Immigration and Naturalization Service v. Abudu, 86-1128

Decision Date01 March 1988
Docket NumberNo. 86-1128,86-1128
Citation108 S.Ct. 904,99 L.Ed.2d 90,485 U.S. 94
PartiesIMMIGRATION AND NATURALIZATION SERVICE, Petitioner v. Assibi ABUDU
CourtU.S. Supreme Court
Syllabus

Respondent, a native and citizen of Ghana, overstayed his visa. After he pleaded guilty in 1981 to drug charges, deportation proceedings were initiated, at which he expressly declined to seek asylum as a refugee. In 1982, he was ordered deported, and in 1984, the Board of Immigration Appeals (BIA) dismissed his appeal. In 1985, while his petition for review in the Court of Appeals was pending, respondent filed a motion with the BIA requesting a reopening of his deportation proceeding to enable him to apply for asylum and a withholding of deportation. He claimed that he had a well-founded fear that if he was returned to Ghana his life and freedom would be threatened by the government, that had seized power in 1981. Moreover, in 1984, he had received a surprise visit from a former acquaintance who had become a Ghana government official and who, respondent believed, was attempting to entice him to return in order to force him to disclose the whereabouts of his brother and other government enemies. The BIA denied respondent's motion both on the ground that he had failed to make out a prima facie case of eligibility for asylum and on the alternative ground that he had failed to explain reasonably his decision not to request asylum in the first instance. The BIA noted that all of the facts set forth in the motion had been available to respondent at the time of the deportation hearing, except for the 1984 visit, which may have been in fact a purely social visit. The Court of Appeals consolidated respondent's petitions for review and affirmed the deportation order, but reversed the order denying the motion to reopen and remanded for further proceedings. Stating that the sole issue was whether respondent had made a prima facie case for reopening, the court ruled that the appropriate standard of judicial review was the strict standard that would be applied when passing on a motion for summary judgment, rather than an abuse-of-discretion standard.

Held:

1. Regardless of what may be the appropriate standard of judicial review when the BIA holds that the movant for reopening deportation proceedings has not established a prima facie case for the underlying relief sought (an issue not decided here), the abuse-of-discretion standard of review is appropriate when the BIA's denial of a motion to reopen is based on its finding that the movant has not introduced previously unavailable, material evidence or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially. The reasons why motions to reopen are disfavored in deportation proceedings are comparable to those that apply to petitions for rehearing and to motions for new trials on the basis of newly discovered evidence—particularly the strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases. The appropriate analogy is not a motion for summary judgment but, instead, a motion for a new trial in a criminal case on the basis of newly discovered evidence, as to which the moving party bears a heavy burden. Pp. 104—110.

2. If respondent had made a timely application for asylum, supported by the factual allegations and exhibits set forth in his motion to reopen, the Immigration Judge would have been required to grant him an evidentiary hearing. However, an alien who has already been found deportable has a much heavier burden when he first advances his request for asylum in a motion to reopen. The BIA did not abuse its discretion when it held that respondent had not reasonably explained his failure to apply for asylum prior to the completion of the initial deportation proceeding. Pp. 110 111.

802 F.2d 1096 (CA 9 1986), reversed.

STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except KENNEDY, J., who took no part in the consideration or decision of the case.

Robert H. Klonoff, for petitioner.

Dorothy A. Harper, Los Angeles, Cal., for respondent.

Justice STEVENS delivered the opinion of the Court.

Regulations promulgated by the Attorney General authorize deportable aliens to file motions to reopen their deportation proceedings to request asylum on the basis of newly discovered evidence. Denials of such motions are subject to judicial review in the United States courts of appeals. The question in this case is whether those courts should review such Board of Immigration Appeals (BIA) denials under an abuse-of-discretion standard, as petitioner contends, or under the strict standard that would be applied when passing on a motion for summary judgment, as the Court of Appeals held. 802 F.2d 1096 (CA9 1986). Consistently with our prior cases confirming the BIA's broad discretion in considering motions to reopen, we conclude that the abuse-of-discretion standard applies and therefore reverse the judgment of the Court of Appeals.

