Immigration and Naturalization Service v. Rios-Pineda

PETITIONER:Immigration and Naturalization Service
LOCATION:Massachusetts Department of Education Bureau of Special Education Appeals

DOCKET NO.: 83-2032
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 471 US 444 (1985)
ARGUED: Mar 20, 1985
DECIDED: May 13, 1985

Alan I. Horowitz – on behalf of Petitioner
Lawrence H. Rudnick – on behalf of Respondents

Facts of the case


Audio Transcription for Oral Argument – March 20, 1985 in Immigration and Naturalization Service v. Rios-Pineda

Warren E. Burger:

Mr. Horowitz, I think you may proceed when you’re ready.

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

The Attorney General has provided by regulation that completed deportation proceedings may be reopened in his discretion to account for new circumstances.

Harry A. Blackmun:

Mr. Horowitz, that’s by regulation, isn’t it?


There’s nothing in the statute.

Harry A. Blackmun:

And I suppose the Service could… the Attorney General could revoke that regulation if he wanted to?

That’s right.

Withdraw it?

It’s possible that Congress might want to do something about it at that point, but certainly it’s within the Attorney General’s authority to revoke the regulation, and the fact that he himself promulgated it suggests that the Attorney General is the one who knows what it means and that he has considerable discretion in how it is to be applied.

In addition, Congress has granted the Attorney General discretion to suspend the deportation of a deportable alien who meets certain threshold criteria.

In this case, Respondents have sought to reopen their deportation proceedings in order to seek suspension of deportation.

The question in this case is whether in exercising his twin discretion that I have described the Attorney General could take into account the fact that Respondents achieved eligibility, this threshold eligibility, for suspension of deportation only by filing frivolous appeals and engaged in other conduct flouting our immigration laws.

The Court of Appeals found that the Attorney General abused his discretion by taking these factors into account.

We have sought certiorari here because this ruling threatens substantial disruption of our immigration processes.

Sandra Day O’Connor:

Mr. Horowitz, you agree that the proper standard for review is the abuse of discretion standard?

I would agree that that is the proper standard of review.

We think that it is quite–

Sandra Day O’Connor:

You just think it wasn’t applied properly here?

–We think if the Court of Appeals’ decision is correct here, there’s really no room left at all for the Attorney General to apply any discretion, and that to the extent the opinion suggests that abuse of discretion is the correct standard the court was really only playing lip service to that but in fact was not applying it.

In 1974, with the assistance of a professional smuggler, both Respondents entered the United States without inspection.

In 1978, Mr. Rios-Pineda was discovered by Immigration officials and was granted the privilege of voluntary departure.

But he did not depart as promised and deportation proceedings were instituted against both Respondents.

Respondents conceded deportability at their deportation hearing and in December 1978 they were ordered deported.

Because they had been in the country for only four and a half years and the suspension of deportation relief requires seven years continuous presence in the United States, Respondents were not eligible for that relief and their request for that relief was denied at the deportation hearing.

Respondents took an immediate appeal to the Board of Immigration Appeals, raising several wholly unmeritorious contentions.

And I should perhaps note here that both Respondents’ brief to the Board of Immigration Appeals and their later brief to the Eighth Circuit are reprinted in the joint appendix.

In accordance with agency regulations, this appeal automatically stayed Respondents’ deportation order.

When the Board dismissed the appeal, Respondents filed a petition for review with the Court of Appeals raising essentially the same contentions.

That appeal also stayed, automatically stayed their deportation pursuant to statute.

William J. Brennan, Jr.:

Now is that the ’82, the one that resulted in the ’82 decision, Mr. Horowitz?

That’s right.

By March of 1982–

William J. Brennan, Jr.:

I notice your brief doesn’t say much about that ’82 decision.

Isn’t that relevant to this thing we have to decide?

–Well, I think the question here is whether the Court of Appeals erred in its later decision in 1983.

William J. Brennan, Jr.:

Well, I know, but as I read their later opinion what they said is that the law of the case was the ’82 decision.

They did order, in effect they did order reopening, didn’t they, in ’82?

Well, they ordered–

William J. Brennan, Jr.:

And the Government… am I right about that?

–Well, no, I would disagree that they ordered a reopening.

They ordered the Board to consider a petition to reopen, a motion to reopen, rather.

The Board considered it, denied it for various reasons.

William J. Brennan, Jr.:

But the Government never appealed the ’82 decision, did it?

No, there was no reason to appeal, because all they had done was given the Respondents the opportunity to file a motion to reopen, which the Board is usually willing to consider, and it asked the Board to consider it.

John Paul Stevens:

It didn’t ask it, Mr. Horowitz.

It said the Board shall promptly consider and rule upon, is the language at the end of the opinion.

All right, ordered the Board to consider it and rule upon it.

But that is what the Board–

John Paul Stevens:

Did the Board do that?

Did the Board carry out that mandate?

–We think the Board carried out that mandate.

It considered the petition… the motion, excuse me.

It denied it for several reasons.

It found it was filed in an untimely fashion, an issue that has disappeared from the case.

It also found that the motion did not make a prima facie case of extreme hardship.

