Immigration and Naturalization Service v. Doherty – Oral Argument – October 16, 1991

Media for Immigration and Naturalization Service v. Doherty

Audio Transcription for Opinion Announcement – January 15, 1992 in Immigration and Naturalization Service v. Doherty

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William H. Rehnquist:

We’ll hear argument now in Case No. 90-925, The Immigration and Nationalization Service v. Joseph Patrick Doherty.

You may proceed, Ms. Mahoney.

Maureen E. Mahoney:

Thank you, Mr. Chief Justice, and may it please the Court:

In this case, the Court of Appeals for the Second Circuit found that the Attorney General of the United States abused his discretion in denying Mr. Doherty’s motion to reopen his deportation hearing.

The court of appeals accordingly remanded the case for an evidentiary hearing on Mr. Doherty’s claim that he should be granted asylum in the United States and that he should be deported to some country other than the United Kingdom.

We request this Court to reverse the decision of the Second Circuit on two independent grounds that I would like outline briefly in order to clarify what the issues are for this Court to decide today.

First, we ask this Court to hold that the Attorney General had discretion to deny reopening because Mr. Doherty did not establish that he had good cause for failing to raise his claims for asylum and withholding of deportation at his deportation hearing in September of 1986.

The Attorney General determined that he had a full and fair opportunity to raise those claims at that hearing and that he deliberately abandoned the claims as part of a tactical strategy that ultimately failed.

If this Court finds that the Attorney General properly denied reopening on this ground, and that this was not an arbitrary or unseasoned abuse of discretion, then it need not reach any of the other issues in this case, because that ground would in and of itself would be dispositive under this Court’s decision in INS v. Abudu.

As a second and independent ground of reversal, we ask this Court to find that the Attorney General properly exercised his discretion in determining that Mr. Doherty’s claims for withholding of deportation and asylum were just simply not sufficiently meritorious to warrant the extraordinary remedy of reopening.

I’d like to turn first to the issue of whether or not Mr. Doherty established good cause for failure to file his claims or pursue his claims in September 1986 at his deportation hearing, since we submit that this Court’s decision in INS v. Abudu is in fact controlling on this ground.

On three prior occasions in the last 10 years, this Court has looked at the question of what the Attorney General or the Board of Immigration Appeals’ discretion is to deny reopening for failure to show good cause to raise the claim at the initial deportation hearing.

In all three occasions in this Court’s decision in Rios-Pineda, in the Wang decision, and most recently in Abudu, this Court found that the denial of reopening on these grounds must be sustained unless the decision is arbitrary and unreasoned.

We submit that there is simply no way that the Attorney General’s determination on this issue in this case was arbitrary or unreasoned.

This Court’s decision in Abudu illustrates that there are essentially two interrelated requirements for establishing good cause to file an application for withholding of deportation or asylum after the deportation hearing has been closed.

And these requirements are, first, under the regulations, Mr. Doherty is required to reasonably explain, to provide a legally sufficient explanation of why he did not raise the claims or pursue the claims at the initial deportation hearing.

And second, he must also show that his claims for withholding of deportation and asylum are based upon evidence or circumstance that arose subsequent to the hearing.

I’d like to turn first to the issue of whether or not Mr. Doherty has ever provided a reasonable explanation of why he didn’t pursue these claims in September of 1986.

The Attorney General found that the reason that he didn’t pursue the claims in September of 1986 was that he had an opportunity to do so, but he was… it was part of an effort on his part to designate Ireland as the country of deportation, to withdraw his claims for asylum and withholding of deportation, and to try to expedite his deportation so that he could reach Ireland before the supplemental extradition treaty took effect.

Sandra Day O’Connor:

Was it customary that people faced with deportation could indicate the country they’d like to go to, and if the country were willing to accept them that normally that’s where the person would be sent?

Was that the standard practice?

Maureen E. Mahoney:

Your Honor, under the statute, under 243(a), an alien has the opportunity to designate the country that he wants to be deported to.

But the statute specifically provides that the Attorney General may reject that designation if, in his view, it would be prejudicial to the interests of the United States.

And the standard practice before the immigration judges that’s been in effect for many years, in fact probably 50 years, is that when a national of a country designates a country other than his country of nationality, the immigration judge gives him an opportunity to submit a claim for withholding of deportation or asylum to the country of nationality.

The whole idea here is that it is critical to the process that all of the defenses to deportation be asserted at the time of the deportation hearing in order to avoid piecemeal appeals.

Sandra Day O’Connor:

Was it at all a surprise that the Attorney General designated the United Kingdom instead of Ireland as had been designated?

Maureen E. Mahoney:

Your Honor, I do not believe it was a surprise.

The INS took the position at the hearing in September of ’86 that it was the position of the United States that Mr. Doherty should not be deported to Ireland, that it would be prejudicial to the United States’ interests, that this was an issue of serious concern at the highest levels, and when that argument was rejected by the immigration judge, the INS indicated that it would appeal that decision because it was sufficiently concerned that deportation to Ireland would be prejudicial.

So there really can be no question that Mr. Doherty understood in September of 1986 that he was at risk.

And similarly, Your Honor, there was no reason why he couldn’t plead in the alternative.

Maureen E. Mahoney:

In this Court’s decision in Abudu, Dr. Abudu was in precisely the same kind of circumstance.

He designated England as the country that he wanted to be deported to, but he was a national of Ghana.

So the immigration judge in that case, just like the immigration judge in this case, gave him the opportunity to apply for withholding of deportation to Ghana and for asylum, an opportunity that Dr. Abudu did not avail himself of.

And thereafter when he sought to reopen the proceedings in order to do that, this Court found that he was barred, because you are permitted to plead in the alternative.

There’s simply no reason… the issue in September of 1986 that was presented–

John Paul Stevens:

Of course in that case he didn’t have the reason that’s advanced here.