I

Respondent, a native and citizen of Ghana, first entered the United States in 1965 as a student. While attending medical school in 1973, he spent his summer vacation in Ghana, and then reentered the United States on a student visa that authorized him to remain until 1976. After becoming a licensed physician, he married an American citizen and overstayed his visa. In 1981, he pleaded guilty to charges of attempting to obtain narcotic drugs (Demerol) by fraud. In due course, deportation proceedings were initiated, and respondent designated England as the country of deportation if necessary and expressly declined to seek asylum as a refugee. On July 1, 1982, the Immigration Judge ordered him deported,1 and on August 14, 1984, the BIA dismissed his appeal.

Respondent filed a petition for review in the Court of Appeals for the Ninth Circuit. While that petition was pending, on February 1, 1985, respondent filed a motion with the BIA requesting a reopening of his deportation proceeding to enable him to apply for asylum and a withholding of deportation. In that motion, which was supported by affidavits and other exhibits, respondent claimed that he had a well-founded fear that if England did not accept him and he was returned to Ghana, his life and freedom would be threatened by the regime in power. His fear was based largely on the facts that after the current government seized power in 1981, it had carried out a systematic campaign of persecution against its political enemies and that respondent's brother and certain close friends were among the targets of that campaign. Moreover, in 1984, respondent had received an unsolicited and surprise visit from a former acquaintance who had become a high official in the Ghana government. The visitor invited respondent to return to Ghana, ostensibly because qualified physicians are in short supply, but respondent concluded that his visitor actually wanted to entice him to return in order to force him to disclose the whereabouts of his brother and other enemies of the government.

The BIA first stated the standard for granting motions to reopen deportation proceedings in cases such as this:

"A motion to reopen deportation proceedings for the purpose of applying for asylum or withholding of deportation will only be granted where prima facie eligibility for such relief has been established and where the alien has reasonably explained his failure to assert the claim prior to completion of the deportation hearing. 8 CFR § 208.11. . . . Nor will reopening be granted unless the evidence sought to be offered is material, was not available, and could not have been discovered or presented at the time of the original hearing. 8 CFR §§ 3.2, 103.5, 242.22. . . ." App. to Pet. for Cert. 15a.

The BIA then denied respondent's motion to reopen on both § 208.11 and prima facie case grounds, either of which would have sufficed. First, it held that respondent had not reasonably explained his failure to request asylum prior to the completion of the deportation proceedings, as required by Immigration and Naturalization Service (INS or Agency) regulations.2 In support of this holding, the BIA noted that the Immigration Judge had continued the deportation hearing from November 10, 1981, until April 29, 1982, to give respondent an opportunity to apply for asylum, but that respondent had expressly declined to do so, and further, that all of the facts set forth in the motion—except for the surprise visit in 1984—had been available to respondent at the time of the hearing. With respect to the visit, the BIA observed that "the respondent's visitor was admittedly a long-time friend of the respondent's who in fact may have been paying a purely social visit." App. to Pet. for Cert. 17a.

Second, the BIA also held that the facts set forth in the motion to reopen did not show either a clear probability of persecution within the meaning of § 243(h) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U.S.C. § 1253(h),3 or that respondent was eligible for asylum as a "refugee," see 8 U.S.C. § 1101(a)(42), under § 208 of the Act, 8 U.S.C. § 1158.4 In support of this holding, the BIA noted that no affidavit from his brother had been offered, and that there was no satisfactory explanation of the details of respondent's relationship with the enemies of the government or the reasons why that relationship might lead to his persecution. The BIA concluded that his conjectures about probable threats were too speculative to constitute a prima facie showing of eligibility for either asylum or withholding of deportation.

When respondent petitioned for review of the order denying his motion to reopen, the Court of Appeals consolidated that petition with his pending petition to review the original order of deportation. The court affirmed the deportation order,5 but...

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