IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ASSIBI ABUDU No. 86-1128 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Brief for the Petitioner The court of appeals held that the Board of Immigration Appeals (BIA) erred in denying respondent's motion to reopen deportation proceedings. The court concluded, contrary to the BIA, that respondent has made out a prima facie case for asylum (Pet. App. 11a). In reaching its decision, the court adopted two rules that must be applied in the context of motions to reopen. First, it held that the BIA's refusal to reopen because of an alien's failure to set out a prima facie case must be reversed by the reviewing court if that decision is not "correct" (id. at 7a). Second, it held that the BIA, in ruling on a motion to reopen, must draw all reasonable inferences in favor of the alien (id. at 9a-10a). In our opening brief, we explained (Gov't Br. 17, 22-24) that the court of appeals' decision cannot be reconciled with various decisions of this Court holding that the BIA's rulings on motions to reopen must be given substantial deference. See INS v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Pinpathya, 464 U.S. 183, 188 n.6 (1984); INS v. Jong Ha Wang, 450 U.S. 139, 143-144 n.5 (1981). Specifically, we maintained (Gov't Br. 21, 30-32) that the proper inquiry on review is not whether the BIA's decision is "correct" but simply whether it is reasoned and not arbitrary. We further contended (id. at 33-35) that the court's rule that the BIA must draw all reasonable inferences in favor of the alien improperly compels the BIA to grant reopening even in marginal or insubstantial cases. We explained (id. 35-43) that in the present case, the BIA properly denied reopening because it reasonably found that (1) respondent failed to establish a prima facie case for asylum or withholding of deportation and (2) he did not meet the regulatory requirements for reopening (see 8 C.F.R. 208.11) because he did not adequately explain his failure to seek asylum or withholding during the deportation hearing. 1. a. Respondent and the various amici /1/ offer no persuasive reason why the BIA should have granted reopening, and they all but ignore several of our principal contentions. Thus, they devote little attention to our argument (Gov't Br. 16, 35-40) that the BIA properly denied reopening on the ground that respondent did not adequately explain his failure to apply for asylum or withholding of deportation during the deportation proceeding, as required by the regulations. /2/ Indeed, respondent persists in erroneously claiming (Resp. Br. 9; Resp. Br. in Opp. Cert. 20) that the "sole question" decided by the BIA was whether respondent established a prima facie case of eligibility for asylum. /3/ Moreover, while respondent and one of the amici offer brief explanations for respondent's failure to seek asylum and withholding of deportation during the deportation hearing, those explanations are conflicting and, in any event, are irrelevant since they were not made to the BIA in the motion to reopen. /4/ The BIA's requirement that an alien seeking reopening to apply for asylum must provide a reasonable explanation of his failure to seek such relief during the deportation hearing serves the obvious function of ensuring that the motion to reopen is not a last-minute dilatory maneuver to avoid deportation. Because the BIA reasonably found that respondent did not comply with that requirement, reopening was properly denied. b. Respondent maintains (Resp. Br. 29-36) that the court of appeals was correct in holding that his motion to reopen alleged a prima facie case of eligibility for asylum. /5/ Nonetheless, his own analysis plainly demonstrates the reasonableness of the BIA's decision that reopening was not appropriate. Thus, respondent concedes (Resp. Br. 28-29) that at the time of the deportation hearing, the facts in his case were insufficient to establish a well-founded fear of persecution. Yet, he also concedes (Resp. Br. in Opp. Cert. 11-12) that his new evidence postdating the deportation proceeding -- the visit from the Ghanian official -- "was ambiguous; it could have been viewed as either benign, or threatening." /6/ These concessions, we submit, fatally undermine respondent's claim that the facts alleged in the motion compelled reopening for an evidentiary hearing. 