Maureen E. Mahoney:

–Your Honor, he did have the reason that’s advanced here.

John Paul Stevens:

No, his reason was some dentist had called on him or something like that, and that was the only new development.

Maureen E. Mahoney:

Oh, in Abudu?

John Paul Stevens:

In Abudu, yeah.

Maureen E. Mahoney:

Oh, in that it was an official in the foreign government who had come to his house–

John Paul Stevens:

Oh, and said they needed a doctor in Ghana.

Maureen E. Mahoney:

–They said they needed a doctor.

And this Court–

John Paul Stevens:

And we said that wasn’t enough to justify it.

Maureen E. Mahoney:

–Well, this Court found that it may well have been new in material evidence, but that he actually had a sufficient basis to assert his claim at the time of the hearing, and therefore, it couldn’t constitute a reasonable explanation for having failed to raise the claim at the time of the initial hearing.

Similarly in this case, Mr. Doherty has never contended that he did not have adequate grounds to claim that he fear persecution in the United Kingdom.

Essentially–

John Paul Stevens:

But even if he had adequate grounds in the first place, if there was a new development that was sufficiently significant, Abudu wouldn’t have said he couldn’t have raised a new ground.

Maureen E. Mahoney:

–The board decision in Abudu did say that, Your Honor.

The–

John Paul Stevens:

But we didn’t say that.

Maureen E. Mahoney:

–Well, this Court in Abudu didn’t–

John Paul Stevens:

Because I remember the case.

Maureen E. Mahoney:

–This Court in Abudu didn’t clarify the precise bounds of the discretion that the board would have or that the Attorney General would have, but this Court did assume in Abudu that the new evidence was material, but that–

John Paul Stevens:

But not sufficiently important.

That’s the last part of the opinion, as I remember.

A separate question was whether the new evidence had sufficient significance to justify withholding, even though he’d had sufficient basis originally.

Maureen E. Mahoney:

–That’s correct, Your Honor.

John Paul Stevens:

So in this case, though, there’s a difference in what the new development is.

John Paul Stevens:

And is arguably more significant than the visit from the man saying they needed another doctor in Ghana.

Maureen E. Mahoney:

Your Honor, I believe that it’s less significant.

And the reason I say that is essentially what happened here, the change was that Mr. Doherty lost on appeal.

The issue in September–

John Paul Stevens:

Well, and the law changed and he’s going to go to England in any event now, which he wouldn’t have… which would not have been the fact at the time that you say he had to make his election.

Maureen E. Mahoney:

–Well, Your Honor, at the time that he had to make his election… you’re referring to the change in Irish law?

John Paul Stevens:

Yes.

Maureen E. Mahoney:

Well, first of all, I think that it’s difficult for Mr. Doherty to claim that Irish law changed in a way that was in fact prejudicial to him since he in fact represented to the board in December of 1986 that decisions of the Irish Supreme Court had, quote,

“vitiated the political offense exception, thereby removing any obstacle. “

end quote, to his extradition from Ireland to the United Kingdom.

So I think that the issue of the change in Irish law is really one that is difficult to understand how he could be making.

Moreover–

John Paul Stevens:

Are you saying if he’d, even at the time of the election, if he’d been deported to Ireland at that time, he still would have gone right to England in any event?

Is that what you’re basically saying?

Maureen E. Mahoney:

–Saying that the law of extradition in Ireland at that time is not fundamentally different to what it is now.

John Paul Stevens:

Well, does that mean that the net result of it is that if he’d gone to Ireland he still would have gone right away to England?

Maureen E. Mahoney:

No, Your Honor, that isn’t what we would say.

John Paul Stevens:

Well, then that’s different, isn’t it?

Maureen E. Mahoney:

No, because both before the change in Irish law and after the adoption of the European Convention on Terrorism, there was the possibility that the Irish Government would not extradite him.

In fact, the Attorney General noted in his opinion that there was recently a member of the PIRA who was not extradited to the U.K. under the new extradition act–

John Paul Stevens:

Let me ask you… it’s very difficult to sort out all these things.

But cutting through everything, is it not more probable now that if he goes to Ireland he will immediately go to England than it was at the time he made his election?

Maureen E. Mahoney:

–I don’t believe so, Your Honor.

John Paul Stevens:

You don’t think so.

Maureen E. Mahoney:

Because even the new law has exceptions in it that allows the alien, or excuse me, the person subject to extradition in Ireland to try to establish that he’s being… the reason for the extradition is for persecution reasons.

Byron R. White:

Well, of course the court of appeals didn’t agree with you.

Maureen E. Mahoney:

No, but the court of appeals really–

Byron R. White:

On this issue either.

Maureen E. Mahoney:

–Well, the court of appeals rested more on the question of whether or not the rejection of the designation by the Attorney General provided a reasonable explanation for Mr. Doherty’s failure to pursue his claims for withholding of deportation and asylum at the time of the hearing in 1986.

Maybe the best way to try to put this in perspective is–

Antonin Scalia:

Before you do that, if it is as you say, why would he have had this change of heart?

Is there a change in the attitudes of the Irish Government recently or in the makeup of the Irish Government?

Maureen E. Mahoney:

–Why would he no longer wish to go to Ireland?

Is that the question?

Antonin Scalia:

Yes.

Maureen E. Mahoney:

Your Honor, that question is not answered by the Attorney General or by the courts in this case, but I would note that he filed his motion to reopen the proceedings based upon the change in Irish law less than 1 month after the Attorney General Meese sent him a letter stating that he had accepted the INS appeal from the board’s rejection of the designation letter.

And therefore, he may well have surmised that it was likely that the Attorney General would overturn the board’s decision allowing him to go to Ireland.

Byron R. White:

I thought that… didn’t Attorney General Meese order him to be sent to England?

Maureen E. Mahoney:

Yes, he did, Your Honor, but the motion to reopen based upon the change in Irish law was filed less than a month after the Attorney General, Attorney General Meese notified Mr. Doherty that he had accepted the appeal of the INS from the board’s decision.

