions to reopen, we conclude that the abuse-of-discretion
standard applies, and therefore reverse the judgment of the Court
of Appeals.
I
Respondent, a native and citizen of Ghana, first entered the
United States in 1965 as a student. While attending medical school
in 1973, he spent his summer vacation in Ghana, and then reentered
the United States on a student visa that authorized him to remain
until 1976. After becoming a licensed physician, he married an
American citizen and overstayed his visa. In 1981, he pleaded
guilty to charges of attempting to obtain narcotic drugs (Demerol)
by fraud. In due course, deportation proceedings were initiated,
and respondent designated England as the country of deportation if
necessary, and expressly declined to seek asylum as a refugee. On
July 1, 1982, the Immigration Judge ordered him deported, [
Footnote 1] and on August 14, 1984, the
BIA dismissed his appeal.
Page 485 U. S. 97
Respondent filed a petition for review in the Court of Appeals
for the Ninth Circuit. While that petition was pending, on February
1, 1985, respondent filed a motion with the BIA requesting a
reopening of his deportation proceeding to enable him to apply for
asylum and a withholding of deportation. In that motion, which was
supported by affidavits and other exhibits, respondent claimed that
he had a well-founded fear that, if England did not accept him and
he was returned to Ghana, his life and freedom would be threatened
by the regime in power. His fear was based largely on the facts
that, after the current government seized power in 1981, it had
carried out a systematic campaign of persecution against its
political enemies and that respondent's brother and certain close
friends were among the targets of that campaign. Moreover, in 1984,
respondent had received an unsolicited and surprise visit from a
former acquaintance who had become a high official in the Ghana
government. The visitor invited respondent to return to Ghana,
ostensibly because qualified physicians are in short supply, but
respondent concluded that his visitor actually wanted to entice him
to return in order to force him to disclose the whereabouts of his
brother and other enemies of the government.
The BIA first stated the standard for granting motions to reopen
deportation proceedings in cases such as this:
"A motion to reopen deportation proceedings for the purpose of
applying for asylum or withholding of deportation will only be
granted where
prima facie eligibility for such relief has
been established and where the alien has reasonably explained his
failure to assert the claim prior to completion of the deportation
hearing. 8 CFR § 208.11. . . . Nor will reopening be granted unless
the evidence sought to be offered is material, was not available,
and could not have been discovered or presented at
Page 485 U. S. 98
the time of the original hearing. 8 CFR §§ 3.2, 103.5, 242.22. .
. ."
App. to Pet. for Cert. 15a. The BIA then denied respondent's
motion to reopen on both § 208.11 and
prima facie case
grounds, either of which would have sufficed. First, it held that
respondent had not reasonably explained his failure to request
asylum prior to the completion of the deportation proceedings, as
required by Immigration and Naturalization Service (INS or Agency)
regulations. [
Footnote 2] In
support of this holding, the BIA noted that the Immigration Judge
had continued the deportation hearing from November 10, 1981, until
April 29, 1982, to give respondent an opportunity to apply for
asylum, but that respondent had expressly declined to do so, and
further, that all of the facts set forth in the motion -- except
for the surprise visit in 1984 -- had been available to respondent
at the time of the hearing. With respect to the visit, the BIA
observed that
"the respondent's visitor was admittedly a longtime friend of
the respondent's who in fact may have been paying a purely social
visit."
App. to Pet. for Cert. 17a.
Second, the BIA also held that the facts set forth in the motion
to reopen did not show either a clear probability of persecution
within the meaning of § 243(h) of the Immigration and Nationality
Act (Act), 66 Stat. 214, as amended, 8
Page 485 U. S. 99
U.S.C. § 1253(h), [
Footnote
3] or that respondent was eligible for asylum as a "refugee,"
see 8 U.S.C. § 1101(a)(42), under § 208 of the Act, 8
U.S.C. § 1158. [
Footnote 4] In
support of this holding, the BIA noted that no affidavit from his
brother had been
Page 485 U. S. 100
offered, and that there was no satisfactory explanation of the
details of respondent's relationship with the enemies of the
government or the reasons why that relationship might lead to his
persecution. The BIA concluded that his conjectures about probable
threats were too speculative to constitute a
prima facie
showing of eligibility for either asylum or withholding of
deportation.