And I think this is the point where the Court of Appeals in its second opinion disagreed and found that in its view the first opinion had stated that the Respondents had already made a prima facie case.

William H. Rehnquist:

But the Board in this Court isn’t bound by any law of the case doctrine of the Eighth Circuit, is it?

No, the Board’s not bound by a law of the case doctrine in this Court.

But I don’t think the law of the case really applies at all to the issue that’s presented here, even in the Eighth Circuit.

William J. Brennan, Jr.:

Do I understand what you said, Mr. Horowitz, that the Government has no quarrel at all with the 1982 decision?

I think that’s fair to say.

We did not think it was inappropriate that we be asked to–

Warren E. Burger:

I suppose the Attorney General should be free to think it was wholly unnecessary for them to do what they did in 1982, but out of deference to the judicial branch he complied with it rather than appealing.

–Well, in general, when something new comes up and the Court of Appeals just asks the Board to consider it, normally the Board is willing to do that, unless it considers it completely unreasonable.

And I would say they did not consider the 1982 decision completely unreasonable.

I think, just to clarify this law of the case question, there are two grounds for the Board’s later denial of the motion to reopen.

One was that no extreme hardship has been shown.

The Court of Appeals disagreed on the second appeal and found that it had found extreme hardship.

That’s not really an issue in the case any more in this Court.

But the Board separately… an independent ground for its decision denying the motion to reopen was that, regardless of whether extreme hardship had been shown, it was going to deny the motion to reopen in its discretion because: A, the Respondents had achieved their threshold eligibility for suspense remedy only by filing frivolous appeals; and B, because they had in other ways showed their disregard for the immigration laws, because of their use of a smuggler and because they had–

William J. Brennan, Jr.:

Did I understand you to say that if the Eighth Circuit ordered the Board to do something, if the Board were to do it, it would do it merely out of deference to the Eighth Circuit and not because it was required to comply with any direction of the Eighth Circuit?

–I’m sorry, Justice Brennan, I did not mean to give that impression.

William J. Brennan, Jr.:

I see.

That’s what I thought you answered Justice Stevens.

The Board had to be complying with the mandate of the Eighth Circuit, and I think any fair reading of the first Eighth Circuit decision… this is discussed in our petition more than actually in our merits brief… is that the Board did comply with the mandate of the Eighth Circuit.

Warren E. Burger:

Well, they have only two choices: either to comply with it or petition for cert. Isn’t that so?

That’s right.

But the mandate of the Eighth Circuit was just to allow Respondents to file this motion to reopen and then to consider the motion to reopen.

And as I said at the outset, the Attorney General has considerable discretion in deciding whether to reopen deportation proceedings.

He allowed them to file the motion to reopen, he considered it.

He denied it for several reasons that were stated in an opinion.

That’s all the Eighth Circuit asked him to do.

To the extent the Eighth Circuit later decided that it had decided the extreme hardship the first time around, it was really reaching well beyond its powers, since extreme hardship is committed to the Attorney General to decide in the first instance.

John Paul Stevens:

May I just ask you… I’m sorry… if the grounds on which it denied the reopening after the Court of Appeals decision relied on anything that was not before the Court of Appeals at the time of its decision?

They knew about the time that had been taken, they knew about the smuggling.

Well, none of those reasons had been given by the Board before.

So although the events that served as the basis for the Board’s later denial… that is, the filing of the frivolous appeals and the disregard for the immigration laws… while those had as a chronological matter already happened, there was no reason to think that the Eighth Circuit was thinking about them.

They had not been given as a reason for any action by the Attorney General, and it was only later that this became an issue.

John Paul Stevens:

How much time elapsed because of the filing?

John Paul Stevens:

I kind of lost track, the filing of the frivolous appeals.

Almost three years, wasn’t it?

Why does it take so long… why did it take so long to dispose of the appeals.

Is that time all chargeable to the Respondents or has the Government got to share some responsibility for that?

Well, most of it is chargeable to the Court of Appeals for the Eight Circuit.

It was about a year from the time this case was argued in the Eight Circuit to the time the decision came down sending it back.

John Paul Stevens:

It takes them that long to decide frivolous cases?

Well, they didn’t even rule on the issues that were before them.

All they did was send it back for further consideration.

They may have been holding it in order to allow the seven years to elapse.

But there were delays, I think, just throughout the administrative and judicial system.

Thurgood Marshall:

Can you in short order tell me the difference between the first and the second Court of Appeals?

I mean, why was one time it was good and the next time it wasn’t?

The first time–

Thurgood Marshall:

One time you liked it, the other time you didn’t.

–Well, I wouldn’t go so far as to say we liked it, but we would not consider it a serious threat to the immigration system.

The first appeal to the Court of Appeals simply raised several contentions by Respondents that we think were frivolous as to why their deportation order was incorrect.

They had not been able to apply for suspension of deportation earlier because they had not met the seven year requirement.

The second… at the first appeal, the Court of Appeals decided that it would give Respondents an opportunity to apply for this relief, now that the seven years had passed.

So it simply sent the case back to the Board to consider an application, something that had never been ruled on before.