Therefore, one inference that we could make is that–

Antonin Scalia:

You think he was rolling the dice, that what he’d like most of all was to stay in this country, not be deported at all.

And he went whole hog for that initially.

Then when it seemed he wasn’t going to get that, he’d say I better have a… I’d better have a fall-back position, and that’s when he said send me to Ireland, even though it was no more attractive later than it was originally.

Maureen E. Mahoney:

–One intermediate step, Your Honor.

I think initially he wanted to stay in the United States.

In the summer of 1986 when the United States Senate adopted the supplemental extradition treaty, he very much wanted to leave the United States as quickly as possible because he was concerned that he would be extradited under that treaty.

So then he designated Ireland.

Then when it… and that designation was accepted, but then when the plan failed and he was not deported to Ireland as quickly as he wanted to be, and it became at least possible that the Attorney General was going to reject that designation, I think he then changed strategy again, and filed the motion to reopen.

John Paul Stevens:

May I ask another question?

I don’t have the dates as well in mind as I should, but I was under the impression that the Attorney General objected vigorously to his being deported to Ireland because he thought it was a matter of important American national policy that he go to England, which assumed… made me think the Attorney General thought there was some difference.

And as I understand your argument now, everybody should have known he’d end up in Ireland… in England right a way, no matter which place he went.

Maureen E. Mahoney:

No, Your Honor, the Attorney General did not find that he would certainly end up in England no matter what.

He simply found that the–

John Paul Stevens:

But that’s my point.

But you’re saying he would have.

That’s what I think you’re telling me today.

Maureen E. Mahoney:

–I’m sorry, Your Honor, I’m not being clear.

I’m saying that there wasn’t a material difference in the extradition law of Ireland either before or after the adoption of the new extradition act.

In other words, that there was a chance that he would not be extradited to the United Kingdom under the old law and also under the new law.

The Attorney General in fact noted that a member of the PIRA was not extradited under the new law, just as sometimes they had not been under the old law.

Maureen E. Mahoney:

I think the key thing here is that Irish law really isn’t germane to the question that was before the immigration judge in September of 1986.

The issue in that proceeding was should Mr. Doherty be deported to the United Kingdom.

And Mr. Doherty had several defenses to that available to him, and consistent with standard pleading and INS practice, he was required to assert all of them in the alternative.

He could claim withholding of deportation, he could claim a right to designate Ireland, he could claim asylum.

And that was the procedure that was followed in Abudu, and it is the standard procedure that has always been followed.

This Court recognized in 1963 in United States v. Foti, that Congress very much wanted to encourage the consolidation of all defenses to deportation in one hearing on the merits.

So we are back to the question, why didn’t Mr. Doherty simply plead in the alternative?

Byron R. White:

Do you have a better reason than just failure to plead for sustaining the Attorney General’s discretion?

Maureen E. Mahoney:

Well, your Honor, it wasn’t just that he failed to plead.

He failed to plead for a tactical reason, a deliberate reason.

He was trying to expedite his deportation.

Byron R. White:

Well, that may be so.

But I just wondered if there was another reason.

Maureen E. Mahoney:

Yes, Your Honor, there are additional reasons.

Byron R. White:

Well, your time is certainly running.

Maureen E. Mahoney:

The… if we look to issue of the merits, we can look first at the issue of asylum.

Now this Court has indicated on a number of occasions that it is appropriate in considering motions to reopen to determine whether or not the alien has a sufficient claim on the merits that the extraordinary remedy of reopening is warranted.

With respect to the asylum claim, the Attorney General determined that reopening would in effect be futile because he… there were three grounds on which he could exercise his discretion to deny asylum.

And the first of those was that the nature and number of criminal acts that Mr. Doherty had committed were such that he would not be entitled to this humanitarian relief under the asylum laws.

I’d like to emphasize here that the language of Section 208 specifically provides that the Attorney General may, in his discretion, grant asylum.

There are no conditions in the statute, whatsoever, limiting the exercise of discretion.

The court of appeals, nevertheless, found that the discretion was substantially circumscribed, and that the Attorney General was not allowed to exercise his discretion in this case to deny reopening without granting an evidentiary hearing.

With respect to the question of whether or not–

John Paul Stevens:

May I ask… again, I should be better advised as to facts than I am, but is one of the grounds by the Attorney General exercised his discretion was because the Attorney General’s believe that he was ineligible for asylum?

Maureen E. Mahoney:

–No, Your Honor, he did not find that he was ineligible for asylum.

He simply found… he assumed that he would be eligible, that he would meet the definition of refugee.

He didn’t make a factual finding, but was willing to assume it for the purposes of resolving the issue.

But he did find that it would be… that in the exercise of his discretion that he would deny asylum for reasons relating to Mr. Doherty’s prior criminal activity, which was established by his own admissions in the transcript of the extradition hearing, which was a part of the record in this case.

And second, he also found that it was appropriate to deny asylum in his discretion because of his political determination that it would be contrary to the foreign policy interests of the United States to give sanctuary to Mr. Doherty.

The United Kingdom and the United States had been engaged in a collaborative effort to try to stem the tide of terrorism throughout the world, and believed that it would simply be incompatible with the United States’ position in that effort to give sanctuary to Mr. Doherty.

Byron R. White:

And it’s your submission that this ground was an independent ground?

Maureen E. Mahoney:

Yes, Your Honor.

Byron R. White:

And that if we said… sustained the exercise of the discretion of what you said before this, we don’t need to get to the foreign policy issue?

Maureen E. Mahoney:

That’s correct, Your Honor.

You could sustain it simply on the basis that there was no cause.

Byron R. White:

On either one of them.

Maureen E. Mahoney:

Or on asylum, you could sustain it on the basis that the fact that Mr. Doherty was… had admitted that he had been convicted for a number of offenses was sufficient to allow the exercise of discretion to deny asylum.