2. a. Respondent and amici make little effort to defend the court of appeals' novel and unprecedented rule that the BIA's determination of whether a prima facie case was established is subject to de novo review. /7/ Although respondent (Resp. Br. 16) and AILA (AILA Br. 3, 22-23) express agreement with the court of appeals on that point, they cite no relevant authority in support of that position. Nor do they explain why the BIA's assessment of whether a motion to reopen presents a prima facie case should be given no deference whatsoever, particularly since the BIA, in weighing the evidence, is performing a congressionally-assigned task within its expertise. See Gov't Br. 25-26 (citing cases). /8/ The court's de novo review standard is particularly inappropriate since, as respondent and amici do not dispute, even in the context of a claim for asylum or withholding of deportation made during the deportation proceeding, the agency's decision is entitled to deference. See Gov't Br. 18-19 (citing cases); see also 8 U.S.C. 1105a(4). Under this Court's decisions in Jong Ha Wang, Phinpathya and Rios-Pineda, the agency should, of course, be given even greater deference in deciding whether the case of someone who has already had a deporation hearing -- and who is under an order of deportation -- should be reopened for further hearings. /9/ Indeed, as we noted (Gov't Br. 24-25 (citing cases)) -- and as respondent and amici do not dispute -- every circuit that has addressed the issue prior to the present case has held that the BIA's determination whether an alien has alleged a prima facie case for reopening is reviewed under a deferential abuse of discretion standard. /10/ b. Respondent and amici devote considerable attention to defending the court of appeals' unprecedented rule (Pet. App. 9a) that for purposes of deciding a motion to reopen, the BIA must draw all inferences in favor of the alien. Respondent suggests (Resp. Br. 18-19, 21) that because the BIA is performing only a limited screening function in ruling on motions to reopen, the court of appeals was correct in holding that the alien must be given every benefit of the doubt. But as we have explained (Gov't Br. 33), that argument cannot be reconciled with Jong Ha Wang, Phinpathya, and Rios-Pineda. Such a rule would force the BIA to grant reopening and order evidentiary hearings even in marginal or insubstantial cases. Reopening would thus become not an exceptional remedy in an unusual case but a common dilatory tactic by aliens facing imminent deportation. Respondent's position /11/ gives no consideration to the important interests of finality that are at stake in the context of a motion to reopen. As we noted (Gov't Br. 26-29, 33-35), a rule giving the benefit of the doubt to the alien seeking reopening finds no counterpart in other areas of administrative law /12/ or even in the criminal law. /13/ There is no valid basis for adoption of such a rule in the immigration context. Respondent and amici also make a fallback argument (Resp. Br. 24-28; AILA Br. 23-25; LCHR Br. 9-51; Centro Presente Br. 15-18) that even if the BIA is not required to draw all inferences in favor of the alien in every context, it should be required to do so in the context of motions to reopen seeking asylum or withholding of deportation. According to respondent (Resp. Br. 27), applications for asylum and withholding of deportation are unique because the alien's life or liberty may be at stake, and aliens requesting reopening to seek such relief should therefore be given the benefit of the doubt. That argument lacks merit. As we have noted (Gov't Br. 25), the procedures for reopening deportation proceedings apply to all deportation proceedings, not merely proceedings relating to applications for asylum or withholding of deportation. Motions to reopen to apply for, adjustment of status or suspension of deportation, for example, are made pursuant to the same regulatory provisions (8 C.F.R. 3.2, 3.8(a)). /14/ There is no legal basis for applying the BIA's reopening provisions in different ways depending on the relief being sought by the alien. Indeed, even the court below did not attempt to justify its holding that all doubts should be resolved in the alien's favor by suggesting that the rule should apply solely to motions to reopen to apply for asylum or withholding of deportation. While it is true that this Court's statements concerning motions to reopen in Jong Ha Wang, Phinpathya, and Rios-Pineda arose in the context of suspension of deportation, those statements were not limited to motions seeking that particular relief. See Jong Ha Wang, 450 U.S. at 143 n.5. Indeed, the circuits have repeatedly applied the holdings of