Thurgood Marshall:

On the seven year basis?

Well, the seven years had been satisfied at that point.

The Board denied the motion for other reasons, the main reasons the ones that are at issue here, that the eligibility had been achieved only through these dilatory tactics, filing frivolous appeals, and because of the other disregard for the immigration laws.

Thurgood Marshall:

Well now, that’s what I want, the difference between that and this one.

Well, that is the second Board decision.

That decision was then appealed to the Court of Appeals, and the Court of Appeals on the second time around, addressing this decision of the Board for the first time, said that it was an abuse of discretion for the Board to rely on those two factors, that the fact that these appeals which completely lacked any substantive merit were the only way in which Respondents had become eligible for this relief.

That, the Court of Appeals found, was irrelevant and an improper factor to be relied on.

The Board couldn’t rely on it.

Second, the fact that Respondents had agreed to depart voluntarily but then not shown up for voluntary departure, the fact that they hired a smuggler to bring them into the country, these were also considered by the Court of Appeals to be improper factors on which the Board could not rely.

The Government has serious problems with that decision because in fact it completely eliminates any discretion for the Attorney General in ruling on these things.

There just aren’t other factors.

These are the kinds of factors that the Attorney General ought to be relying on.

Thurgood Marshall:

You mean, the order was different from the first order?

Well, the order was broader.

The order of the Court of Appeals on the second time–

Thurgood Marshall:

You’re not just talking about the language, are you?

–Well, the issue before the Court of Appeals was different.

The Court of Appeals didn’t really hold anything the first time around.

All it did was ask the Board… or order the Board to afford Respondents an opportunity to seek administrative relief.

On the second go-around, the Court of Appeals said that the Board had erred and had abused its discretion.

William H. Rehnquist:

Well, how can the Court of Appeals vacate a decision of the Immigration and Naturalization Service without holding anything?

It’s not easy, at any rate.

Well, I wouldn’t necessarily say that they vacated the decision, because the premise of filing a motion to reopen deportation proceedings is that there is an order of deportation outstanding.

William H. Rehnquist:

Well, but there was a petition to review the decision of the INS in the first Court of Appeals case, and you say the Court of Appeals didn’t hold anything but simply directed the INS to consider a petition to reopen.

Well, they have to hold that something the INS did was improper, don’t they, to come to that conclusion?

Otherwise they’d have to affirm it.

Well, I don’t think they have to hold that anything the Board had done was improper, and they did not, certainly did not hold that anything the Board had done was improper.

Perhaps what… I’m not sure what you’re driving at, Justice Rehnquist, but it is true that the Court of Appeals, I think, did make a mistake in the first appeal in that they did not really rule on Respondents’ appeal, the contentions that they had made.

These contentions were that the deportation order was wrong, and the Court of Appeals should have ruled on those because that was really… the Respondents were asking for more relief there than what they got from the Court of Appeals.

So they should have ruled on those and rejected them.

William J. Brennan, Jr.:

Well, Mr. Horowitz, what do you think the Respondent won in the Court of Appeals, in the first go-around in that court?

All he won–

William H. Rehnquist:

Did he win the appeal?

–He didn’t win the appeal.

Nothing was decided on the appeal.

He just obtained the opportunity to go back for further relief.

William J. Brennan, Jr.:

Something he did not have without the Court of Appeals’ judgment, did he?

Well, I think we’re really getting to the crux of the case.

All that happened during the course of the appeal to the Ninth Circuit was that time passed, three and a half years passed.

And this enabled, because the relief that the Respondent wants ultimately, which is suspension of deportation, is relief that is not available to him until he’s been in the country for seven years, what he got was managing to stay in this country until the seven-year period had passed.

At that point it didn’t matter what the Court of Appeals said.

He then had the opportunity to file this motion to reopen.

And that’s exactly the point here, is that by filing appeals that had absolutely no merit he’s just been able to hold up the system long enough to achieve eligibility for relief.

Warren E. Burger:

Well, the short answer is that what he got out of it was time, isn’t it?


He took these appeals to buy time and he succeeded very well.

Warren E. Burger:

Well, does the Board–

–Explaining it in those terms, the Court of Appeals appears to have simply not liked the way the Attorney General exercised his discretion.

On the second appeal, the court said that the Attorney General was not allowed to rely on the fact that these appeals were taken to buy time.

William H. Rehnquist:

Well, does the Board have any flat policy as to when the necessary seven-year period stops running?

I mean, could the Board take the position under the statute that at the time the deportation proceedings is brought that’s the end of the seven-year period?

Any time after that engaged in litigation simply can’t be counted towards the seven years?

I think the Board could take that position.

I think it would not be an abuse of discretion for the Board to take that position.

In fact, however, the Board has not taken that position, and they will entertain these motions to reopen.

William H. Rehnquist:

Even though part of the time results from litigation by the deportee?

Yes, even though part of the time was.


William H. Rehnquist:

I’m sorry.

Had you finished your answer?

I did have… I wanted to just think through this one thing.

You rely on the frivolous character of the appeals in your brief, and one of the issues I guess is whether the fact that the two children are American citizens would somehow give them some kind of a legal argument.