Sandra Day O’Connor:

Or on grounds of waiver.

I thought you had argued that.

Maureen E. Mahoney:

Well, waiver really… I referred to, in this argument, as failure to establish good cause or reasonable explanation for asserting his claims for withholding an asylum at the time of the September 1986 hearing.

It’s really the same argument.

Sandra Day O’Connor:

Well, is it quite the same?

Did he not make an initial affirmative waiver of any desire to have asylum or deportation?

Maureen E. Mahoney:

Yes, he did.

He deliberately and tactically abandoned those claims at his September hearing in order to expedite the proceedings.

Anthony M. Kennedy:

If you lose on that, I take it you still have to address the withholding.

Maureen E. Mahoney:

Yes, Your Honor.

In terms of withholding, the issue is whether or not the Attorney General could also find that there wasn’t a sufficient showing on the merits of this claim either.

And the reason why we certainly believed that it was appropriate for the Attorney General to reach this conclusion is that withholding of deportation requires two showings, two mandatory showings.

One is that you in fact are… there is a probability that you would be persecuted if returned to the… or sent to the country of deportation.

And the second is that the Attorney General does not have serious reasons for believing that the alien has committed serious nonpolitical offenses.

That’s the language of Section 243(h)(c).

And if there are reasons to believe… serious reasons to believe that he committed serious nonpolitical offenses, he simply is not entitled to–

John Paul Stevens:

And is it your position that the Attorney General can make that determination without any kind of a hearing at all?

Maureen E. Mahoney:

–Yes, Your Honor, in this case he can.

And the reason he can is first of all, this comes on a case for reopening.

And the question is whether or not–

John Paul Stevens:

Yes, as I understand your position, he could have denied it outright, even without any hearing at all because even though… you’re not now relying on the breadth of discretion.

You’re relying on the argument he comes within subparagraph (c) because he’s statutorily ineligible for withholding.

Maureen E. Mahoney:

–Statutorily ineligible because of the undisputed facts from… established in the extradition transcript showed that he simply would not be able to satisfy showing–

John Paul Stevens:

Even though the hearing officer in that transcript, the judge, came to the conclusion that the nonpolitical language did not apply.

It’s not the same language, of course, but it’s the same concept.

Maureen E. Mahoney:

–Well, although the judge in that case, Your Honor, acknowledged… said right out that the facts were not really in dispute.

The issue was simply whether or not as a matter of law under the political offense exception for the extradition treaty, he had… whether or not those facts established that it was a political offense.

And that issue, we submit, is different that the legal characterization that the Attorney General was required to make under Section 243(h), where he determined that acts which are directed at the civilian population, even if done for political purposes or as part of an uprising in Ireland, in Northern Ireland, are nevertheless serious nonpolitical offenses.

Harry A. Blackmun:

Counsel, is there, in your view, any limit to the Attorney General’s discretion to deny asylum?

Maureen E. Mahoney:

Your Honor, that limit would be the limits of irrationality, wholly arbitrary–

Harry A. Blackmun:

Did he deny it on the basis of a race, pure and simple?

Maureen E. Mahoney:

–Your Honor, I believe that the Attorney General would find that it would not be appropriate to deny asylum on the basis of race.

In the case of Jean v. Nelson, the Attorney General did take the position under a different section of the immigration law that it would be inappropriate to exercise discretion based upon race.

Harry A. Blackmun:

So you are saying there are some limits somewhere out there.

Maureen E. Mahoney:

Well, Your Honor, I think that it is fair to say that when the Attorney General exercise his discretion under the asylum provision for reasons such as foreign policy or other political reasons, that the decision is essentially unreviewable, much for the same reasons that the Second Circuit in this case found that Attorney General Meese’s decision that it would be prejudicial to the interests of the United States to send Mr. Doherty to Ireland would–

Sandra Day O’Connor:

Would you take that position even if the Attorney General determined that the refugee would be subject to persecution on his return and that that would be wrong, but nevertheless that persecution furthered U.S. interests.

Do you think that’s within the scope of his discretion?

Maureen E. Mahoney:

–Your Honor, I think that the Attorney General could properly find that Mr. Doherty’s interests in sanctuary in the United States were not paramount, even if he was potentially going to be subjected to persecution in the United Kingdom.

And that the national interest in foreign policy and leadership in combatting terrorism did in fact require the… or at least that he found it appropriate to exercise his discretion in that regard.

I would note that in this Court’s decision in Abudu, this Court was willing to assume that Dr. Abudu had made a prima facie case of persecution in Ghana, but nevertheless found that because he hadn’t raised the claim, that it was sufficient to go ahead and send him back to Ghana despite that prima facie showing.

I’d like to reserve the rest of my time–

Anthony M. Kennedy:

If I could, counsel.

In your colloquy with Justice Stevens, you were talking about the Attorney General’s authority, under your position, of withholding deportation as an initial matter because there’s no substance to the case.

I take it you don’t have to go that far here because this was just a denial of a motion to reopen, and that would be a much simpler position for you to defend, I take it.

Maureen E. Mahoney:

–Your Honor, I do think there is a difference, yes.

I think that the burden that the alien has on reopening… of showing a meritorious claim is higher than it would be if this were at the initial deportation hearing.

Anthony M. Kennedy:

What’s your best case for that?

Maureen E. Mahoney:

Excuse me?

Anthony M. Kennedy:

What’s your principal authority for that?

Maureen E. Mahoney:

I believe that in Wang this Court–

Anthony M. Kennedy:

In Wang.

Maureen E. Mahoney:

–In Wang this Court indicated that it was important to give the Attorney General discretion to come up with–

Anthony M. Kennedy:

Was that a withholding of deportation case?

Maureen E. Mahoney:

–No, it was not, Your Honor.

Abudu was the only withholding of deportation.