those cases to motions to reopen to seek asylum or withholding of deportation (Gov't Br. 24-25 (citing cases)). The interests of finality and the risk of frivolous motions exist regardless of the relief at stake. /15/ In support of his claim, respondent relies upon the Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979) (Asylum Handbook) by the Office of the United Nations High Commissioner for Refugees. According to respondent, that authority "teaches that doubts should be resolved in favor of a alien in proving his case for refugee status" (Resp. Br. 26-27; see also LCHR Br. 30-44; Centro Presente Br. 17). /16/ Respondent's argument lacks merit for three reasons. First, the statements in the Asylum Handbook are contained in a discussion of procedures applicable at hearings (see id. at 45-49; see also LCHR Br. 35 n.9). Those statements are not necessarily relevant to post-hearing motions, since the policies applicable once an alien has had a deportation hearing and is under an order of deportation are obviously very different. See generally Rios-Pineda, 471 U.S. at 450 (noting that an alien "illegally present in the United States who wishes to remain * * * has a substantial incentive to prolong litigation in order to delay physical deportation for as long as possible"). Second, and related to the first, the Asylum Handbook states (at 45) that "(i)t is * * * left to each Contracting State to establish the procedure that it considers most appropriate, having regard to its particular constitutional and administrative structure." As noted, in this country it is well established that someone who seeks to reopen a proceeding -- whether criminal or civil -- bears a heavy burden in overcoming the strong interest in finality. The Asylum Handbook recognizes that such attributes of a country's legal system cannot be disregarded. Finally, the Asylum Handbook, while useful for guidance, has neither "the force of law (nor) in any way binds the (BIA) with reference to the asylum provisions of" United States law. INS v. Cardoza-Fonseca, No. 85-782 (Mar. 9 1987), slip op. 17 n.22; see also Asylum Handbook 1 (ii). Respondent's argument that the position taken in the Asylum Handbook should be adopted in the context of motions to reopen in ultimately one of policy that should be addressed to Congress, not the courts. /17/ 3. Respondent contends for the first time that the BIA applied an incorrect legal standard in determining whether he established a prima facie case of eligibility for asylum (Resp. Br. 37-39; see also AILA Br. 7-9). /18/ However, the BIA's opinion (Pet. App. 19a) demonstrates application of the correct standard. In ruling on respondent's asylum claim, the BIA explicitly relied upon the Ninth Circuit's decision in Cardoza-Fonseca v. INS, 767 F.2d 1448 (1985), which was later affirmed by this Court (No. 85-782 (Mar. 9. 1987)). Having cited the correct legal authority governing asylum, the BIA was "not required to assess the entire evidence twice, once under the heading of clear probability and a second time under the heading of well-founded fear." Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986). Even the court below did not suggest that the BIA applied the wrong legal test in assessing respondent's showing of eligibility for asylum. Thus, there is no basis for respondent's belated claim that the BIA misapplied the asylum standard. Moreover, to the extent that the claim seeks to modify the court of appeals' judgment to respondent's advantage, it is foreclosed in this Court since respondent filed no cross-petition under this Court's Rule 19.5. 4. Amici Centro Presente, et al., contend (Centro Presente Br. 6-9) that because withholding of deportation is mandatory if an alien qualifies, /19/ the BIA cannot deny reopening if the alien establishes a prima facie case for such relief, even if he fails to meet the regulatory requirements for reopening. /20/ That argument is erroneous. If an alien seeking withholding cannot explain his failure to seek such relief earlier and can cite no new facts, the BIA is fully justified in concluding that his motion is simply a dilatory tactic. Even in criminal cases involving claims of newly discovered evidence, a defendant's motion will be denied unless he can show that (1) the evidence was not known at the time of trial, (2) the evidence is material, (3) it would probably produce an acquittal, and (4) its belated discovery was not due to a lack of diligence on the part of the defendant. See, e.g., United States v. Williams, 816 