IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ASSIBI ABUDU No. 86-1128 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the United States Court of Appeals For the Ninth Circuit Brief for the Petitioner TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Questions presented Statement Summary of argument Argument: The Board of immigration appeals properly denied respondent's motion to reopen deportation proceedings A. Because of the BIA's broad discretion in deciding whether to grant reopening, its decision must be affirmed if it is reasoned and not arbitrary B. The court of appeals has adopted rules that improperly limit the BIA's discretion in ruling on motions to reopen C. The BIA's refusal to reopen respondent's deportation proceedings was reasoned and not arbitrary and must therefore be upheld Conclusion OPINIONS BELOW The opinions of the court of appeals (Pet. App. 1a-11a) is reported at 802 F.2d 1096. The opinions of the Board of Immigration Appeals (BIA) (Pet. App. 13a-20a, 21a-24a) are unreported. The decision of the immigration judge (Pet. App. 25a-28a) is likewise unreported. JURISDICTION The judgment of the court of appeals (Pet. App. 12a) was entered on October 14, 1986. The petition for a writ of certiorari was filed on January 6, 1987, and was granted on March 23, 1987. The jurisdiction of this Court rests upon 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 C.F.R. 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 if it is plausible and not arbitrary. 2. Whether the BIA, in ruling on an alien's motion to reopen deportation procedings, 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 first entered the United States in 1965 as a nonimmigrant student. In July 1973, he re-entered this country on a student visa, with authority to remain here until February 1976. In October 1980 he was charged in a California state court with 11 counts of obtaining narcotic drugs by "ficticious prescription." The prosecutor subsequently filed an amended information adding three additional counts of obtaining narcotic drugs "by fraud, deceit, misrepresentation, and subterfuge." On April 7, 1981, respondent pleaded guilty to the latter three charges. Based on his criminal convictions, 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)). /1/ 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)). Pet. App. 2a, 14a, 22a; 1 R. 64-82. /2/ On November 3, 1981, the INS commenced deportation proceedings. Respondent indicated that he was not prepared to proceed and requested a continuance. The immigration judge (IJ) agreed to continue the matter for one week. On November 10, 1981, respondent stated that he wanted to plead to the allegations and requested that the hearing be reset for December. He admitted, through counsel, that he was not a citizen or national of the United States, that he was a native and citizen of Ghana, and that he entered the United States on or about July 27, 1973. He denied the narcotics convictions, as charged in the order to show cause, and he also denied deportability. Respondent designated England as the country where he wished to be sent if deported. The IJ designated Ghana as the country of deportation in the event that England declined to accept respondent. The IJ then asked respondent whether he thought that his life or freedom would be threatened in Ghana on account of his race, religion, nationality, membership in a particular social group or political opinion. Respondent replied that his life would be threatened because of his political opinion. The IJ then asked respondent's counsel whether respondent intended to apply for asylum (8 U.S.C. 1158(a)) and withholding of deportation (8 U.S.C. 1253(h)). His counsel replied affirmatively. The IJ then scheduled the hearing for January 11, 1982, and he instructed respondent to be prepared to present his asylum claim at that time. Pet. App. 2a, 15a-16a; 1 R. 41-42, 45-46, 82. The hearing resumed on January 11, 1982. At that hearing the INS attorney supplemented the order to show cause with the additional charge of remaining in the United States beyond the period authorized by respondent's visa. Respondent asked for another continuance, which the IJ granted. The IJ also noted that respondent had previously indicated his intention to apply for asylum, and he specifically reminded respondent to bring his asylum application with him on the next hearing date. Pet. App. 2a, 14a; 1 R. 50, 64. On April 29, 1982, when the hearing resumed, the IJ began by stating that the matter had been