William H. Rehnquist:

Justice Blackmun I think had a question.

Let me be positive that I understood you.

Did you say that even though there’s a convincing showing of persecution, the Attorney General nevertheless may deny asylum in the interests of foreign… U.S. foreign policy.

Maureen E. Mahoney:

Absolutely, Your Honor.

John Paul Stevens:

And I had this one question, too.

Going back to withholding for a minute, in so far as you rely on subsection (c) in the nonpolitical nature of the crime, do you… what is the standard of review on that?

Do you think that’s an abuse of discretion or is that a question of law as to whether these facts show that kind of–

Maureen E. Mahoney:

On a motion to reopen, we submit it should be an abuse of discretion because it is a mixed question of whether or not… of fact and law.

And we also believe that this Court should give deference to the Attorney General’s… characterization of conduct as a nonpolitical offense.

John Paul Stevens:

–So it’s deference, abuse of discretion, and a mixed question of law.

Maureen E. Mahoney:

Thank you.

William H. Rehnquist:

Thank you, Ms. Mahoney.

Ms. Pike, we’ll hear now from you.

Mary Boresz Pike:

Mr. Chief Justice, and may it please the Court:

This case raises a fundamental question about the circumstances under which the Attorney General can deny the relief of withholding of deportation, a form of protection that is mandatory under the Refugee Act, to an individual who has been found to have established prima facie entitlement to it.

For now almost a decade, the executive branch of the United States Government has labored to hand over to the British Government the individual that we have represented, Joseph Doherty.

Its efforts have been consistently rebuffed, both judicially and administratively.

The litigation has been fueled by executive branch displeasure with a 1984 decision by a United States District Court judge denying the request of the British Government for Mr. Doherty’s extradition.

That decision categorically denied the request.

The district court judge, in rejecting the request, stated that the acts for which Mr. Doherty was sought were not common crimes, nor were they capable of being categorized as acts of terrorism, but rather they were political offenses and verbatim in their most classic form.

The issues that are now before this Court–

Antonin Scalia:

What did those… what did those acts consist of that he so found?

Mary Boresz Pike:

–There were two sets of acts, Justice Scalia.

One set were acts of which Mr. Doherty had been convicted in absentia.

The other set were acts with which he was charged.

The first set of which he had been convicted involved the shooting death of a member of the Secret Air Service, a member of the British Army, in an encounter between the IRA and the British Army in North Belfast.

Mr. Doherty was one of the members of the IRA that was engaged in that operation.

And the district judge found that it had been an ambush set up to engage and attack a British military convoy.

Mary Boresz Pike:

The second set of offenses had to do–

William H. Rehnquist:

May I interrupt?

What was Doherty convicted of in that in absentia trial?

What offense?

Mary Boresz Pike:

–In that trial, Your Honor, he was convicted of murder, attempted murder, possession of weapons, and for being a member of a proscribed organization.

The second set of offenses, to return to your question, Justice Scalia, had to do with Mr. Doherty’s escape under orders of the IRA with seven other members of the IRA from a British prison in Belfast.

The district court judge determined that both sets of offenses were political and his extradition could not be had for any of the offenses for which his extradition was sought.

The issues, however, before this Court now are the outgrowth of executive branch displeasure with that decision, and its long campaign to escape the force and effect of the decision denying Mr. Doherty’s extradition to the United Kingdom.

These issues, therefore, cannot properly be understood apart from the tortuous history of this case, now almost a decade long.

For with each decision adverse to it, the executive branch has resorted to legal positions more singular and more extreme.

Thus it is that the Attorney General now claims the power to withhold from an individual the relief of withholding of deportation, even though that individual has established prima facie entitlement to it, and even though that form of protection is mandatory under the Refugee Act.

And the Attorney General is utterly without discretion.

Once the standard is met–

Sandra Day O’Connor:

Well, we are dealing though here, Ms. Pike, I think with a motion to reopen.

And there is discretion there, is there not, on the motion to reopen?

Mary Boresz Pike:

–Your Honor, motions to reopen, of course, are committed to the discretion of the decisionmaker.

But the fact of the matter is that in order to be interpreted consistently with the convention and protocol that literally gave birth to the concept in American domestic law of withholding of deportation, that discretion is not in this case absolute or without limits.

And the reason for that is this very, very significant holding of the Board of Immigration Appeals in conjunction with a motion to reopen.

And that is, Your Honor, the Board of Immigration Appeals established that Mr. Doherty had met the initial threshold.

He had established a prima facie case of entitlement to that relief.

Anthony M. Kennedy:

That’s under (h)(1) that he determined the alien’s life or freedom would be threatened?

Mary Boresz Pike:

The Board of Immigration’s order clearly directs that the case be reopened to allow him to apply for both.

Anthony M. Kennedy:

But I take the Attorney General says that he has an insubstantial case to resist the Attorney General’s determination that the exceptions apply, the (a) and the (c) exception.

Is that the… is that the Government’s position?

Mary Boresz Pike:

Yes, that is, Your Honor.

I mean, they in effect, though, do not dispute that he met the threshold he had to show, and that he established prima facie entitlement.

Now what they want to do is to ignore the fact that he did establish that he fit within this narrow category.

It is a very high standard.

And in effect, to deny him that relief without even granting him a hearing.

William H. Rehnquist:

But you agree, Ms. Pike, that the Board of Immigration Appeals is pretty much a creature of the Attorney General, isn’t it?

Mary Boresz Pike:

Your Honor, I–

William H. Rehnquist:

Perhaps in more ways than one, you may feel at times.

[Laughter]

Mary Boresz Pike:

–I could not, Chief Justice, stand before you and with a straight face deny the proposition that the Board of Immigration Appeals is not a creature of the Attorney General.

William H. Rehnquist:

But he isn’t bound by its rulings, is he?

Mary Boresz Pike:

The Attorney General is not bound by the rulings of the Board of Immigration Appeals.

