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

Immigration and Naturalization Service v. Doherty

Media for Immigration and Naturalization Service v. Doherty

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

Audio Transcription for Oral Argument - October 16, 1991 in Immigration and Naturalization Service v. Doherty

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.