adjourned so that respondent could plead to the newly lodged charge and could apply for asylum or suspension of deportation. Respondent, through counsel, agreed with the IJ's recollection of the reasons for the adjournment. Respondent then admitted the overstay charge. The IJ asked respondent if he intended to apply for asylum, and respondent, again through his attorney, stated that he did not so intend and that he would be applying only for adjustment of status (based on his marriage to a United States citizen). /3/ The IJ advised respondent that the latter application appeared to be meritless, since the narcotics convictions rendered him statutorily ineligible for that relief (see 8 U.S.C. 1182(a)(23), 1255(a)). Respondent's attorney then requested additional time to research the issue of respondent's eligibility for adjustment of status. Pet. App. 2a, 16a; 1 R. 52-56. The hearing resumed for the final time on July 1, 1982. Notwithstanding the IJ's warning at the prior proceeding, the only application submitted by respondent was for adjustment of status. 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)). Pet. App. 3a, 14a, 26a-28a; 1 R. 58. The BIA affirmed the IJ's decision (Pet. App. 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, 3.8(a), and 208.11, requesting that his deportation proceedings be reopened so that he could 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 friend of respondent's, Lt. Col. Joshua Hamidu, was declared by Rawlings to be the number one enemy of the government. Pet. App. 3a-4a, 15a; 2 R. 16-17, 18, 20, 23, 25-39. Respondent conceded that most of the evidence in support of his motion to reopen was available at the time of the deportation proceeding (Pet. App. 16a). The only event relating to respondent that occurred after the deportation hearing was a visit to him in the United States by an official of the Ghanian regime (id. at 11a, 16a-17a; Br. in Opp. 11; 2 R. 17). Respondent indicated in his affidavit that in the Spring of 1984, he received a telephone call from his brother Baba, /4/ who told him that Abukari Alhassan, an official with the Rawlings government, had asked Baba how to contact respondent. In order "(t)o avoid suspicion," and because Baba knew that "as a physician (respondent) would be easy to find," Baba gave Alhassan respondent's phone number. Pet. App. 10a, 17a; 2 R. 29. Alhassan had previously held an official position with a former government of Ghana, and he had allegedly spent a year in jail. After his release from jail, Alhassan purportedly "recanted his previous ties and joined the Rawlings' regime." At the time of the asylum application, Alhassan was the Ghanian Secretary of Housing and Construction. Pet. App. 10a, 17a; 2 R. 29. According to respondent, the "ostensibl(e)" purpose of Alhassan's visit was a "friendly" one "because (they) had known each other many years" (2 R. 29-30). Respondent noted, however, that Alhassan inquired about respondent's brother and other enemies of the Ghanian regime. In addition, Alhassan 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 brother and other opponents of the Rawlings government. Respondent purportedly feared that because he had not returned to Ghana as requested, he had been "listed * * * as a member of the conspiracy" planning to stage a coup. Pet. App. 17a; 2 R. 30-31. 3. The BIA denied respondent's motion to reopen on two separate grounds (Pet. App. 13a-20a). First, it ruled that respondent had not adequately explained his failure to apply for asylum and withholding of deportation during his deportation hearing and therefore did not fulfill the regulatory requirements for reopening (id. at 16a-18a (citing 8 C.F.R. 208.11)). The BIA noted (Pet. App. 17a) that, in seeking reopening, respondent relied almost entirely upon facts that existed at the time of the deportation hearing. /5/ Moreover, the one new fact presented -- the visit from the Ghanian official -- was, in the BLA'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 explain(ed) respondent's failure to apply for asylum at the (deportation) hearing" (ibid.). Second, the BIA found that respondent failed to set forth a prima facie case of eligibility for either asylum or withholding of deportation (Pet. App. 18a-20a). /6/ The BIA noted that respondent's purported grounds for fearing persecution were "lacking in specific, objective detail" (id. at 20a). It pointed out (id. at 19a) that while respondent alleged that his brother's house was surrounded by troops, "(n)o affidavit from the brother (was) offered * * * and no details (were) provided as to the alleged troop actions around (the brother's) house, or as to the circumstances of his escape and exile." With respect to the other "associates" referred to by respondent as "declared enemies" of the government, the BIA noted that with only one exception, respondent "(did) not provide details as to his relationships with" those men (id. at 20a). Moreover, the BIA observed, "(i)n no case (was) it adequately explained how his relationships with (purported enemies of the Ghanian regime) would result in persecution to himself should he return to his native land" (ibid.). Finally, the BIA found that respondent's 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 "speculative at best" (ibid.). /7/ 4. Respondent thereafter filed a petition for review in the Ninth Circuit. That court reversed the BIA's denial of reopening and remanded the case for an evidentiary hearing (Pet. App. 1a-11a). /8/ 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 was "wide discretion" in ruling on motions to reopen. The court then added: "Here, however, the sole issue is whether (respondent) presented a prima facie case for reopening" (Pet. App. 6a). /9/ Accordingly, the court reasoned, it was "not faced with the exercise of the Board's administrative discretion" (ibid. (emphasis in original)). Rather, the issue, in the court's view, 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'" (Pet. App. 10a (citation omitted)). The court derives this principle by analogizing a motion to reopen to a motion for summary judgment (id. at 9a). Applying the foregoing standards, the court reversed 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 (Pet. App. 11a). The visit from the Ghanian official "could reasonably have placed (respondent) in fear for his life" (ibid.). /10/ Furthermore, the court noted, respondent's "earlier aborted claims (did) not negate the relevance of this new development" (ibid.). The court acknowledged that the visit from the Ghanian official "could be viewed as benign," but it stated that, because the visit "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.). /11/ SUMMARY OF JUDGMENT I. A. The Immigration and Nationality Act, 8 U.S.C. (& Supp. III) 1101 et seq., does not provide a vehicle for reopening deportation proceedings after a final order of deportation has been entered. The Attorney General has nevertheless established such a procedure by regulation (8 C.F.R. 3.2). The purpose of the regulation is to prevent hardship in cases where there have been significant developments subsequent to the deportation hearing. The regulation does not specify that reopening will be granted in any particular circumstance; instead, it leaves that determination to the BIA. Since the reopening procedure is provided solely as a matter of administrative grace, common sense would dictate that the BIA should have broad discretion in deciding when to reopen a case. Granting such motions too liberally would overload the immigration authorities with evidentiary hearings in cases which have already been fully adjudicated and would provide incentives to aliens to file frivolous motions solely to delay deportation. Recognizing these principles, this Court has repeatedly held that the BIA has broad discretion in ruling on motions to reopen. See INS v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984); and INS v. Jong Ha Wang, 450 U.S. 139 (1981). Correspondingly, it has made clear that a reviewing court must apply a deferential standard of review. Thus, in Rios-Pineda, the Court rules that the BIA's denial of reopening was proper because its decision was not an "unreasoned or arbitrary exercise of discretion" (471 U.S. at 451). This, we submit, is the proper standard of review. Even if the reviewing court would have granted reopening, it must affirm the BIA's contrary decision as long as the BIA's ruling is reasoned and not arbitrary. B. In the present case, the court of appeals fashioned two broad rules to govern motions to reopen. First, it held that in ruling on a motion to reopen, the BIA must draw all reasonable inferences in favor of the alien (Pet. App. 9a). Second, it held that the BIA's refusal to reopen because of the alien's failure to set out a prima facie case must be reversed if that decision is not "correct" (id. at 7a). These rules of review, and their application in this case, impermissibly undermine the BIA's discretion. The court of appeal's first rule forces the BIA to give dispositive significance to ambiguous