I gather your position is, even if the appeals raised very close constitutional, important questions, you’d still have the same discretion?

–We’d still have the same discretion.

That would be a closer question.

John Paul Stevens:

And therefore you could say, well, the time was accumulated by litigation, even though prosecuted in good faith and with substantial questions raised.


I would say, getting back to Justice Rehnquist’s point, I think the Board could say that the time… from the Board’s perspective, they are not going to reopen deportation proceedings just because further time has now run after the deportation proceedings have closed, just because appeals were taken.

I think they could take a flat rule.

They have not done that.

They are willing to consider these applications.

But I think, given that, at a minimum, at a minimum, the Board is not abusing its discretion unless the appeals have been taken for good reason, unless a case like you posit, where the appeal… we described this in our reply brief… where it would be reasonable for Respondents to have taken an appeal quite apart from the delay that they were going to gain from it, but rather to take the appeal on their own merits.

John Paul Stevens:

Well, that’s true in this case, though, that this issue about the American children had never been decided by this Court, at least.

I guess it had been decided a couple of times by lower courts.

Well, I think it’s hard to… I find it hard to say that that claim was not frivolous.

It was frivolous.

It had been rejected by several courts, including the Eighth Circuit.

There was no argument made in any of the briefs suggesting why the claim had any merit, no case citation, nothing suggesting why the cases were wrong.

And I think on its face, although it is true that one district court had once accepted this, the claim is really quite ridiculous, because it means that anyone could come into this country and all they have to do is run and have a baby as soon as they can and then they can’t be deported, and that’s clear.

John Paul Stevens:

Let me ask you about the other half of your abuse of discretion argument, the fact that they had violated the immigration laws when they came in, which I guess is the… that plus the delay are your two factors.

Isn’t that always true in deportation cases, and if so, is it a fair factor to use, because doesn’t it just mean you can use it when you want to and you don’t use it when you don’t want to?

Well, no, that… you’re right about that, that is not what we relied on, that they violated the immigration laws when they came in.

That is true of everyone who applies for suspense, suspension of deportation.

Thurgood Marshall:

Well, but everyone didn’t come in by smuggler.

That’s correct, Justice Marshall.

Not everyone came in through use of a smuggler, which indicates a greater degree of premeditation and flouting of the Government immigration laws.

In other words, I think the Board–

John Paul Stevens:

You mean that’s worse than swimming across the river?

–Well, I think the Board is entitled to draw some distinctions between a person who maybe works in a field near the U.S. border and he never sees any Border Patrol agents or anything and figures, well, the United States must not really care whether I go.

John Paul Stevens:

But there’s surely premeditation in both cases.

Well, no; he may just walk across because he sees no one stopping him.

I think the more important factor here, though, other than the use of a smuggler, is that the Respondent here deceived the Immigration Service even after he had been apprehended.

They offered him administrative voluntary departure.

He accepted that.

He asked for extensions of time because his wife is pregnant, and then when they finally told him there was going to be no further extensions he just didn’t show up for voluntary departure.

And in fact the record I think strongly suggests that he never had any intention of voluntarily departing.

In fact, at the Immigration Judge’s hearing where the judge asked him whether he wanted to apply for voluntary departure, a prerequisite to applying is stating at the hearing that you will in fact depart if you’re granted voluntary departure.

And if you look at the transcript of the hearing you’ll see that it took several minutes for the Immigration Judge to coax this statement out of him, because he said several times that he was not going to leave no matter what.

And once someone is caught by the immigration system, I think the Attorney General is entitled to take into account whether that person is going to comply, sort of play by the rules of the game at that point, I mean, here is someone who has really taken, every step of the way has taken whatever steps he can, even if it includes deceiving the immigration authorities, to escape deportation.

William H. Rehnquist:

Well, what again would be the basis for the Attorney General’s suspending deportation in this case?

William H. Rehnquist:

What does the regulation say?

Is it hardship?

Well, the statute says that the alien has to meet three threshold criteria: seven years continuous presence; he must be of good moral character; and he has to show extreme hardship.

Once he meets those three criteria, at that point the Attorney General then has discretion to decide whether he should stay or not.

Some of the thing she would take into account I think are the degree of the hardship, even if it meets the extreme hardship.

William H. Rehnquist:

And this is just totally a matter of discretion, is it not, with the Attorney General?

Well, the Court has described it as unfettered discretion.

William H. Rehnquist:

Well then, why does the Court of Appeals have the right to review it at all?

Why do you say it’s an abuse of discretion standard when there are no standards for the exercise of the discretion in the first place?

Well, the statute gives the alien an opportunity to appeal to the Court of Appeals.

I think it’s a loose, very deferential standard of review, but there are… for example, if the Board were to rely on some factor that clearly could not have been within the contemplation of Congress in setting up the remedy, I think the court might be justified in finding an abuse of discretion, if they said, we’re going to grant it to everybody who’s name starts with A, but nobody whose name starts with J.–

William H. Rehnquist:

But here Congress hasn’t even set up the remedy.

The Attorney General has set up the remedy.

–Well, no, the remedy of suspension of deportation is set up by Congress.

