IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ASSIBI ABUDU No. 86-1128 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit The Solicitor General, on behalf of the Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-11a) is reported at 802 F.2d 1096. The opinion of the Board of Immigration Appeals (BIA) denying respondent's motion to reopen deportation proceedings (App., infra, 13a-20a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 12a) was entered on October 14, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED 8 U.S.C. 1158(a) provides: The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title. 8 U.S.C. 1253(h) provides in pertinent part: (1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(19) of this title) to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. 3.2 provides in pertinent part: Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted * * * unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing. * * * 8 C.F.R. 3.8(a) provides in pertinent part: Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material. * * * 8 C.F.R. 208.11 provides in pertinent part: (A motion to reopen to request asylum) must reasonably explain the failure to request asylum prior to the completion of the exclusion or deportation proceeding. If the alien fails to do so, the asylum claim shall be considered frivolous, absent any evidence to the contrary. Nothing in this part, however, shall be construed to prevent an alien from requesting relief under section 243(h) during exclusion or deportation proceedings. QUESTIONS PRESENTED 1. Whether a decision by the Board of Immigration Appeals (BIA) denying an alien's motion to reopen deportation proceedings on the ground that the alien did not make a prima facie showing of entitlement to relief must be affirmed it if is plausible and not arbitrary. 2. Whether the BIA, in ruling on an alien's motion to reopen deportation proceedings, is required to draw all reasonable inferences in favor of the alien. STATEMENT 1. Respondent, a licensed physician, is a native and citizen of Ghana. He entered the United States on a student visa in July 1973, with authority to remain here until February 1976. On April 7, 1981, he pleaded guilty in state court to various drug-related offenses. /1/ Based on his criminal activity, the Immigration and Naturalization Service (INS) issued an order to show cause charging that respondent was deportable for violating the drug laws (see 8 U.S.C. 1251(a)(11)). The INS later supplemented the order to show cause to charge respondent with deportability for staying beyond the period authorized by his visa (see 8 U.S.C. 1251(a)(2)). App., infra, 2a, 14a, 22a. On November 3, 1981, the INS commenced deportation proceedings against respondent. At a hearing on November 10, 1981, respondent indicated that he believed that his life would be threatened in Ghana and that, accordingly, he intended to apply for asylum (8 U.S.C. 1158(a)) and withholding of deportation (8 U.S.C. 1253(h)). The immigration judge (IJ) continued the proceedings to give respondent a chance to file such an application. App., infra, 2a, 15a-16a. On January 11, 1982, respondent denied deportability based on the drug offenses but conceded deportability on the overstay of visa charge. He also sought adjustment of status under 8 U.S.C. 1255(a) based on his marriage to a United States citizen. App., infra, 2a, 14a. On April 29, 1982, respondent's attorney advised the IJ that his client would not be seeking asylum or withholding of deportation but would be seeking only adjustment of status. /2/ He maintained that position even after being advised by the IJ that an application for adjustment of status appeared to be meritless in light of his narcotics conviction. App., infra, 2a, 16a; 1 R. 55. Respondent's deportation hearing was held on July 1, 1982. The IJ concluded that respondent was deportable under 8 U.S.C. 1251(a)(11) because of his criminal activity. He further concluded that respondent's criminal record constituted a non-waivable ground of excludability (see 8 U.S.C. 1182(a)(23)), thereby precluding adjustment of status (see 8 U.S.C. 1255(a)(2)). App., infra, 3a, 14a, 25a-28a. The BIA affirmed the IJ's decision (id. at 3a, 14a, 21a-24a). 2. Respondent subsequently appealed the BIA's ruling to the Ninth Circuit. On February 1, 1985, while that appeal was pending, respondent filed a motion with the BIA, pursuant to 8 C.F.R. 3.2, seeking to reopen his deportation proceedings in order to apply for asylum and withholding of deportation. Respondent claimed that his life and freedom would be threatened in Ghana by the regime of Flight Lt. Jerry Rawlings. According to the affidavits and other materials filed in support of the motion to reopen, respondent was closely associated with various enemies of the Ghanian regime. In particular, his brother's house in Ghana had previously been surrounded by government troops; his brother escaped and remains in exile. In addition, a lifelong fried of respondent's was declared by Rawlings to be the number one enemy of the government. App., infra, 3a-4a, 15a. Respondent admitted that most of the evidence in support of his motion to reopen was available at the time of the deportation proceeding (App., infra, 16a). The only fact that post-dated that proceeding concerned a visit to respondent in the United States by an official of the Ghanian regime (id. at 16a-17a). Respondent indicated in his affidavit that he was contacted by the official "'ostensibly for a friendly visit because (they) had known each other for many years'" (id. at 16a). Respondent claimed, however, that the conversation had "ominous overtones" (id. at 16a-17a). He noted that the official inquired about the whereabouts of respondent's brother and other enemies of the Ghanian regime. In addition, the visitor sought to convince respondent to return to Ghana. Respondent concluded that he was not being sought in