But against the history of this case, Chief Justice, he cannot simply disregard them.

William H. Rehnquist:

Well, why not?

Mary Boresz Pike:

Because, Your Honor, the concept of abuse of discretion means just that, discretion can be abused.

And here it was.

William H. Rehnquist:

Why would it be an abuse of discretion if he were to disregard a finding of a subordinate body?

Mary Boresz Pike:

Because when he disregarded it, Your Honor, given the state of the record in the case, he did it in a manner that was fundamentally unfair.

Despite the fact that we had met the threshold that we had to meet, the threshold that entitled us to a hearing, he went ahead and made a determination as to the ultimate merit of our claim without ever giving us an opportunity to in any way respond to the negative features that he found in Mr. Doherty’s background.

William H. Rehnquist:

Well, do you think on a motion to reopen you’re entitled somehow under the statute to an opportunity to respond in that way?

Mary Boresz Pike:

Your Honor, absolutely, I do, when the relief that is at stake is withholding of deportation.

I do not think that in fairness I could state that as certainly if there was another form of protection that was here implicated.

But we must focus on the fact that it is withholding of deportation, that we did meet that threshold, and that that form of protection is mandatory.

And for that reason, I think that we are in a position where having been deprived any opportunity to put forward our side of the case, that is an abuse of discretion by the Attorney General.

Anthony M. Kennedy:

Did the Attorney General justify his decision not to reopen under the withholding section just on the ground that the threshold hadn’t been met?

Or that even if it had, he would make the determination under (a) and (c) that the relief was not available?

I don’t know why you’re so emphasizing the threshold, because it seems to me the Attorney General prevails if he has discretion to find that you have an insubstantial case under (a) or (c).

Mary Boresz Pike:

Your Honor, I have to disagree on that, because the fact of the matter is, is that once we do meet the threshold, it really does become at the very least an abuse of discretion to leap ahead and make the ultimate determination as to relief that is mandatory without affording us a hearing on this record.

Because the very things that the Attorney General asserted as the basis on which he premised his denial were the very acts that were found by another factfinder in the basis of an adversarial context where we did have an opportunity to put forward evidence and contest them.

Anthony M. Kennedy:

That was in the extradition?

Mary Boresz Pike:

That’s right.

But of course, the fact of the matter is, is that it is accepted that the political offense exception is really the mirror image of the nonpolitical crimes aspect of asylum law.

Both exist to provide protection that is viewed under the law as being legitimate to people who commit political offenses, or who in the asylum context may even commit crimes, but still under withholding of deportation, be entitled to protection.

So we think that on the basis of this record, Justice Kennedy, that’s what makes this wrong.

This is a case that comes before this Court with a history of now almost 9 years.

And that history cannot be ignored because time and time again the integrity of Mr. Doherty’s positions have in fact been sustained.

Mary Boresz Pike:

Now, it may have been a different case, were there not this background.

But it is there.

Antonin Scalia:

That might be true, Ms. Pike, but I don’t see how that goes to whether it was arbitrary for him to deny reopening.

Now I think what you’ve established is a district judge had come to a different conclusion about whether (a) or (c) applied.

But the basis for which he came to that conclusion was surely a basis of law, not a basis of fact.

The facts were out.

And additional hearing wouldn’t have established any… you’re not asserting they would establish any new facts.

The question is whether that offense met the meaning of (a) or (c).

Now what you’ve established is that the Attorney General’s interpretation differs from a United States district judge’s.

That may well be good cause for a lawsuit, but I don’t see why it’s an abuse of discretion for the Attorney General to say, look, it’s no use reopening, we’re just wasting time to reopen because I know, I may be wrong, but I know that I’m going to find this comes within (a) or (c).

Now if you think it absolutely doesn’t, maybe you have some appellate recourse.

But why should he waste his time reopening when he knows that he’s going to find that (a) or (c) applies?

I find it hard to call that an abuse of discretion.

Mary Boresz Pike:

There are several reasons, Your Honor.

To start with, first of all, there may well be new facts here.

In the context, not only mind you, of withholding of deportation, but also of asylum, under the regulations, even when there is a mandatory ground for denial put forward by the Attorney General or by an immigration judge, the regulations see that as serious enough to require that the alien be afforded a hearing at which he can prove that the mandatory ground for denial does not apply.

Antonin Scalia:

As an original matter, but surely not when those facts aren’t brought forward during the course of a long proceeding, and the issue is whether to reopen the proceeding, which is what we have here.

You’re not entitled to a full factual inquiry before he decides whether to reopen or not.

Mary Boresz Pike:

We think in this case were are, Your Honor, because the facts are extraordinary, and the case is extraordinary.

Byron R. White:

Well that just means that the proceeding, the matter is reopened if you’re going to just have the whole thing out on the table.

In effect, it’s just reopening it.

Mary Boresz Pike:

Once reopening is granted, yes, it would be reopened for the purposes the board had deemed.

Byron R. White:

What would happen if it were reopened that would be different if you had the hearing you wanted?

Mary Boresz Pike:

We think, Your Honor, based on past history in the case, we would certainly be able to establish that Mr. Doherty had not engaged in any serious nonpolitical crimes, and that he had not engaged in any acts of persecution.

Anthony M. Kennedy:

But your whole point is that you’re relying on the extradition record.

It seems to me that almost cuts against you.

Mary Boresz Pike:

I don’t see that it does, Justice Kennedy, because of the close fit between those various concepts.

I think that at the very least, that extradition record has to rest very firmly against the Attorney General’s diametrically opposed conclusion.

Anthony M. Kennedy:

Well, but it seems to me that’s a question of law.

Did you allege at any point in the proceedings what new evidence you would have to adduce to show nonapplicability of the (a) and (c) exceptions for subsection (h)?

Mary Boresz Pike:

We never had the opportunity.

That’s exactly what we’re saying.

We never had that opportunity.