F.2d 1527, 1530 (11th Cir. 1987). /21/ If Centro Presente were correct, aliens filing for reopening -- a procedure that is entirely a creation of the Board's regulations -- could ignore with impunity the various regulatory requirements established by the BIA. For example, they would have no obligation to submit affidavits or other evidentiary material or to identify their newly discovered evidence. Cf. Jong Ha Wang, 450 U.S. at 143 (holding that court of appeals erred in ordering reopening despite alien's failure to comply with regulatory requirements). Moreover, the consequences of such a rule would be chaotic. Since an alien seeking withholding by way of a motion to reopen would not be required to allege new facts in order to get an evidentiary hearing, he would have no incentive to seek withholding during the deportation proceeding. It would be in his interest simply to wait until deportation is imminent, thereby guaranteeing him a further delay while a new hearing takes place. Since Congress did not provide for reopening, even in the context of withholding of deportation, it could not have intended such a result. In any event, the issue raised by Centro Presente is totally irrelevant in this case. The court of appeals, even when reviewing the record de novo and giving respondent the benefit of the doubt, could not conclude that he had alleged a prima facie case for this case does not raise the question whether respondent should be granted reopening to seek withholding notwithstanding his failure to comply with the regulatory requirements. For the reasons stated above and in our opening brief, the judgment of the court of appeals should be reversed. /22/ Respectfully submitted. CHARLES FRIED Solicitor General NOVEMBER 1987 /1/ Amicus Briefs were filed by the American Immigration Lawyers Association ("AILA"), the Lawyers Committee for Human Rights ("LCHR"), and the Centro Presente, Inc., et al. ("Centro Presente"). /2/ In our view, since the BIA properly denied relief on that ground, it was not required even to address the question whether respondent established a prima facie case for relief. Cf. Rios-Pineda, 471 U.S. at 449; INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976). /3/ The court of appeals similarly mischaracterized the BIA's opinion; it indicated (Pet. App. 6a) that the "sole issue is whether (respondent) presented a prima facie case for reopening." /4/ Respondent indicates (Resp. Br. 28-29) that until the visit from the Ghanian official, he did not have a sufficient basis for seeking asylum. In his motion to reopen (2 R. 17, 29-30), he also emphasized that visit. However, in that motion he did not suggest that his other evidence had previously been inadequate. To the contrary, he contended (2 R. 18-19) that the Immigration Judge (IJ) who presided at the deportation hearing erred in failing to ascertain whether there was a factual basis for a claim of asylum or withholding of deportation. Amicus AILA offers a different explanation -- that respondent's failure to seek relief at the deportation hearing may have stemmed from erroneous legal advice (AILA Br. 18-19). Again, however, no such explanation was offered to the BIA. Even today, respondent himself makes no such claim. There is likewise no merit in AILA's suggestion (AILA Br. 25-27) that the issue of the BIA's denial of reopening because of respondent's failure to comply with 8 C.F.R. 208.11 is not ripe for review. According to AILA (AILA Br. 25-26), it is unclear whether the BIA would have denied reopening on that ground had it believed that respondent set forth a prima facie case of eligibility for asylum. In fact, however, the BIA made clear (Pet. App. 18a (citing Jong Ha Wang)) that respondent's failure to meet the regulatory requirements was a separate and independent basis for denying reopening. /5/ He does not argue that his motion alleged a prima facie case of entitlement to withholding of deportation; thus, he apparently concedes that the BIA properly decided that issue. Even the court of appeals, under a standard drawing all inferences in favor of the alien, stated that it was "not clear" whether respondent made the requisite showing for withholding (Pet. App. 11a). /6/ Respondent notes (Resp. Br. 34) that the Ghanian official did not hold a high position in that government. Nonetheless, he speculates that the visitor was sent by Flight Lt. Rawlings, and he states that a low-level official was selected precisely to avoid suspicion. But it is equally plausible, if not more so, that