facts. It therefore compels the BIA to reopen even in marginal or insubstantial cases. In addition to conflicting with this Court's decisions in Rios-Pineda, Phinpathya, and Jong Ha Wang dealing with motions to reopen, that rule is contrary to the more general principle of administrative law that it is for the agency, not the court, to decide which of several reasonable inferences should be drawn from the facts. See, e.g., FTC v. Pacific States Paper Trade Ass'n, 273 U.S. 52, 63 (1927). Similarly, the court's second rule improperly undermines the BIA's discretion by enabling the court to substitute its judgment for that of the agency. The proper standard is not whether the BIA's decision is "correct," but, as we have noted, only whether it is reasoned and not arbitrary. C. The present case involves a motion to reopen to apply for asylum and withholding of deportation. Although the court of appeals did not limit its two rules to any specific type of motion to reopen, it is nonetheless true that Jong Ha Wang, Phinpathya, and Rio-Pineda all involved motions to reopen to apply for suspension of deportation. This distinction, however, does not undermine the applicability of those decisions. Regardless of the relief being sought, the alien requesting reopening must submit his application under the same regulation (8 C.F.R. 3.2). Moreover, in all cases, the BIA has a strong interest in ensuring that reopening is granted (and evidentiary hearings ordered) only where the alien's claim has obvious merit. Of equal importance, the Attorney General and his delegates are entitled to deference because of their expertise in evaluating the legitimacy of an alien's claim that his life or freedom would be threatened in his native country. Indeed, even when the alien applies for withholding of deportation or asylum during the deportation hearing, the BIA's denial of such relief is reviewed under a deferential standard in which the court does not substitute its judgment for that of the BIA. See, e.g., Cruz-Lopez v. INS, 802 F.2d 1518, 1519 n.1 (4th Cir. 1986); Diaz-Escobar v. INS., 782 F.2d 1488, 1493 (9th Cir. 1986). It follows, a fortiori, that when the alien is asking the agency to reopen his proceeding, the agency must be given even greater deference. It is therefore not surprising that the courts have repeatedly held that the principles enunciated in this Court's decisions are applicable to motions to reopen involving requests for asylum or withholding of deportation. See, e.g., Ganjour v. INS, 796 F.2d 832, 837-838 (5th Cir. 1986); Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986); Haftlang v. INS, 790 F.2d 140, 143 (D.C. Cir. 1986); Maroufi v. INS, 772 F.2d 597, 598-601 (9th Cir. 1985). Cf. Ananeh-Firempong v. INS, 766 F.2d 621, 625, 626 (1st Cir. 1985) (distinguishing mandatory nature of withholding of deportation from discretionary remedies, but relying on Rios-Pineda for proposition that BIA's denial of motion to reopen to apply for withholding must be affirmed if it is "reasonable"). Indeed, respondent himself conceded below that Rios-Pineda was the governing authority and that the proper standard was abuse of discretion (Abudu C.A. Br. 25). Even in the criminal context, reopening because of new evidence is deemed an extraordinary remedy. A motion for a new trial in a criminal case on the basis of newly discovered evidence is disfavored and will not be granted unless the new evidence could not have been discovered before trial and is so compelling that it probably would result in an acquittal. See, e.g., United States v. Sutton, 767 F.2d 726, 728 (10th Cir. 1985); United States v. Vergara, 714 F.2d 21, 22 (5th Cir. 1983). The justification for finality is, if anything, greater in the deportation context than in the criminal context. II. The BIA properly denied reopening in this case. The one new fact relating to respondent that post-dated the deportation hearing, i.e., the visit from the Ghanian official, could reasonably be viewed as benign, as both the court of appeals (Pet. App. 11a) and respondent (Br. in Opp. 11) acknowledged. Since all of the other facts existed at the time of the deportation hearing, the BIA correctly held that respondent did not adequately explain his failure to seek asylum or withholding of deportation during the deportation hearing, as required by 8 C.F.R. 208.11. The BIA also acted within its discretion in ruling that respondent failed to establish a prima facie case for asylum or withholding of deportation. Respondent offered no evidence