And that is what would have been dealt with in the context of the reopened hearing.

Anthony M. Kennedy:

Well, don’t you have that opportunity in connection with your submission for the motion to reopen, to just make an offer of proof?

Mary Boresz Pike:

Your Honor, what we established for the motion to reopen was that which we were required to establish.

Our prima facie eligibility or entitlement, more correctly, in the area of withholding of deportation, to the relief that we sought.

And in addition, we established the changed circumstances and the new facts that once excepted provided us the avenue for going forward with the rest of our case.

Yet, because of the determination that the Attorney General made, that hearing process was in effect pretermitted.

We never got to that.

And I think that again, in the context of withholding of deportation, that’s a very serious matter because, as for example, the opinion of this Court in INS v. Abudu had indicated, that you cannot leap ahead in the context of relief that is nondiscretionary, that an ultimate determination on the merits can be rendered in the case of asylum, for example, or suspension of deportation or adjustment of status.

But not, not in the case of withholding of deportation.

Because it is mandatory, it is so significant.

And yet that’s exactly what happened here.

John Paul Stevens:

Ms. Pike, can I just ask this question?

In so far as the Attorney General relies on subsection (c), that they’re a serious nonpolitical crime, is the Attorney General assuming that the facts stated and developed in the extradition proceeding are all correctly… are all correct as in that proceeding, or is he relying on some other record?

Mary Boresz Pike:

Well, Your Honor, the answer to that is… the first part of your question is yes, he does assume that those facts are correctly established in the record.

John Paul Stevens:

And you take the position those facts are sufficient to establish the nonpolitical character of the crime.

Mary Boresz Pike:

We take that position, but our alternative position, if you will, is that at the very least, they entitle us to a hearing.

John Paul Stevens:

But why isn’t that record sufficient to let a reviewing court decide as a matter of law whether that subsection (c) is applicable or not?

Mary Boresz Pike:

We think, Your Honor, that under the circumstances as a matter of law, the decision cannot be made because absent the additional facts that could be adduced at the hearing, the proper balancing that is required in terms of the determination of the entitlement to that relief and possible exclusion from the protection of that relief can’t be made.

And it is clear from the handbook that construes the convention and the protocol that the withholding of deportation section is fashioned on, that that process is absolutely central to the whole determination of claims for withholding of deportation.

So absent our part of the equation, we are in effect having a decision being made against us that does not involve our part of the case.

John Paul Stevens:

I understand.

Mary Boresz Pike:

If I might continue, though, to respond to what really was the second part of your question as well.

There is a very curious aspect of the Attorney General’s decision here which your question alluded to.

And that is that although the Attorney General accepts that the facts that he chose to rely on from the extradition proceeding were correct, he admits in his opinion that in effect, he does not have to find that Joseph Doherty himself committed serious nonpolitical crimes, that it’s adequate if he can find that the Irish Republican Army committed serious nonpolitical crimes.

In effect, it is a tacit admission that there is not in this record any evidence that Joseph Doherty committed serious nonpolitical crimes.

And the thing that is most compelling about this, and indeed most chilling, is that the Attorney General ultimately bases his decision on what he refers to as material that is exhaustively documented… that’s his phrase, exhaustively documented, in the record of another case, another immigration case altogether to which we were not a party, and which did not involve issues that were even remotely identical to the issues in this case.

Consequently, we think to have relied on that and to have made the determination, number one, without letting us have a hearing, and then on the basis of facts that are in another record altogether, really did deprive us of any opportunity to establish entitlement.

Sandra Day O’Connor:

Well, Ms. Pike, if, however, the Attorney General did not abuse his discretion in relying on the waiver and denying the motion to reopen, I just don’t see how you get to those other reasons at all.

You may have something valid to argue about there, to the extent that we get into it, but I’m not sure we do.

Mary Boresz Pike:

Justice O’Connor–

Sandra Day O’Connor:

I thought these were alternative grounds asserted by the Attorney General.

Mary Boresz Pike:

–They are, but again, I must return to the basic point.

This is mandatory relief and we stepped into the circle that entitles us to go further.

If it were not mandatory relief, there might be a different result.

Sandra Day O’Connor:

But certainly your client waived the right to deportation.

He waived it.

So the question is whether that can be excused on this record and the Attorney General says no, that the decision was calculated, was an attempt, perhaps, to manipulate the system, and so forth.

Mary Boresz Pike:

I would appreciate the opportunity to respond to that.

This notion that Mr. Doherty had manipulated the system in a cynical or self-serving way I think is absolutely incorrect, and I do not think the record can be construed in that way.

The fact of the matter is that all that Mr. Doherty was doing was making an effort to avoid being deported to a country where he had a well-founded fear of persecution.

That I do not think constitutes manipulation of the process.

And in an effort to do that, Justice O’Connor, he availed himself of an option that is available under the statute to designate a country of deportation, in effect to accomplish his own removal from this country at the expense of at that time going forward on an asylum claim because he knew that he would not be rejected by Ireland.

And it is that fact that is central here, and what distinguishes this case from other cases, because under other cases… if I might just step back one moment.

First of all, you had queried earlier was this standard procedure.

Absolutely not.

The BIA said in its own decision it had found no other case where this had ever happened.

And given that fact, Mr. Doherty’s expectation of deportation to Ireland was under the circumstances reasonable.

Sandra Day O’Connor:

Well, do you say that the Attorney General’s order for deportation to the United Kingdom was itself a material change in circumstances, or that the order made enactment of the Extradition Act somehow material?

Mary Boresz Pike:

We did not say that at the time, Your Honor, because our motion to reopen had been filed in advance.

And Mr. Meese’s decision came down afterward.

Sandra Day O’Connor:

Well, what are you saying now?

Mary Boresz Pike:

Absolutely.

No question about it.

Sandra Day O’Connor:

Which?

Which is it?

Mary Boresz Pike:

Let me think.