William H. Rehnquist:

Yes, but the petition to reopen is set up by the Attorney General.

I agree, I agree.

William H. Rehnquist:

Why shouldn’t that be totally within his discretion?

Well, I think it could be argued that it is totally within his discretion.

But it has been found that… courts have found that they have jurisdiction to review these.

William H. Rehnquist:

What courts have found that?

Every court that reviews these petitions.

I don’t know that it’s really been litigated.

William H. Rehnquist:

Well, hasn’t this Court spoken of unfettered discretion?

The Court spoke of unfettered discretion actually in connection with the suspension remedy, and I understood that to be an expression of very broad discretion, but not necessarily unreviewable discretion, because the suspension remedy is clearly subject to review.

William H. Rehnquist:

Well, but review under what standard?

I mean, I wonder whether the Government isn’t conceding more than it ought to in this case.

Well, I think the standard of review… I think the Court of Appeals is entitled to find an abuse of discretion if the reasons–

William H. Rehnquist:

Well, what cases from this Court do you rely on for that proposition?

You said unfettered discretion is what this Court has said.

Now, the Court of Appeals said abuse of discretion.

William H. Rehnquist:

Where does the Court of Appeals derive that, what authority?

–Well, the Court said unfettered discretion in the case of Jay versus Boyd, but the Court went on in that case to decide whether the Attorney General had in fact abused his discretion there.

So I think it was sort of implicit in the Court’s decision that there is some… there could be conceivable circumstances under which it would be legitimate to find abuse of discretion.

I think there are not many.

Warren E. Burger:

Are you saying that even if the standard is unfettered discretion, there can be an abuse of discretion?

Well, the statute doesn’t say unfettered discretion, and I would understand the Court’s statement to that effect to mean that–

Warren E. Burger:

Courts of Appeals have generally referred to it as discretion with a wide latitude and terms of that kind, have they not?

–The Courts of Appeals have referred to it that way.

The Courts of Appeals, particularly this circuit and the Ninth Circuit, have not necessarily applied it that way, and that’s really our concern.

We think a real abuse… the Government could certainly live with a real abuse of discretion standard.

We make, the Board makes these decisions, gives reasons for these decisions, and we think they’re legitimate reasons, as long as courts are willing to defer–

Harry A. Blackmun:

Well, I suppose if the decision was made purely on the basis of race there would be some problem.

–Yes, purely on the basis of race, or even if it was made for some completely arbitrary reason that was placed on the record, and it could be not conceivable that Congress contemplated that as within the scope of the discretion it was conferring on the Attorney General, I think that would be grounds.

John Paul Stevens:

Well, is it even clear if it were made on the basis of race it couldn’t be done?

At one time immigration policy did divide people up by nationality and different parts of the world.

Say they decided to exclude all Orientals, for example.

I spoke too hastily there, I think.

I mean, in the immigration area there certainly is reason to draw distinctions on the basis of race.

But I think it would be subject to–

John Paul Stevens:

I just wonder if your position really isn’t, just as Justice Rehnquist suggested, there’s absolutely no limit on this discretion?

–I don’t think that is our position.

John Paul Stevens:

It would fit the statute.

The Attorney General is willing to have his discretion reviewed, as long as it is reviewed on the basis of abuse of discretion.

John Paul Stevens:

Would it be an abuse to have a policy, no more Mexican nationals?

We deport all Mexican nationals; we’ve got too many in this country.

By the Attorney General?

John Paul Stevens:


I’m not sure.

I think that it would be arguable at least that Congress did not… that that was contrary to the will of Congress.

Congress is the one that sets up quotas.

I’d reserve the remainder of my time.

Warren E. Burger:

Mr. Rudnick.

Lawrence H. Rudnick:

Mr. Chief Justice and may it please the Court:

I’d like to initially focus on what the Court of Appeals actually decided, rather than–

Warren E. Burger:

Which time?

Which time, the first or the second?

Lawrence H. Rudnick:

–In the second decision, the decision that’s the subject of this petition.

I’d like to focus on what the Court of Appeals actually decided, rather than the Government’s characterization of it.

The Court of Appeals never held that the Government could not consider, that INS could not consider, that the Board could not deny motions to reopen where the seven years of continuous physical presence were obtained by frivolous appeals.

To the contrary, the Eighth Circuit Court of Appeals considered decisions from the Ninth Circuit which had basically said there could not be discretionary denials where the three threshold requirements had been met and it rejected that.

It said, we assume that the Board has this power, but we reverse the Board here because the decision isn’t rational because the petitions and appeals were not themselves frivolous.

That’s what the court held.

As to the disregard of the immigration laws, they said disregard of the immigration laws might well be a factor to be considered by the Board, but the Board hasn’t explained why the disregard in this case is any different from any other deportable alien.

The remedy of suspension of deportation only applies to deportable aliens.

It’s a statutory prerequisite, so we can’t find them not entitled because they’re deportable.

The Board didn’t explain why anything that these aliens had done–

William H. Rehnquist:

Well, did the Board say that it was considering simply the fact that they were deportable or the fact that they had been smuggled in illegally?