When respondent petitioned for review of the order denying his
motion to reopen, the Court of Appeals consolidated that petition
with his pending petition to review the original order of
deportation. The court affirmed the deportation order, [
Footnote 5] but reversed the order
denying the motion to reopen and remanded for an evidentiary
hearing on the asylum and withholding of deportation claims. In
support of the latter holding, the court began by noting that,
although the BIA has "wide discretion" to deny motions to reopen,
and although such denials are normally reviewed only for "abuse of
discretion," in this case "the sole issue" was whether respondent
had "presented a
prima facie case for reopening." 802 F.2d
at 1099-1100. The court stated that
"[w]hen the Board restricts its decision [refusing to reopen] to
whether the alien has established a
prima facie case, it
is only this basis for its decision that we review."
Id. at 1100 (internal quotation omitted). The court
then reasoned:
"Upon motion to reopen, the Board must draw reasonable
inferences from the facts in favor of the petitioner. A motion to
reopen is analogous to a motion for summary judgment; each is
accompanied by affidavits and other evidentiary material and may be
granted if the motion presents 'proof that will support the desired
findings [of a
prima facie case] . . . until it is
contradicted or overruled by other evidence.'
Maroufi. v.
INS, 772 F.2d 597, 599 (9th Cir.1985). In both cases,
inferences are to
Page 485 U. S. 101
be drawn in favor of the party whose entitlement to further
proceedings is at stake: the nonmoving party under Fed.R.Civ.P. 56
and the alien seeking reopening under 8 CFR 3.2.
See, e.g.,
United States v. Diebold, Inc., 369 U. S.
654,
369 U. S. 655 (1962)
('choice of inferences to be drawn from the subsidiary facts
contained in the affidavits . . . submitted [is inappropriate]. On
summary judgment, the inferences to be drawn from the underlying
facts contained in such materials must be viewed in the light most
favorable to the party opposing the motion.'). . . ."
"[F]or purposes of the limited screening function of motions to
reopen, the BIA must draw all reasonable inferences in favor of the
alien unless the evidence presented is 'inherently unbelievable.'
Hernandez-Ortiz [v. INS], 777 F.2d [509,] 514 [CA9
1985]."
"
* * * *"
"While the visit from the Ghanian official could be viewed as
benign, it could also be viewed, as Dr. Abudu suggests, as
threatening. Viewing the inferences in favor of the petitioner as
we must, we conclude that the affidavits made out a
prima
facie case of well-founded fear of persecution."
Id. at 1101-1102 (citations omitted).
Although the BIA had denied respondent's motion to reopen
both on the ground that he had failed to make out a
prima facie case for asylum
and on the ground
that he had failed to explain reasonably his decision not to
request asylum in the first instance, and although the Government
had contended in the Court of Appeals that
"petitioner
neither offered a reasonable explanation
for the belatedness of his application for asylum and withholding
of deportation
nor made a
prima facie showing of
entitlement to such relief,"
Brief for Respondent in Nos. 84-7686 and 86-7075 (CA9), p. 16
(emphasis added), the Court of Appeals did not discuss, as a
separate matter, the "failure to explain" ground in the BIA's
decision. The Court of Appeals' statement that "the
Page 485 U. S. 102
sole issue [in this case] is whether petitioner presented a
prima facie case for reopening," 802 F.2d at 1100, reveals
that the court seems to have blended the two grounds into one.
[
Footnote 6]
The petition for certiorari described this case as involving
"the extent to which a reviewing court is required to defer to the
BIA's ruling on a motion to reopen deportation proceedings." Pet.
for Cert. 8. Like the Court of Appeals' opinion, the questions
presented, though, did not clearly separate the two grounds upon
which the BIA had denied respondent's motion to reopen, [
Footnote 7] and respondent reported to
us, incorrectly,
Page 485 U. S. 103
that
"the sole question before the Ninth Circuit was whether the
Respondent had established a
prima facie case of a
well-founded fear of persecution."
Brief in Opposition 20. Petitioner's reply memorandum, though,
eliminated any possible doubts about the issue it was asking us to
resolve:
"[T]he important question for present purposes [is] whether the
BIA correctly found that respondent had not offered significant new
evidence and had not adequately explained his previous failure to
seek asylum or withholding of deportation (
see 8 CFR 3.2,
208.11)."