the visitor was not sent by Rawlings but instead was paying a purely social visit to an old friend (see Pet. App. 17a). /7/ Indeed, amici Centro Presente state (Centro Presente Br. 12 n.5 (emphasis added)) that they "do not argue or imply that the court should substitute its weighing of the evidence and findings of the significance of newly presented evidence for that of the Board." /8/ See also Rios-Pineda, 471 U.S. at 452 (citations omitted) ("In this government of separated powers, it is not for the judiciary to usurp Congress' grant of authority to the Attorney General by applying what approximates de novo appellate review"); INS v. Miranda, 459 U.S. 14, 19 (1982) (citations omitted) (noting that because "the INS is the agency primarily charged by Congress to implement the public policy underlying (the immigration) laws(,) * * * (a)ppropriate deference must be accorded its decisions"); 8 U.S.C. 1158(a) (alien may be granted asylum "in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee"); 8 U.S.C. 1253(h) (alien shall not be deported to a country "if the Attorney General determines" that the alien's life or freedom would be threatened in that country on various grounds). /9/ Indeed, the court below, respondent conceded that the BIA has discretion in ruling on motions to reopen and that Rios-Pineda is the governing authority (Abudu C.A. Br. 25). /10/ The court below (Pet. App. 7a) purported to rely on a prior Ninth Circuit decision for its de novo review standard (Ghadessi v. INS, 797 F.2d 804, 806 (1986)), but it failed to recognize that the majority of judges in that case rejected that standard (see id. at 809 (Jameson, D.J., concurring); id. at 810 (Poole, J., dissenting)). /11/ While respondent strongly defends this rule announced by the court of appeals, he did not argue below for such a rule. /12/ This Court recently stated, in the context of motions to reopen Interstate Commerce Commission proceedings, that even if a party alleges new evidence, the denial of reopening will not be overturned in the absence of " 'the clearest abuse of discretion.'" ICC v. Brotherhood of Locomotive Engineers, No. 85-792 (June 8, 1987), slip op. 6-7 (emphasis added; citation omitted). /13/ As we noted (Gov't Br. 28), a criminal defendant seeking a new trial because of newly discovered evidence faces an extremely difficult burden, and such motions are disfavored and viewed with caution. Respondent claims (Resp. Br. 21 n.6) that motions for new trials in criminal cases are different from motions to reopen because the latter "are not generally to retry the issue of deportability; they are to seek affirmative relief from that Order." And AILA argues (AILA Br. 17) that motions for new trials, unlike motions to reopen, are concerned with past events. Neither argument is persuasive. A motion to reopen may attack the finding of deportability in addition to seeking relief from deportation, and it frequently reasserts arguments made during deportation proceedings by providing evidence that did not previously exist or was not previously available. In any event, even if the distinctions drawn by respondent and AILA were factually correct, there is no reason why the courts should give greater deference to aliens seeking to avoid deportation on the ground of newly discovered evidence than they give to criminal defendants seeking a new trial on that ground. If anything, a criminal defendant who alleges that he has uncovered evidence showing his innocence -- and who thus may be wrongfully incarcerated -- should be given greater deference than an alien seeking reopening, who ordinarily is in a position to seek such relief only because he has remained in this country illegally. /14/ As we explained (Gov't Br. 25 n.17), the requirements for reopening for the purpose of applying for asylum are, if anything, more exacting, since an alien must also comply with 8 C.F.R. 208.11. /15/ Because of those interests, even motions by criminal defendants claiming newly discovered evidence are looked upon with disfavor (see Gov't Br. 28), regardless of whether the particular defendant is incarcerated. /16/ The Asylum Handbook provides (at 47) that "there may * * * be statements (by the applicant for asylum) that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt." The Handbook also makes clear, however, that the burden of proof is on the applicant (ibid.). /17/ Respondent and amici make the further argument (Resp. Br. 27; LCHR Br. 20-23) that it is often difficult for persons seeking asylum to obtain proof