Lawrence H. Rudnick:

–They said that they considered… in their summary of what they considered, in addition to the frivolous appeals… and it did say “in addition to”… that they had used a paid smuggler and had failed to depart voluntarily.

William H. Rehnquist:

And the Court of Appeals said that was not a permissible exercise of the Attorney General’s discretion?

Lawrence H. Rudnick:

No, what the Court of Appeals said, that the Board hasn’t explained why these facts are a peculiar problem under the immigration laws.

The Board hasn’t used its expertise to explain to us.

William H. Rehnquist:

When you’re dealing with unfettered discretion, why should the Board have to explain anything to the Court of Appeals?

Lawrence H. Rudnick:

The derivation of the term 1956 decision of this Court in Jay versus Boyd.

On the previous… that’s on page 354.

On page 353 of that decision, the Court talks about the sound discretion of the Attorney General.

And since Jay this Court has of course decided INS versus Wang.

In INS versus Wang, footnote 5 talks about the discretion of the Attorney General and it doesn’t talk about the unfettered discretion.

Sandra Day O’Connor:

Last term in Phinpathya, the Court said it was entirely within the Board’s discretion.

Lawrence H. Rudnick:

That’s correct.

Sandra Day O’Connor:

So I think the language has been very broad and makes it very difficult to justify the Eighth Circuit’s approach.

Lawrence H. Rudnick:

The language… that’s footnote 6 in Phinpathya, which of course you wrote.

If it were entirely within the discretion, then there’d be no jurisdiction in the Court because there’d be no purpose to have jurisdiction.

But Congress has provided for jurisdiction, and this Court in Jehovah versus Rosenberg in 1964 found that there was jurisdiction by petition for review in the Courts of Appeals to review motions to reopen to assert a suspension of deportation claim.

So there is jurisdiction.

William H. Rehnquist:

Well, but it’s not so much a jurisdictional question I was asking about, but your suggestion, based on the Court of Appeals’ opinion I realize, that the Board not only must state reasons why it chooses not to reopen the case, but has to explain to the satisfaction of the Court of Appeals why these reasons make the case different from some other case.

I mean, you can play that game for 20 years.

Lawrence H. Rudnick:

No, I don’t think that the Court of Appeals was… I think what the Court of Appeals was applying was an arbitrary and capricious standard, and saying there’s a range of decisions that we might disagree with, that we have to uphold, we must affirm, because you are the primary enforcer of the immigration laws; but we as a Court of Appeals have a duty to make you make those decisions in a rational way.

You have to explain why you treat A differently from B, and that has been the thrust of the post-Wang Court of Appeals decisions.

In Ramos versus INS, which is a Fifth Circuit case cited in both briefs… that’s the thrust of virtually all of the Court of Appeals decisions since Wang.

William H. Rehnquist:

But there’s a presumption of regularity in any administrative proceeding, and surely the burden is on the party that wants to upset the decision to show that these people have been treated differently from somebody else.

But the Court of Appeals didn’t indicate, we see other cases where you have treated people different.

They said you have to explain why this makes cases different from other factual cases.

And it seems to me that just reverses the ordinary presumption.

Lawrence H. Rudnick:

I don’t think that the Court of Appeals was saying that there is a presumption that the Board did anything wrong.

I don’t think they’re reversing that presumption.

I think they’re saying: Board, you just have to give us some rational reasons; these reasons don’t make any sense to us.

William H. Rehnquist:

But can a rational Court of Appeals fairly say that the reasons given by the Board here don’t make any sense to us… smuggled in, illegally entered the country, frivolous appeals?

It seems to me, I thought the Court of Appeals was expressing kind of an equal protection idea, that you may have let other people stay about whom these same things could be said.

But now you suggest that it’s kind of a due process thing, that no rational Attorney General could refuse to reopen just on these facts.

I doubt that even this Court of Appeals said that.

Lawrence H. Rudnick:

I think it’s more a matter of what they were imposing was a matter of administrative fairness.

William H. Rehnquist:

Well, where did they get the right to impose that?

Lawrence H. Rudnick:

I think it’s what Congress intended.

William H. Rehnquist:

Well, where do you get… at what part of the Act do you find that?

Lawrence H. Rudnick:

Congress provided for suspension remedy, and I think what the Court of Appeals assumed is that Congress intended that remedy be evenhandedly administered.

Sandra Day O’Connor:

But Congress didn’t even require motions for rehearing to be granted or considered.

So it’s just, you’re a step removed from that.

Lawrence H. Rudnick:

The Board’s been provided… well, the motion process is provided by the Attorney General.

It’s interesting that if you look at the regulations, the old regulation, the predecessor to the current one, 8 CFR 3.2, used to say that the decision was solely within the discretion of the Attorney General.

The present regulation doesn’t say that.

Lawrence H. Rudnick:

It’s framed in the negative.

And this Court in Wang says because it’s framed in the negative that gives the Attorney General broad discretion, but not unfettered discretion.

William H. Rehnquist:

Well, in Wang it said broad discretion.

Jay against Boyd said unfettered discretion.