Reply Memorandum for Petitioner 2, n. 2. [
Footnote 8]
Page 485 U. S. 104
Thus, we granted certiorari, 480 U.S. 930 (1987), not to decide
the substantive issues of what constitutes a
prima facie
case for establishing eligibility for asylum on the basis of a
well-founded fear of persecution, or of what standard of review
applies, either initially or on motion to reopen, when the BIA
rests its grant or denial of relief squarely on
prima
facie case grounds, [
Footnote
9] but rather to determine the standard a Court of Appeals must
apply when reviewing the BIA's conclusion that an alien has not
reasonably explained his failure to assert his asylum claim at the
outset.
II
There are at least three independent grounds on which the BIA
may deny a motion to reopen. First, it may hold that the movant has
not established a
prima facie case for the underlying
substantive relief sought. The standard of review of such a denial
is not before us today, as we have explained. Second, the BIA may
hold that the movant has not introduced previously unavailable,
material evidence, 8 CFR § 3.2
Page 485 U. S. 105
(1987), or, in an asylum application case, that the movant has
not reasonably explained his failure to apply for asylum initially,
8 CFR § 208.11 (1987). (The issues under the two regulations may,
of course, both involve the incremental significance of whatever
allegedly new evidence is introduced by the movant.) We decide
today that the appropriate standard of review of such denials is
abuse of discretion. Third, in cases in which the ultimate grant of
relief is discretionary (asylum, suspension of deportation, and
adjustment of status, but not withholding of deportation), the BIA
may leap ahead, as it were, over the two threshold concerns
(
prima facie case and new evidence/reasonable
explanation), and simply determine that, even if they were met, the
movant would not be entitled to the discretionary grant of relief.
We have consistently held that denials on this third ground are
subject to an abuse-of-discretion standard.
INS v.
Rios-Pineda, 471 U. S. 444
(1985) (suspension of deportation);
INS v. Bagamasbad,
429 U. S. 24 (1976)
(adjustment of status).
We have discussed 8 CFR § 3.2 (1987), which is one of the two
regulations before us today, in dicta:
"[Section 3.2] is framed negatively; it directs the Board not to
reopen unless certain showings are made. It does not affirmatively
require the Board to reopen the proceedings under any particular
condition. Thus, the regulations may be construed to provide the
Board with discretion in determining under what circumstances
proceedings should be reopened."
INS v. Jong Ha Wang, 450 U. S. 139,
450 U. S. 144,
n. 5 (1981). This footnote, and our subsequent citations of it,
INS v. Rios-Pineda, supra, at
471 U. S. 449;
INS v. Phinpathya, 464 U. S. 183,
464 U. S. 188,
n. 6 (1984), [
Footnote 10]
stand for the proposition that the BIA
Page 485 U. S. 106
has discretion to deny a motion to reopen even if the alien has
made out a
prima facie case for relief; that is, our prior
glosses on § 3.2 have served as support for an abuse-of-discretion
standard of review for the third type of denial, where the BIA
simply refuses to grant relief that is itself discretionary in
nature, even if the alien has surmounted the requisite thresholds
of
prima facie case and new evidence/reasonable
explanation.
But even before reaching the ultimate decision on an alien's
application for discretionary relief from deportation, or before
reaching the point at which mandatory relief is called for in a
withholding of deportation case, the BIA's discretion may be called
into play regarding the specific, evidentiary requirements of §§
3.2 and 208.11. That is, in a given case, the BIA may determine,
either as a sufficient ground for denying relief or as a necessary
step toward granting relief, whether
Page 485 U. S. 107
the alien has produced previously unavailable, material evidence
(§ 3.2), and, in asylum cases, whether the alien has reasonably
explained his or her failure to request asylum initially (§
208.11). We hold today that such decisions are subject to an
abuse-of-discretion standard of review.