Ghana for his skills as a physician but was wanted so that he could betray the whereabouts of his borther and other opponents of the Rawlings government. Respondent feared that because he did not return to Ghana as requested, he was "'listed as a member of the conspiracy,' planning to stage a coup." Id. at 17a. The BIA denied respondent's motion to reopen (App., infra, 13a-20a). It found that respondent had not adequately explained his failure to apply for asylum during his deportation hearing and therefore did not fulfill the regulatory requirements for reopening (id. at 18a). The BIA noted (id. at 17a) that, in seeking reopening, respondent relied almost entirely upon facts that existed at the time of the deportation hearing. /3/ Moreover, the one new fact presented -- the visit from the Ghanian official -- was, in the BIA's view, of questionable significance. As the BIA noted, the government official who visited him "was admittedly a long-time friend of the respondent's who in fact may have been paying a purely social visit" (ibid.). The BIA therefore was "not persuaded that the visit * * * was by itself so alarming that it explains the * * * failure to apply for asylum at the (deportation) hearing" (ibid.). The BIA also emphasized the lack of specificity in respondent's purported grounds for fearing persecution. It noted (App., infra, 20a) that his "mere assertions of possible threats are lacking in specific, objective detail and do not constitute a prima facie showing of eligibility for either asylum or withholding of deportation." In addition, there was no adequate explanation concerning "how his relationships with (purported enemies of the Ghanian regime) would result in persecution to himself should he return to his native land" (ibid.). Moreover, his assertions that the present regime would consider him an "advance man" for a coup and would attempt to elicit information from him by force were, in the BIA's judgment, "speculative at best" (ibid.). 3. Respondent thereafter filed a petition for review in the Ninth Circuit. The Ninth Circuit reversed the BIA's denial of reopening and remanded the case for an evidentiary hearing (App., infra, 1a-11a). /4/ The court first discussed the standards that it believed should be applied in reviewing the BIA's decision. The court indicated (id. at 6a) that the Supreme Court, in INS v. Rios-Pineda, 471 U.S. 444 (1985), had stated that the BIA has "wide discretion" in ruling on motions to reopen. The court of appeals then added: "Here, however, the sole issue is whether (respondent) presented a prima facie case for reopening" (App., infra, 6a). Accordingly, reasoned the court, it was "not faced with the exercise of the Board's administrative discretion" (ibid. (emphasis in original)). Rather, the issue was whether the BIA's determination was "correct" and "in accordance with law" (id. at 7a). "(A)n agency," it stated, "will be held to have abused its discretion when it errs in determining what constitutes a prima facie case" (ibid.). The court also summarized its view of the BIA's role in ruling on motions to reopen. According to the court, "for purposes of the limited screening function of motions to reopen," the BIA "must draw all reasonable inferences in favor of the alien unless the evidence presented is 'inherently unbelievable'" (App., infra, 9a-10a (citation omitted)). The court derived this principle by analogizing a motion to reopen to a motion for summary judgment (ibid.). Applying the foregoing standards, the court overturned the BIA's denial of the motion to reopen. Respondent, it held, had presented "new evidence" of an "objective and specific" nature making out a prima facie case of a well-founded fear of persecution (App., infra, 11a). The visit from the Ghanian official "could reasonably have placed (respondent) in fear for his life" (ibid.). Furthermore, noted the court, respondent's "earlier aborted claims do not negate the relevance of this new development" (ibid.). The court acknowledged that the visit "could be viewed as benign," but stated that, because it "could also be viewed, as (respondent) suggests, as threatening," and because respondent was entitled to have all inferences drawn in his favor, the new fact provided sufficient evidence to entitle respondent to reopening for a hearing on his asylum claim (ibid.). /5/ REASONS FOR GRANTING THE PETITION The questions presented in this case are essentially the same as those presented in INS v. Fazelihokmabad, petition for cert. pending, No. 86-1008. /6/ Both cases involve the extent to which a reviewing court is required to defer to the BIA's ruling on a motion to reopen deportation proceedings. And in both cases, the issue is whether the Ninth Circuit correctly applied the principles enunciated by this Court in INS v. Rios-Pineda; INS v. Jong Ha Wang, 450 U.S. 139 (1981); and INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984). In our petition in Faxelihokmabad, we note that this Court has repeatedly underscored the BIA's broad discretion in ruling on motions to reopen deportation proceedings (86-1008 Pet. 11-12). A motion to reopen, we explain, is not provided for by statute but is purely a product of regulation (see 8 C.F.R. 3.2, 3.8(a)) to enable the BIA to reevaluate its prior disposition in cases where significant developments have occurred subsequent to the hearing and decision therein (86-1008 Pet. 10). We further point out that the regulation governing reopening is framed in the negative, and therefore does not affirmatively require the BIA to reopen the proceedings under any particular circumstance (ibid.). For those reasons, we argue, the role of the reviewing court is not to determine whether the BIA's decision is correct; rather, the BIA's denial of a motion to reopen must be affirmed if the decision is plausible or rational, does not depart from established policies, and does not rest on an impermissible basis such as