LOCATION: New York City Council
DOCKET NO.: 86-1128
DECIDED BY: Rehnquist Court (1988-1990)
CITATION: 485 US 94 (1988)
ARGUED: Dec 01, 1987
DECIDED: Mar 01, 1988
Facts of the case
Media for Immigration and Naturalization Service v. Abudu
Audio Transcription for Oral Argument - December 01, 1987 in Immigration and Naturalization Service v. Abudu
William H. Rehnquist:
We will hear argument first this morning in No. 86-1128, Immigration and Naturalization Service versus Assisi Abudu.
Mr. Klonoff, you may proceed whenever you are ready.
Robert H. Klonoff:
Mr. Chief Justice, and may it please the Court, this case raises the issue of when a reviewing court can compel the immigration authorities to reopen a deportation proceeding for an evidentiary hearing after the alien has already been given a hearing and after an order of deportation has been entered.
The context in which the issue arises is as follows.
Respondent has been here illegally for almost 12 years, since 1976.
His deportation hearing was held in 1982, and involved five appearances before the immigration judge between 1981 and 1982.
Respondent, who was represented by competent counsel at the hearing, declined to seek asylum despite specific questioning by the immigration judge on the issue.
In 1985, respondent filed a motion to reopen to apply for asylum and withholding of deportation based on an event that occurred in 1984, namely, a visit to respondent by a Ghanian official who was also respondent's personal friend, and I will have more to say about this event later in the argument.
The issue of the extent of deference in the context of a motion to reopen has been addressed by this Court three times in the immigration context, in Jong Ha Wang, in Rios-Pineda, and in Phinpathya.
These cases emphasize the great deference that must be given to the Board of Immigration appeals in its decision not to reopen.
The Court has emphasized the importance of finality and has pointed out that in this context reopening is not required by statute but is purely a product of regulation, and in fact the regulation itself does not mandate reopening in any particular circumstance, but rather, as the Court noted, is framed in the negative.
William H. Rehnquist:
Mr. Klonoff, then reopening is not a procedure provided for by statute?
Robert H. Klonoff:
It is purely a matter of regulation.
And this Court has made that clear in Jong Ha Wang in its discussion.
Notwithstanding this Court's decision, the Ninth Circuit held, contrary to the BIA, that respondent had alleged a prima facie case of eligibility for asylum, and that an evidentiary hearing was therefore required.
As a result of the Ninth Circuit's holding, the entire process will begin anew, including possible appeals, even though the deportation hearing was held more than five years ago, and even though the only fact that was offered by respondent in support of his motion to reopen is one that even the Ninth Circuit itself said could be viewed as ambiguous or benign.
Now, if I could just elaborate briefly on some of the facts that are critical to this case, as I said, respondent entered the United States originally in 1965, approximately ten years ago.
He left briefly during the summer of 1973, and the returned on a visa that was good until 1976.
In 1981, while respondent was here illegally, he pleaded guilty to three narcotics offenses, and based on his plea of guilty to those offenses, the Immigration and Naturalization Service instituted deportation proceedings and those proceedings in fact resulted in hearings that occurred between November and July, November, 1981, and July, 1982.
There were five separate appearances.
The continuances on each occasion being at respondent's request.
One of the continuances in the case, from November 10th, 1981, to January 11th, 1982, appears to have been requested in part so that respondent could prepare an application for asylum and withholding of deportation, and in fact respondent's counsel specifically represented to the immigration judge that such an application would be filed.
Respondent ultimately chose not to seek asylum or withholding of deportation, and he was consequently found deportable in July, 1982, and that decision was affirmed by the BIA in 1984.
In February, 1985, while that appeal was pending in the Ninth Circuit, respondent filed a motion to reopen with the Board of Immigration Appeals.
As respondent concedes, the only new fact that relates to the respondent other than just the general events in Ghana was this visit from the Ghanian official, and it is significant to note that although this visit occurred in the spring of 1984, respondent waited almost an entire year until February, 1985, before seeking reopening.
There is no dispute that this individual who made the visit is someone who respondent had known for many years.
The additional fact which--
Sandra Day O'Connor:
Mr. Klonoff, is that new evidence not available before within them engaging of the regulation, do you suppose?