The reasons why motions to reopen are disfavored in deportation
proceedings are comparable to those that apply to petitions for
rehearing, [
Footnote 11] and
to motions for new trials on the basis of newly discovered
evidence. [
Footnote 12]
There is a strong public interest in bringing litigation to a close
as promptly as is consistent with the interest in giving the
adversaries a fair opportunity to develop and present their
respective cases. The relevance of this interest to deportation
proceedings was pointedly explained in an opinion that we recently
quoted with approval:
Page 485 U. S. 108
"'If INS discretion is to mean anything, it must be that the INS
has some latitude in deciding when to reopen a case. The INS should
have the right to be restrictive. Granting such motions too freely
will permit endless delay of deportation by aliens creative and
fertile enough to continuously produce new and material facts
sufficient to establish a
prima facie case. It will also
waste the time and efforts of immigration judges called upon to
preside at hearings automatically required by the
prima
facie allegations[, a requirement not disputed in this
case].'"
INS v. Jong Ha Wang, 450 U.S. at
450 U. S. 144,
n. 5 (quoting from Judge Wallace's dissenting opinion in
Villena v. INS, 622 F.2d 1352, 1362 (CA9 1980) (en banc)
(CA9 companion case to
Jong Ha Wang)).
As we have detailed above, the Court of Appeals in this case
purported to decide "whether [respondent] presented a
prima
facie case for reopening." 802 F.2d at 1100. In so doing, the
Court of Appeals set out a standard for BIA motions to reopen
deportation proceedings,
see supra, at
485 U. S.
100-101, that appears to have conflated the quite
separate issues whether the alien has presented a
prima
facie case for asylum with whether the alien has reasonably
explained his failure to apply for asylum initially and has indeed
offered previously unavailable, material evidence. [
Footnote 13] To the extent that
Page 485 U. S. 109
the reasoning of the Court of Appeals addresses the issue of
reopening, rather than the issue of
prima facie case for
asylum, [
Footnote 14] it is
not supported by our cases, and has been consistently rejected by
other Circuits and by other panels in the Ninth Circuit. [
Footnote 15] We have never suggested
that all ambiguities
Page 485 U. S. 110
in the factual averments must be resolved in the movant's favor,
and we have never analogized such a motion to a motion for summary
judgment. The appropriate analogy is a motion for a new trial in a
criminal case on the basis of newly discovered evidence, as to
which courts have uniformly held that the moving party bears a
heavy burden.
See, e.g., Taylor v. Illinois, 484 U.
S. 400,
484 U. S. 414,
n. 18 (1988) (citing cases). Moreover, this is the tenor of the
Attorney General's regulations, which plainly disfavor motions to
reopen.
See n 2,
supra. In sum, although all adjudications by
administrative agencies are to some degree judicial and to some
degree political [
Footnote
16] -- and therefore an abuse-of-discretion standard will often
apply to agency adjudications not governed by specific statutory
commands -- INS officials must exercise especially sensitive
political functions that implicate questions of foreign relations,
[
Footnote 17] and therefore
the reasons for giving deference to agency decisions on petitions
for reopening or reconsideration in other administrative contexts
apply with even greater force in the INS context.
III
We have no doubt that, if respondent had made a timely
application for asylum supported by the factual allegations and
exhibits set forth in his motion to reopen, the Immigration Judge
would have been required to grant him an evidentiary
Page 485 U. S. 111
hearing.
See 8 CFR §§ 208.6 (1987) (requiring
appearance before immigration officer for asylum application) and
208.10(c) (permitting presentation of evidence in deportation
proceedings). We are equally convinced, however, that an alien who
has already been found deportable has a much heavier burden when he
first advances his request for asylum in a motion to reopen. In
passing on the sufficiency of such a motion, the BIA is entitled to
attach significance to its untimeliness, both for the purpose of
evaluating the probability that the movant can prove his
allegations and for the purpose of determining whether the movant
has complied with the regulation requiring a reasonable explanation
for the failure to request asylum during the deportation
proceeding.
In this case, we have no hesitation in concluding that the BIA
did not abuse its discretion when it held that respondent had not
reasonably explained his failure to apply for asylum prior to the
completion of the initial deportation proceeding. The surprise
visit in 1984 was admittedly an event with uncertain meaning, but
it was neither arbitrary nor unreasonable for the BIA to regard it
as not providing any significant additional support for a claim
that respondent had not previously considered strong enough to
prompt him to assert that he had a well-founded fear of
persecution.
The portion of the Court of Appeals' judgment that reversed the
BIA order denying the motion to reopen is reversed.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of
this case.