You seek to draw from Wang the inference that, because the term “broad discretion” was used, the term “unfettered discretion” has been disapproved, and that really stretches things.

Lawrence H. Rudnick:

Jay is inconsistent in its usage.

It also uses the term

“sound discretion of the Attorney General. “

and that would imply certainly that it was reviewable as to unsoundness, irrationality, arbitrariness.

Warren E. Burger:

Did Congress say “sound discretion”?

Lawrence H. Rudnick:

In the Section 244 in the Act itself, it says

“in the discretion of the Attorney General. “

It doesn’t say “sound”.

Warren E. Burger:

They didn’t modify it with any adjectives, then?

Lawrence H. Rudnick:

That’s correct.

As to the question from Mr. Justice Stevens as to delays, a lot of the delays in this case can be laid at the feet of the Immigration Service and not at the feet of the alien.

Just to note that the appeal was taken in December of 1978 and there wasn’t any decision from the Board until May of 1980.

That’s not time chargeable to the alien.

He didn’t do anything to bring that about.

Harry A. Blackmun:

And then the Eighth Circuit on the first go-around sat on it for a solid year.

Do you know why?

Lawrence H. Rudnick:

I don’t know why.

I know the Government moved to dismiss.

They moved to vacate the stay and dismiss the appeal, from the docket entries, and I know that that was denied by the Eighth Circuit, and then they then scheduled the case for argument, and it was argued and decided.

I can’t know why it took the Eighth Circuit that long to decide.

Harry A. Blackmun:

And a three or four-page opinion for a whole year.

In the second go-around they sat on it for eight months.

Lawrence H. Rudnick:

Yes, I think that’s correct.

Harry A. Blackmun:

Are they that far behind?

It’s not your part of the country.

Lawrence H. Rudnick:

I’m not that familiar with the practice of the Eighth Circuit, Mr. Justice Black.

William J. Brennan, Jr.:

What did your client get out of the first go-around?

Lawrence H. Rudnick:

He got a chance to apply for suspension.

William J. Brennan, Jr.:

That was all?

Lawrence H. Rudnick:

Well, it’s possible, and the Court of Appeals did read their previous opinion the second time around as mandating that the motion to reopen be granted.

It is… frankly, I must say I find the first decision equivocal.

There are parts of it–

William J. Brennan, Jr.:

Well, what did the Court of Appeals mean by law of the case?

Lawrence H. Rudnick:

–I think they felt that, when they considered it the second time, that the first time they had ordered the Board to reopen and that the Board wasn’t free to deny the motion.

William J. Brennan, Jr.:

Well, are you arguing that the second gave them nothing that the first hadn’t already given?

Lawrence H. Rudnick:

Oh, no.

I think the… our position is not that the first… we don’t adopt the law of the case argument.

I just cannot read the… in fairness to the Government, I don’t think that the first opinion is unequivocal.

In fact, I think it’s perfectly ambiguous.

What the second opinion gave, the second opinion orders the Board to grant the motion to reopen.

The first opinion arguably did.

The court felt that it had.

It’s arguable, but it’s not… it wasn’t well established.

Now, the Attorney General clearly continues to have the discretion to… I use the word… sanction, to pretermit or to cut off applications for suspension of deportation where the seven years have been improperly gained.

The Court of Appeals didn’t say they couldn’t do that.

What the Court of Appeals said is: You said it was frivolous; we’ve taken a look at it and most of what, the conduct that was alleged to be frivolous, took place in front of us, and we have looked at it and we have determined that it’s not frivolous.

They’re not saying that the Attorney General can’t utilize that authority.

They’re just saying that in this particular case, as applied to the facts of this case and as applied to the law of this case, that it’s not frivolous.

William H. Rehnquist:

By what standard should we review the Court of Appeals’ conclusion that the conduct before them and by them wasn’t frivolous?

Lawrence H. Rudnick:

I think some deference is due the decision of the Court of Appeals, since the activity talked about took place in front of them.

I wouldn’t say it’s an abuse of discretion standard.

I think that would be an overbroad argument.

I think some deference is due, since it did take place in front of them.

Not as much deference as due to the Attorney General by the Court of Appeals.

As to the… I want to stress again on the issue of disregard, the Court of Appeals didn’t say the Board couldn’t apply that rule, but that, as we’ve gone into, that they only had to apply it in a manner that made sense, that was rational, that wasn’t arbitrary and capricious.

Lawrence H. Rudnick:

I have nothing else, unless there are other questions.

John Paul Stevens:

May I ask you a question about Jay against Boyd, which I hadn’t read before the argument and I’ve just read it, and the scope of the discretion in the case.

The analogy that the Court made in that case, which is quite interesting, is to the probation proceedings, which in 1955 were proceedings in which there was total discretion by the authority that had discretion to grant or revoke probation or parole.

Has anybody ever argued that, just as the law of parole has changed, that maybe the rules here also require the same kind of procedures?

Lawrence H. Rudnick:

I think that’s what we’re arguing, is there’s been an evolution in the practice of administrative law and there has been an evolution in this Court’s decisions.

John Paul Stevens:

If you make that argument, then you’re basically… it’s basically a procedural argument.