of persecution. But that argument provides no logical support for their position that reopening should be liberally granted. If an alien cannot muster evidence in support of his motion to reopen, there is no reason to believe that he would be able to do so at an evidentiary hearing. Here, for example, the deportation hearing occurred in 1982. And the "new evidence" cited by respondent -- the visit from the Ghanian official -- became known in the Spring of 1984, yet respondent did not apply for reopening until February 1985. Gov't Br. 6, 37 n.29. If, after all that time, respondent could not obtain evidence to make a showing sufficient to succeed on the merits, there is no warrant to postpone deportation further. There is likewise no merit in AILA's claim (AILA Br. 23-24) that unless aliens are given the benefit of the doubt, the reopening procedures would conflict with the requirement of 8 U.S.C. 1158(a) that the Attorney General establish procedures for aliens, "irrespective of * * * status," to apply for asylum. The Attorney General's procedure for an alien to apply for asylum after being found deportable is the motion to reopen. Nothing in the statute suggests that the Attorney General, in implementing Section 1158(a), must adopt procedures that give the benefit of the doubt to the alien. /18/ This argument is inappropriate since respondent specifically conceded below that he had "no quarrel with the principles of the law that the BIA applied in denying his Motion to Reopen" (Abudu C.A. Br. 28). Moreover, we specifically noted in our brief below that the BIA correctly applied a lower standard for asylum than for withholding of deportation (see Gov't C.A. Br. 21 n.16), and respondent, in his reply brief, expressed no disagreement with that statement. /19/ Under 8 U.S.C. 1253(h)(1), the Attorney General "shall not" deport an alien to a country if he determines that the alien's life or freedom would be threatened. The statute contains four categories of aliens to whom Section 1253(h)(1) does not apply: (1) those who committed or assisted in acts or persecution against an individual on account of race, religion, or other specified reasons; (2) those convicted of "a particularly serious" crime and who therefore "constitute() a danger to the community of the United States;" (3) those believed to have committed a "serious nonpolitical crime outside the United States" prior to their arrival here; and (4) those who are reasonably believed to pose "a danger to the security of the United States." 8 U.S.C. 1253(h)(2). /20/ Centro Presente's argument is addressed solely to withholding of deportation. It obviously would not apply to asylum, which is discretionary even if the alien meets the eligibility requirements. See Cardoza-Fonseca, slip op. 19, 21, 28. /21/ Indeed, the courts have denied motions in criminal cases alleging newly discovered evidence on the ground that the defendants, after discovering the evidence, did not seek relief immediately but waited several months before filing their motions. See, e.g., United States v. Ochs, 548 F. Supp. 502, 512-513 (S.D.N.Y. 1982), aff'd without opinion, 742 F.2d 1444 (2d Cir. 1983), cert. denied, 464 U.S. 1073 (1984); United States v. DiPaolo, 659 F. Supp. 120, 121 (W.D.N.Y. 1987). Here, as noted (see note 17, supra), the new event relied upon by respondent occurred in the Spring of 1984, yet he did not file his motion to reopen until February 1985. /22/ Since the filing of our opening brief, there have been developments that we wish to bring to the Court's attention. On August 28, 1987, the INS published a proposed rule that would place authority for asylum and withholding of deportation decisions in a corps of specially trained INS officers, who would interview applicants in a nonadversarial proceeding (52 Fed. Reg. 32552 (1987)). Under the proposed rule, the INS officer "may" reopen an asylum or withholding of deportation proceeding "for proper cause." In particular, he "shall grant the motion only if the evidence offered is material and was not available or could not have been discovered or presented at the original proceeding and the applicant has made a prima facie showing of eligibility * * *" (id. at 32558). The INS has decided not to go forward with the August 28th proposed rule in its present form, and it is currently considering publication of a revised proposed regulation to provide ways of improving the system for adjudicating asylum cases. The timing and precise content of such a proposal have not yet been determined.