[
Footnote 1]
Respondent had declined to apply for asylum, but had argued
instead that his marriage to a United States citizen made him
eligible for an adjustment of status under 8 U.S.C. § 1255(a). The
Immigration Judge denied the adjustment-of-status application, App.
to Pet. for Cert. 28a, because respondent's drug conviction
constituted a nonwaivable ground of excludability, 8 U.S.C. §
1182(a)(23) (1982 ed., Supp. IV), and the BIA affirmed this
determination, App. to Pet. for Cert. 24a.
[
Footnote 2]
Title 8 CFR § 208.11 (1987) provides in part:
"[A motion to reopen to request asylum] must reasonably explain
the failure to request asylum prior to the completion of the
exclusion or deportation proceeding. If the alien fails to do so,
the asylum claim shall be considered frivolous, absent any evidence
to the contrary."
Title 8 CFR § 3.2 (1987) provides in part:
"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; nor shall any motion
to reopen for the purpose of affording the alien an opportunity to
apply for any form of discretionary relief be granted . . . unless
the relief is sought on the basis of circumstances which have
arisen subsequent to the hearing."
[
Footnote 3]
See INS v. Stevic, 467 U. S. 407
(1984) (mandatory withholding of deportation under § 243(h) only if
alien can establish that his "life or freedom would be threatened"
on account of race, religion, political opinion, etc.). Although
respondent moved for reopening to apply for both asylum and
withholding of deportation, Motion to Reopen to Permit Respondent
to Apply for Asylum and Request Withholding of Deportation in No.
86-7075 (CA9), p. 1 (pp. 14-19 of Pleadings of the Record), the
focus throughout the proceedings has been on the asylum
application, and our discussion will maintain the same focus. This
focus should not obscure the fact that our holding today applies to
BIA reopening decisions regarding both asylum and withholding of
deportation requests. First, the standard for granting reopening
under 8 CFR § 3.2 (1987) is the same for both asylum and
withholding of deportation requests; accordingly, the BIA's
determination regarding whether "evidence sought to be offered [on
reopening] is material and was not available and could not have
been discovered or presented at the former hearing,"
ibid., is subject to an abuse-of-discretion standard of
review regardless of the underlying substantive claim asserted by
the alien. Further, since all asylum requests
"made after the institution of exclusion or deportation
proceedings . . . shall also be considered as requests for
withholding exclusion or deportation pursuant to section 243(h) of
the Act,"
8 CFR § 208.3(b) (1987); since, normally, "the relevant evidence
will be identical on both claims," 802 F.2d 1096, 1102 (CA9 1986)
(case below),
see Matter of Mogharrabi, Interim Dec. No.
3028, p. 12 (BIA June 12, 1987) ("[T]he core of evidence and
testimony presented in support of the asylum and withholding
applications will in almost every case be virtually the same"); and
since it is easier to prove well-founded fear of persecution than
clear probability of persecution, the BIA's 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 a withholding of deportation request. In sum,
our holding today is that a court of appeals should review the BIA
only for abuse of discretion when the Board denies reopening on §
3.2 or § 208.11 grounds, regardless of the underlying basis of the
alien's request.
See n 10,
infra.
[
Footnote 4]
See INS v. Cardoza-Fonseca, 480 U.
S. 421 (1987) ("well-founded fear of persecution"
contains subjective and objective components, but does not require
proof that persecution is more likely than not to occur if alien is
deported).
[
Footnote 5]
Respondent did not cross-petition for a writ of certiorari from
this holding.
[
Footnote 6]
Early in its opinion, the Court of Appeals did state, correctly,
that the BIA had denied reopening both because of respondent's
failure to explain the belated asylum application and because of
his failure to make out a
prima facie showing for asylum
relief. 802 F.2d at 1099. The Court of Appeals later commented:
"The Board incorrectly found that all the considerations upon
which Dr. Abudu relied in making his asylum and prohibition against
deportation claims were in existence at the time he made the
determination not to apply for such relief."
Id. at 1102. This statement was erroneous. The Board's
actual finding was:
"We are satisfied from a careful review of the record that the
respondent has not reasonably explained his failure to file his
application at the hearing. 8 CFR § 208.11;
Matter of
Escobar, 18 I&N Dec. 412 (BIA 1979). He was aware at the
time of the hearing of the problems which his brother and other
associates were allegedly facing, yet apparently those
considerations did not then prompt him to seek asylum. Now, in
seeking reopening, he relies heavily on those same considerations.