Absolutely, it was a change in circumstance.

Sandra Day O’Connor:

What?

Was it the Attorney General’s order itself or that the order made the Extradition Act amendment somehow material?

Mary Boresz Pike:

Both are material for separate reasons, but ultimately they dovetail.

Mr. Meese’s order was material because what it did was to transform the possibility that Mr. Doherty would not be… let me start again.

The significance of the Meese decision was that it in effect ensured that Mr. Doherty was going to be returned directly to a country where he feared persecution.

That was the significance of it.

We had filed the motion to reopen within 48 hours of the implementation of the Extradition Act of 1987 because under that act, Justice O’Connor, what we feared was indirect return, but certain return to a country of persecution.

So both of those were absolutely material under the reopening standards that the regulations set forth.

And we do not think in any way that the Meese decision vitiates what had been the original integrity of the claim under the Extradition Act.

Byron R. White:

Well, did the court of appeals affirm Attorney General Meese’s order?

Mary Boresz Pike:

Not as to the need for a hearing on the motion to reopen for withholding of deportation and asylum.

Byron R. White:

I know, but did it say that he properly ordered… he properly refused deportation to Ireland?

Mary Boresz Pike:

Absolutely, Your Honor.

Byron R. White:

And properly ordered Doherty deported to England?

Mary Boresz Pike:

That is correct.

But–

Byron R. White:

You don’t challenge that here?

Mary Boresz Pike:

–We do not, Your Honor.

But he made that order, and the Second Circuit appreciated that order as being made in the context of a motion to reopen that also involved claims for relief from deportation.

So the fact of the matter is that even though that order directed his deportation to the United Kingdom, that order is not subject to being acted on until Mr. Doherty’s claims for relief under the Refugee Act are properly adjudicated.

And if I might, in a desperate attempt to try to finish the notion of why the waiver did not here obtain, under the normal situation, which everybody agrees did not happen here, if indeed there had been any perceived risk of deportation to the United Kingdom, the country where Mr. Doherty feared persecution, the immigration judge would have been obligated to go forward, to afford him the opportunity then and there to proceed on his asylum claim.

The record reveals that that never happened.

And it never happened because unlike other cases, in this case, it was already known at that point in time, there was no uncertainty, the Irish Government had indicated it would accept him into the national territory.

That was where he was going.

That was the country he had designated.

And therefore, the immigration judge saw no purpose to go forward on a claim for asylum to prevent deportation to a country where he wasn’t going to be deported.

It was that simple.

And the asylum claim, the asylum hearing did not go forward at that point in time for that reason.

I would like finally to respond in this point to one other point that had been made by our adversary relative to the Extradition Act and the fact that there was no material change in the law as to that.

The fact of the matter is that there was indeed a very material change that was worked by the Extradition Act, and that has to be appreciated in the context of providing the adequate basis for Mr. Doherty’s motion to reopen.

Mary Boresz Pike:

The Extradition Act, 1987, as a matter of black-letter law, wrote out of existence the political offense exception to extradition.

Whatever the Irish courts may have done prior to that really does not in any way obtain in terms of the finality that was accomplished once the Extradition Act was implemented.

Once it was, there was no question.

That defense was not available.

That was the defense that Mr. Doherty had successfully defended against extradition with here, and we had every reason to believe that he could have successfully defended against extradition there.

Certainly he had a strong case.

But with the passage of the Extradition Act–

Antonin Scalia:

You argued… I thought you had argued that he couldn’t.

I thought you had argued that.

Mary Boresz Pike:

–Your Honor, we had acknowledged that the Irish courts had made decisions that had made savage inroads into the political offense exception.

There is no question about that.

We did.

But the defense still existed.

It was capable of being raised.

And we felt that given the facts of Mr. Doherty’s case, that certainly he would still be able to go forward with that, and conceivably at least have the opportunity of defending against extradition on that ground.

Once the Extradition Act was passed, that was absolutely removed.

There simply was no possibility of doing that.

I see that I am out of time.

Thank you.

Byron R. White:

Ms. Pike.

You have 2 minutes, if you have rebuttal.

Maureen E. Mahoney:

Thank you, Your Honor.

Just a few points.

First, with respect to withholding, I’d like to emphasize that there simply is no question of fact to be resolved at an evidentiary hearing.

Mr. Doherty’s counsel had an opportunity before the Attorney General to put in whatever evidence they thought might be appropriate to show that there was an issue of fact, but there simply isn’t one.

The admissions that Mr. Doherty makes in his extradition transcript establish that there simply are serious reasons for the Attorney General to believe that serious nonpolitical offenses were committed.

Therefore, a hearing would serve no purpose, and that should not require the Attorney General to reopen the proceeding.

In addition, I’d like to emphasize that the Attorney General did rely on a broader range of conduct in determining that serious nonpolitical offenses had been committed than those relied upon by Judge Sprizzo.

Judge Sprizzo focused very particularly on the basically the murder of the British captain, and simply mentioned in passing that no civilians were injured on May 2nd of 1980, whereas the Attorney General focused specifically on the fact that Mr. Doherty sought to pursue his own political motives not only through the killing of the British captain, but also through deliberate acts of violence directed at citizens of Northern Ireland on that day.

John Paul Stevens:

It was the factual basis for that conclusion, the record in the other case?

Maureen E. Mahoney:

No, Your Honor, that was in the extradition hearing itself.

The facts surrounding the May ’80 events that Mr. Doherty admitted were that his group hijacked a van, held the driver captive, forcibly seized a private residence in a residential neighborhood, held the family captive, and waged a gun battle with automatic weapons from the family’s living room.

The Attorney General found that that conduct was precisely the type of conduct that endangered innocent civilians and could not… and had to be regarded as serious nonpolitical offenses.

I see my time is up.

Thank you.

William H. Rehnquist:

The case is submitted.

The honorable court is now adjourned until Monday next at 10 o’clock.