IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ASSIBI ABUDU No. 86-1128 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Memorandum for the Immigration and Naturalization Service As we explained in our petition (at 8-10), the present case raises essentially the same issues as those presented in INS v. Fazelihokmabad, petition for cert. pending, No. 86-1008. Both cases involved the extent to which a reviewing court is required to defer to the ruling of the Board of Immigration Appeals (BIA) in the context of a motion to reopen deportation proceedings under 8 C.F.R. 3.2. Respondent asserts (Br. in Opp. 12-30) that the Court should deny review and should not hold the case, as we requested, for appropriate disposition in light of its disposition of our petition in Fazelihokmabad. His principal point (Br. in Opp. 15-21) is that the present case involves a motion to repoen to apply for asylum (under 8 U.S.C. 1158 (a)) and withholding of deportation (under 8 U.S.C. 1253 (h)), whereas Fazelihokmabad involves a motion to reopen to seek adjustment of status (under 8 U.S.C. 1255 (a)) and suspension of deportation (under 8 U.S.C. 1254 (a)(1))'. That distinction, however, while factually correct, ingores the whole basis of the Immigration and Naturalization Service's concern. As we pointed out (86-1128 Pet. 8-9; 86-1008 Pet. 11-14), the immigration statutes do not provide a vehicle for reopening deportation proceedings after a final deportation order has been entered. A motion to reopen is purely a product of regulation to enable the BIA to reevaluate its prior disposition in light of significant new developments. Relying on this Court's decision in INS v. Jong Ha Wang, 450 U.S. 139 (1981), we emphasized (86-1008 Pet. 11 & n.7) that the BIA must have the ability to be selective in ruling on motions to reopen in order to prevent unnecessary evidentiary hearings. /1/ These principles are fully applicable in the context of motions to reopen to apply for asylum and withholding of deportation. Respondent deliberately chose not to seek asylum or withholding of deportation during his actual deportation hearing (see 86-1128 Pet. 4). Therefore, his only vehicle for later seeking that relief was by filing a motion to reopen pursuant to the same regulation (8 C.F.R. 3.2.) governing the motion filed by the respondent in Fazelihokmabad. /2/ And that regulation is no way provides (or even implies) that reopening will be more liberally granted in cases involving asylum or withholding of deportation. In Jong Ha Wang, this Court noted (450 U.S. at 144 n.5) that the regulation governing reopening "does not affirmatively require the Board to reopen the proceedings under any particular condition * * * (and thus) may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened." See also INS v. Rios-Pineda, 471 U.S. 444, 449 (1985) ("granting a motion to reopen is a discretionary matter with the BIA"). There is no basis for respondent's position that this Court's pronouncements involving 8 C.F.R. 3.2 can be ignored simply because the relief being sought in a motion to reopen is asylum or withholding of deportation. /3/ For the foregoing reasons and those given in the petition, 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 FEBRUARY 1987 /1/ That need for selectivity is exemplified by this case, since respondent concedes (Br. in Opp. 11) that the strength of his new evidence in support of his motion to reopen was "ambiguous." /2/ Respondent errs in asserting (Br. in Opp. 20) that "the sole question before the Ninth Circuit was whether (he) had established a prima facie case of a well founded fear of persecution." Rather, the important question for present purposes was whether the BIA correctly found that respondent had not offered significant new evidence and had not adequately explained his previous failure to seek asylum or withholding of deportation (see 8 C.F.R. 3.2, 208.11). The BIA plainly has broad discretion in deciding these questions, and therefore, contrary to the holding of the court of appeals (see 86-1128 Pet. App. 9a), is not required to draw all inferences in the alien's favor. /3/ Respondent's remaining claims also lack merit. Respondent asserts (Br. in Opp. 25-30) that review should be denied because he has a constitutional right to apply for asylum and withholding of deportation. This assertion is meritless. Even if there is such a right, which we in no way concede, respondent (as noted) had every opportunity to seek such relief during his deportation hearings but specifically declined to do so. Respondent cites nothing to suggest that there is any right, let alone a constitutional right, to obtain reopening of deportation proceedings. In any event, respondent never argued below that he was constitutionally entitled to reopening of his deportation proceedings. Respondent also contends (Br. in Opp. 20) that the issue raised by the government was not raised below. That argument is erroneous. We specifically contended (Gov't C.A. Br. 15) that the standard of review articulated by this Court in Jong Ha Wang and Rios-Pineda is fully applicable in the context of motions to reopen to apply for asylum and withholding of deportation. And we emphasized (Gov't C.A. Br. 16) that a motion to reopen is purely a product of regulation and is not provided for by statute. Indeed, respondent himself conceded below (Abudu C.A. Br. 25) that the BIA has discretion in ruling on motions to reopen and cited Rios-Pineda as the governing authority.