Given that so much of the evidence upon which the respondent now
bases his persecution claim was available at the time of the
hearing, we are not persuaded that the visit by a member of the
present government was by itself so alarming that it explains the
respondent's failure to apply for asylum at the hearing."
App. to Pet. for Cert. 17a. It may be that the Court of Appeals'
confusion regarding the BIA's holding led to its addressing the two
separate grounds on which the BIA had relied as if they were
one.
[
Footnote 7]
"QUESTIONS PRESENTED"
"1. Whether a decision by the Board of Immigration Appeals (BIA)
denying an alien's motion to reopen deportation proceedings on the
ground that the alien did not make a
prima facie showing
of entitlement to relief must be affirmed if it is plausible and
not arbitrary."
"2. Whether the BIA, in ruling on an alien's motion to reopen
deportation proceedings, is required to draw all reasonable
inferences in favor of the alien."
Pet. for Cert. (1).
[
Footnote 8]
Thus, this case comes to us in a different posture than did
INS v. Stevic, 467 U. S. 407
(1984). There, the BIA had issued an opinion denying reopening to
the alien movant on alternative grounds similar to those relied
upon by the BIA in today's case. That is, the BIA in
Stevic had held (1) that Stevic had failed to show that
the new evidence was unavailable at the initial deportation
hearing, and thus could not overcome the threshold of 8 CFR § 3.2
(1987), and (2) that Stevic had "failed to submit
prima
facie evidence" of the substantive ground on which he sought
relief (that his freedom would be threatened upon return to
Yugoslavia on account of his political opinion).
INS v. Stevic,
supra, at
467 U. S. 411,
and n. 3. The Court of Appeals in
Stevic held that a
change in the law between Stevic's initial deportation hearing and
his motion to reopen had changed the legal standard for the
underlying substantive claim, and thus that Stevic was entitled to
a hearing under the new, more lenient standard. We reversed,
holding that the standard for gaining mandatory withholding of
deportation under § 243(h) had not been altered by the Refugee Act
of 1980.
See n 3,
supra. Thus, although the BIA had relied upon alternative
grounds in
Stevic similar to those it relied upon in
respondent's case -- and accordingly one could suggest that we
should decide the underlying substantive issue here just as we did
in
Stevic -- the crucial difference between the two cases
is that, in
Stevic, the issue whether sufficient new
evidence was available to require reopening depended upon a
determination whether the underlying substantive standard for
withholding of deportation had been altered, while in today's case
the issue whether respondent reasonably explained his failure to
apply for asylum initially does not so depend upon how one states
the underlying substantive standard, but rather may be resolved as
an independent matter. Unlike the petition for writ of certiorari
and reply memorandum in today's case, which asked us to resolve an
issue regarding agency discretion on reopening, and not the
underlying substantive standard for determining eligibility for
asylum, the petition for writ of certiorari in
Stevic, as
well as the brief in opposition and reply memorandum, discussed
only the nature of the underlying substantive standard.
[
Footnote 9]
Just last Term, we stated that
"[t]here is obviously some ambiguity in a term like
'well-founded fear' which can only be given concrete meaning
through a process of case-by-case adjudication."
INS v. Cardoza-Fonseca, 480 U.S. at
480 U. S. 448.
The BIA has begun this post-
Cardoza-Fonseca process of
giving meaning to "well-founded fear of persecution."
Matter of
Mogharrabi, Interim Dec. No. 3028, at 9 (after canvassing
various approaches taken by Courts of Appeals, adopts general
standard set forth by Fifth Circuit in
Guevara Flores v.
INS, 786 F.2d 1242 (1986),
cert. denied, 480 U.S. 930
(1987),
viz., "that an applicant for asylum has
established a well-founded fear if he shows that a reasonable
person in his circumstances would fear persecution"). We express no
opinion on the BIA's recent formulation.