Lawrence H. Rudnick:

Yes, i think essentially–

John Paul Stevens:

And then what’s wrong with the procedure that the Attorney General did follow?

Because maybe you don’t like his reasons, but he did tell us what they were.

And maybe they’re pretty weak, but you can’t say it’s totally arbitrary to say somebody who gets extra time by litigating to get it is–

Lawrence H. Rudnick:

–We’re not arguing that that class of behavior can’t be sanctioned.

We’re not saying that the Attorney General can’t deny motions to reopen where frivolous appeals have gained the seven years.

All the Court of Appeals held here, and that’s what the Court of Appeals said… all the Court of Appeals said is this appeal, these appeals weren’t frivolous.

John Paul Stevens:

–But why can’t he say that the time that’s gained by appeals that we think are frivolous are enough?

Why can’t they define their own standard of frivolity, frivolousness, whatever the right word is?

Lawrence H. Rudnick:

I think in terms of expertise, this isn’t something that the agency was set up to decide.

They’re no set up to decide what are frivolous appeals.

That’s more of a judgment that courts make.

I think less deference is due a decider, an administrative agency, when they decide something that’s not within their expertise than something that’s within.

When the Board makes a decision as to what category of conduct raises peculiar problems under the immigration laws, that’s where deference should be high.

That’s what they’re set up to do.

They’re set up to be experts.

But where they say a petition for review to the Court of Appeals was frivolous, that’s not something within their expertise.

Thank you.

Warren E. Burger:

Anything further, Mr. Horowitz?

A couple points.

I think there’s a little bit of confusion here about exactly what’s been held.

The Government does not dispute, the Board did not dispute in its remand, that the seven year standard has been satisfied.

It doesn’t really matter whose fault the delay is, because this is not like a speedy trial case, where parts of the delay are being excluded.

We agree that they met the seven year standard.

What the Board held was that, because the standard was met only because they took these frivolous appeals, thereby bringing these automatic stay provisions into effect, the Board in its discretion was not going to exercise its discretion favorably towards the Respondents to reopen the deportation proceedings that had already been closed.

I think it’s important to remember that they were found deportable back in 1978.

Nothing that has happened in this case since then has suggested that that determination was in error at all.

With hindsight, it is clear that they should have been deported in December of 1978.

The Respondents have already gotten… even at the time that the Board ruled, they had gotten three and a half years of an additional windfall of being in this country, just because they filed these appeals and invoked the stay.

What the Board has said that, in addition to that windfall, we’re not also going to let you achieve eligibility for relief that would let you stay in this country permanently just because you filed these appeals.

If they do that, it’s going to create a tremendous incentive for everybody to file whatever kind of papers they can to delay things until they meet the statutory requirements.

If the Board takes the position that it did take here, then at least a person knows that by taking these sorts of dilatory tactics he’s not going to put himself in a position to create new equities that is going to give him relief to which he was not entitled.

And one more point about the Court of Appeals’ statement about the appeals not being frivolous.

I just don’t think the Court of Appeals disagreed with what the Board said about the merit of the appeals.

They said the appeals were not frivolous.

The only reason they gave is that they had enabled the Respondents to get relief, that is, that they enabled them to gum up the works for long enough that the seven years passed.

That’s not… in our judgment, that is not something that–

That doesn’t go to the merits.

–makes them not frivolous.

And the Board in fact… I’m sorry.

The Court of Appeals, if it didn’t think the appeals were frivolous, it should have ruled on them, because what they were asking for in the Court of Appeals was relief from deportation, not this discretionary relief.

John Paul Stevens:

Can I ask you just one quick question.

Do you think the Jay against Boyd case is good law, if it relies on a parole analogy and if the facts of that case were they could rely on ex parte evidence for their decision, which I wonder if it could be done by a parole board now?

Well, it isn’t good law under what the Attorney General has done.

You agree that you’ve provided for reopenings and you’ve provided for discretion and you think your discretion is reviewable.

Reviewable under a standard of abuse of discretion.

Byron R. White:

Under a closer standard than the Boyd case, though.

Well, I’m not sure.

I guess I don’t want to go on a limb with that.

I don’t recall that the standard there was very different.

Let me just say one more thing.

This was really not a procedural decision by the Eighth Circuit.

They didn’t complain that the Board didn’t give its reasons good enough.

They didn’t send this case back to the Board for a foolish statement of reasons, as to what the reason was for the Board’s decision.

They sent it back to hold a hearing and basically to grant the suspension relief.

John Paul Stevens:

That’s really what I was asking your opponent.

I wonder what your view is.

If you comply with all the procedures that are required for a fair hearing comparable to a parole proceeding, would you say you’ve done everything that would be reviewable, that the only thing that’s reviewable is procedural fairness?

Well, we’ve never taken that position.

I think if the Board gave as a statement of reasons something that the court could in good conscience say was something that was not within the contemplation of Congress and really contrary to the will of Congress, that–

John Paul Stevens:

We don’t like the color of your eyes.

Lawrence H. Rudnick:

–could be an abuse of discretion.

Yes, or the length of your name or something like that.

If there are no further questions.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until Monday next at 10:00.