invidious class-based discrimination (id. at 20). In the present case, as in Fazelihokmabad, the Ninth Circuit improperly engaged in basically de novo review of the BIA's denial of a motion to reopen. The court in the present case explicitly held that when the BIA denies a motion to reopen on the ground that the alien has not established a prima facie case, the ruling must be reversed if, in the court's view, it is not "correct" (App., infra, 7a). That holding directly conflicts with this Court's decisions in Rios-Pineda, Jong Ha Wang, and Phinpathya concerning the BIA's broad discretion in ruling on a motion to reopen. Moreover, on the basis of a wholly inappropriate analogy to summary judgment (id. at 9a-10a), the court has further restricted the BIA's discretion by requiring the BIA to draw all inferences in the alien's favor. /7/ The court in the present case ordered the immigration authorities to reopen deportation proceedings and to conduct an evidentiary hearing even though it acknowledged that the one new fact cited by respondent in support of his motion to reopen "could be viewed as benign" (id. at 11a). If the BIA is required to grant reopening even in those circumstances -- and in those present in Fazelihokmabad -- then it is difficult to envision many cases in which the denial of a motion to reopen would be proper. Because of the similarity in issues involved, the Court's disposition of the petition in Fazelihokmabad is likely to control the disposition of the present case. Accordingly, it would be appropriate for the Court to hold this case pending its disposition of Fazelihokmabad. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's disposition of the petition in INS v. Fazelihokmabad, No. 86-1008. Respectfully submitted. CHARLES FRIED Solicitor General JANUARY 1987 /1/ The court (App., infra, 2a) and the BIA (id. at 14a) indicated that respondent pleaded guilty to one offense, but the record reveals that he entered guilty pleas to three separate charges: obtaining or attempting to obtain a controlled substance (Demerol) by fraud on two occasions (November 10, 1979, and November 14, 1979), and obtaining or attempting to obtain a controlled substance (Dilaudid) by fraud on December 26, 1979 (id. at 22a, 26a; 1 R. 65-66, 78-80) ("1 R." refers to the administrative record of the deportation proceeding; "2 R." refers to the administrative record of the motion to reopen). Because of his convictions, respondent appears ineligible for legalization under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986), even though he entered this country before January 1, 1982. See Section 245A(a)(4)(B) and (d)(2)(B)(ii)(III) (added to 8 U.S.C. by Pub. L. No. 99-603, Section 201(a)). /2/ In November 1981, when respondent expressed his intent to apply for asylum, Ghana's present ruler, Flight Lt. Jerry Rawlings, was temporarily out of power. By April 1982, when respondent abandoned his asylum claim, Rawlings had returned to power. See 2 R. 25-26, 33. /3/ The BIA also noted the incongruous fact that Rawlings was not in power on the one instance during the deportation proceedings in which respondent expressed an interest in applying for asylum (App., infra, 16a n.1). See note 2, supra. /4/ The court affirmed the BIA's earlier holding that respondent was deportable because of his criminal record (App., infra, 4a-6a). That issue had been consolidated, for purposes of appeal, with the issue involving the BIA's denial of respondent's motion to reopen. /5/ The court stated that "it is not clear" that respondent met the higher standard of proof necessary for withholding of deportation, but it ordered the BIA to consider both his withholding and his asylum claims on remand because "the relevant evidence will be identical on both claims" (App., infra, 11a). This Court now has before it the question whether the standard for asylum differs from that required for withholding of deportation. INS v. Cardoza-Fonseca, No. 85-782 (argued Oct. 7, 1986). /6/ We are providing respondent with a copy of our petition in Fazelihokmabad. /7/ The Ninth Circuit's reliance on summary judgment law is erroneous for two reasons. First, when the analogy is properly applied, the inevitable conclusion is that all inferences should be drawn against the alien, the moving party. As this Court has noted, "(o)n summary judgment the inferences to be drawn from the underlying facts contained in (the moving party's) materials must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (emphasis added). Second, and in any event, a summary judgment motion is not meaningfully analogous to a motion to reopen. A motion for summary judgment seeks to terminate an ongoing judicial proceeding, whereas a motion to reopen seeks to reinstitute a completed proceeding. A motion to reopen is in fact more analogous to a motion for a new trial in a criminal case on the ground of newly discovered evidence. In a motion for a new trial, the moving party must come forward with new evidence that could not reasonably have been discovered earlier, and such evidence must be so compelling that it would probably produce an acquittal. See, e.g., United States v. Sutton, 767 F.2d 726, 728 (10th Cir. 1985). An alien seeking to reopen his deportation proceeding must likewise come forward with material new evidence that could not have been discovered or presented at the original hearing. See 8 C.F.R. 3.2, 3.8, 208.11. Furthermore, both types of motions are not favored and should be granted only with great caution. Sutton, 767 F.2d at 728; Jong Ha Wang, 450 U.S. at 143-144 n.5. By analogy to a motion for a new trial, the BIA would not be required to draw inferences in the alien's favor, but rather would have authority to restrict opening to cases in which the only inference -- or at least the most compelling inference -- to be drawn from the alien's new evidence is probable entitlement to the underlying relief being sought. Appendix