[
Footnote 10]
Respondent attempts to distinguish
Jong Ha Wang,
Phinpathya, and
Rios-Pineda by arguing that the key
standard for determining eligibility for suspension of deportation
(whether the deportation would result in extreme hardship to the
alien) is itself established at the discretion of the BIA,
see 8 U.S.C. §§ 1254(a)(1) and 1103; 8 CFR § 2.1 (1987);
INS v. Jong Ha Wang, 450 U. S. 139,
450 U. S.
144-146 (1981), whereas the standard for determining
eligibility for asylum is determined by statute,
see 8
U.S.C. §§ 1158 and 1101(a)(42)(A). Thus, respondent continues,
Jong Ha Wang and its successor cases are of limited value,
because they all arose in the suspension of deportation setting,
where the BIA's discretion to determine eligibility is greater than
it is in the asylum setting. Without commenting on the validity of
respondent's conclusion regarding the varying degrees of discretion
the BIA may exercise in suspension of deportation and asylum
settings, we note that, even if respondent's point were correct it
would be irrelevant for purposes of this case. The BIA's regulation
that provides for reopening of deportation proceedings, 8 CFR § 3.2
(1987), applies to all motions to reopen, regardless of the
underlying substantive basis of the alien's claim. Further, the
separate regulation relied on by the BIA in denying respondent's
motion to reopen, 8 CFR § 208.11 (1987), addresses not the
underlying substantive standard for an asylum claim, but rather the
additional threshold an alien must overcome on a motion to reopen
to make such a claim. As we are simply defining the standard a
court of appeals must apply in reviewing the BIA's denial of
reopening on §§ 3.2 and 208.11 grounds -- and not the standard for
establishing eligibility for asylum, whether initially or on motion
to reopen -- whatever distinction may exist regarding the BIA's
discretion in determining eligibility for suspension of deportation
and for asylum does not affect the question we address today.
See n. 3,
supra.
[
Footnote 11]
See, e.g., Bowman Transportation, Inc. v. Arkansas-Best
Freight System, Inc., 419 U. S. 281,
419 U. S.
294-296 (1974) (reopening of Interstate Commerce
Commission licensing hearing only "in the most extraordinary
circumstances");
Cities of Campbell v. FERC, 248
U.S.App.D.C. 267, 278, 770 F.2d 1180, 1191 (1985) (reopening of
Federal Energy Regulatory Commission evidentiary hearing "a matter
of agency discretion, . . . reserved for extraordinary
circumstances");
Duval Corp. v. Donovan, 650 F.2d 1051,
1054 (CA9 1981) (reconsideration of Federal Mine Safety and Health
Review Commission order "addressed to that body's discretion" and
"[d]enial of such a petition should be overturned only upon a
showing of the clearest abuse of discretion");
Nance v.
EPA, 645 F.2d 701, 717 (CA9) ("The administrative process
cannot provide for the constant reopening of the record to consider
new facts, . . . and it is for the agency, not this court to
determine when such reopening is appropriate, unless the failure to
reconsider can be characterized an abuse of discretion"),
cert.
denied sub nom. Crow Tribe of Indians, Montana v. EPA, 454
U.S. 1081 (1981).
[
Footnote 12]
See, e.g., United States v. Tucker, 836 F.2d 334, 336
(CA7 1988) (new trial only if newly discovered evidence "would
probably lead to an acquittal in the event of a trial");
United
States v. Vergara, 714 F.2d 21, 22 (CA5 1983) ("[S]tandard for
review of the denial of a motion for new trial on [grounds of newly
discovered evidence] rests in the sound discretion of the trial
court"); 3 C. Wright, Federal Practice and Procedure § 557, p. 315
(1982) (motions for new trial on grounds of newly discovered
evidence "are not favored by the courts, and are viewed with great
caution").
[
Footnote 13]
See, e.g., Aviles-Torres v. INS, 790 F.2d 1433, 1436
(CA9 1986) (
prima facie showing of entitlement to relief
and explanation of failure to present evidence earlier are separate
elements of reopening motion);
Bahranmia v. INS, 782 F.2d
1243, 1245 (CA5) (requirements of §§ 3.2 and 208.11 "additional . .
. to the establishment of a
prima facie case of
eligibility"),
cert. denied, 479 U.S. 930 (1986);
Ananeh-Firempong v. INS, 766 F.2d 621, 627 (CA1 1985) (§
3.2 requirement separate from
prima facie case
requirement);
Duran v. INS, 756 F.2d 1338, 1340, n. 1 (CA9
1985) (two requirements for reopening to request asylum:
prima
facie case of eligibility for relief and reasonable
explanation for failure to apply initially, under § 208.11);
Samimi v. INS, 714 F.2d 992, 994 (CA9 1983) ("To justify
reopening on the basis of an asylum claim, a petitioner must make a
prima facie showing that he is eligible for the relief
sought, . . . and explain his failure to raise the asylum claim in
the previous proceeding. 8 CFR §§ 3.2, 208.11 (1983). Somewhat
related to this second requirement is the requirement that the
petitioner offer new, material evidence that could not have been
discovered and presented at the former hearing. 8 CFR §§ 3.2,
103.5, 242.22 (1983)").
[
Footnote 14]
As we have stated throughout the opinion, to the extent that the
Court of Appeals' reasoning addresses the issue of
prima
facie case for asylum, we offer no view of its validity, save
our observation,
infra, at
485 U. S. 111,
that the untimeliness of an asylum claim may be relevant to the
BIA's decision as to the
prima facie case issue on
reopening.
[
Footnote 15]
See, e.g., Torres-Hernandez v. INS, 812 F.2d 1262, 1264
(CA9 1987) (abuse-of-discretion standard applied to denial of
motion to reopen on § 3.2 grounds);
Sakhavat v. INS, 796
F.2d 1201, 1203 (CA9 1986) (abuse-of-discretion standard applied to
denial of reopening on § 208.11 grounds);
Conti v. INS,
780 F.2d 698, 701 (CA7 1985) (abuse-of-discretion standard applied
to denial of reopening on § 3.2 grounds);
Ananeh-Firempong v.
INS, supra, at 626 (abuse-of-discretion standard applied to
denial of motion to reopen in which alien complied with § 3.2 by
alleging new facts);
Riasati v. INS, 738 F.2d 1115, 1119
(CA10 1984) (abuse-of-discretion standard applied to denial of
motion to reopen on § 3.2 materiality grounds);
Motamedi v.
INS, 713 F.2d 575, 576 (CA10 1983) (BIA abused its discretion
in denying motion to reopen when alien had complied with § 208.11
by reasonably explaining his failure to request asylum initially);
LeBlanc v. INS, 715 F.2d 685, 689 (CA1 1983) (suggesting
that our holding in
INS v. Jong Ha Wang, 450 U.
S. 139 (1981), permits the BIA, pursuant to § 3.2, to
"decide that it will not reopen in cases such as the one at bar,
where the movant may have made out a
prima facie case, but
the Board is persuaded that for other assertedly legitimate reasons
it would not, as a matter of discretion, allow suspension");
Samimi v. INS, supra, at 994-995 (abuse-of-discretion
standard applied to denial of reopening on §§ 3.2 and 208.11
grounds);
Chae Kim Ro v. INS, 670 F.2d 114 (CA9 1982)
(abuse-of-discretion standard applied to denial of reopening on §
3.2 grounds);
Au Yi Lau v. INS, 181 U.S.App.D.C. 99, 107,
555 F.2d 1036, 1044 (1977) ("At most, [§ 3.2] dictates that the
Board consider any new circumstances advanced in support of a
motion to reopen, and that the Board not abuse its discretion in
determining whether the circumstances are sufficient to justify
granting of the motion");
see also, e.g., Brown v. INS,
249 U.S.App.D.C. 333, 337, 775 F.2d 383, 387 (1985)
(abuse-of-discretion standard applied to denial of motion to reopen
on § 3.8 grounds due to lack of evidentiary support).
[
Footnote 16]
See, e.g., Northern Pipeline Construction Co. v. Marathon
Pipe Line Co., 458 U. S. 50,
458 U. S. 67-70
(1982) (plurality opinion) (Constitution authorizes Congress to
delegate adjudication of "public rights" to non-Article III
judges);
see also id. at
458 U. S. 91
(REHNQUIST, J., concurring in judgment) ("public rights" doctrine
might sustain other powers granted non-Article III judges under the
Bankruptcy Act of 1978, but not the adjudication of appellant's
contract suit).
[
Footnote 17]
Cf., e.g., Hampton v. Mow Sun Wong, 426 U. S.
88,
426 U. S.
101-102, n. 21 (1976) ("[T]he power over aliens is of a
political character, and therefore subject only to narrow judicial
review").