showing a threat of persecution directed against him. He simply alleged that various "associates" were in danger, and he speculated, with no evidentiary support, that he might therefore be viewed as a co-conspirator in plans for a coup attempt. Moreover, apart from the visit from the Ghanian official, all of the relevant facts existed at the time of the deportation hearing, yet respondent was not sufficiently concerned at that time to apply for asylum or withholding of deportation. Accordingly, the BIA's decision that respondent failed to establish a prima facie showing of eligibility for asylum or withholding of deportation was not unreasoned or arbitrary and should have been upheld by the court below. ARGUMENT THE BOARD OF IMMIGRATION APPEALS PROPERLY DENIED RESPONDENT'S MOTION TO REOPEN DEPORTATION PROCEEDINGS This Court has repeatedly underscored the broad discretion of the Attorney General and his delegates in deciding when to reopen deportation proceedings. See INS v. Rios-Pineda, 471 U.S. 444, 449-451 (1985); INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984); INS v. Jong Ha Wang, 450 U.S. 139, 143-144 n.5 (1981). Notwithstanding this Court's pronouncements, the court of appeals has improperly restricted the BIA's discretion in ruling on motions to reopen by (1) requiring the BIA, in ruling on such motions, to draw all inferences in favor of the alien, and (2) reviewing de novo the BIA's determination that an alien has failed to establish a prima facie case for relief. According to the court of appeals, the BIA's role in ruling on a motion to reopen is merely a "limited screening function" (Pet. App. 10a (emphasis added)). The court's erroneous analysis would enable aliens to reopen their deportation proceedings and to obtain new evidentiary hearings even in insubstantial cases. This case dramatically illustrates the point. Respondent has been in this country illegally since 1976. His deportation hearing occurred in 1982. Yet the Ninth Circuit has now ordered the immigration authorities to conduct a new round of evidentiary hearings, based solely on so-called "newly discovered evidence" that even the court of appeals and respondent admitted could be viewed as benign or ambiguous. Such a result cannot be reconciled with the teachings of this Court. A. Because Of The BIA's Broad Discretion In Deciding Whether To Grant Reopening, Its Decision Must Be Affirmed If It Is Reasoned And Not Arbitrary 1. When an alien applies for asylum or withholding of deportation during his deportation hearing, a court reviewing the BIA's decision is required to apply a deferential standard of review. Specifically, with respect to withholding of deportation, /12/ the courts have held that the issue is not whether the BIA was "correct," but only whether there was substantial evidence to support its decision. See, e.g., Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir. 1987); Cruz-Lopez v. INS, 802 F.2d 1518, 1519 n.1 (4th Cir. 1986) (citing cases); Diaz-Escobar v. INS, 792 F.2d 1488, 1493 (9th Cir. 1986) (citations omitted) ("Under the deferential substantial evidence standard, we may not reverse the BIA simply because we disagree with its evaluation of the facts, but only if we conclude that the BIA's evaluation is not supported by substantial evidence."); cf. Marroquin-Manriquez v. INS, 699 F.2d 129, 133 & n.5 (3d Cir. 1983) (standard of review of denial of withholding of deportation is abuse of discretion), cert. denied, 467 U.S. 1259 (1984). Similarly, with respect to asylum, /13/ the questions are (1) whether there was substantial evidence to support the BIA's finding of no well-founded fear of persecution and (2) whether the ultimate denial of asylum constituted an abuse of discretion. See, e.g., Mendez-Efrain v. INS, 813 F.2d 279, 282-283 (9th Cir. 1987); Cruz-Lopez v. INS, 802 F.2d at 1519 n.1 (citing cases). Even if an alien did not apply for withholding of deportation or asylum during the deportation hearing, he can still attempt to convince the immigration authorities to reopen his deportation hearing to entertain such a request. The Immigration and Nationality Act (the Act), 8 U.S.C. (& Supp. III) 1101 et seq., does not itself provide for reopening of deportation proceedings after a final order of deportation has been entered. And Congress has not seen fit to codify such a procedure in subsequent immigration legislation. /14/ That procedural device is purely a product of regulation (see 8 C.F.R. 3.2, 3.8(a), 208.11) /15/ to enable the BIA to re-evaluate its prior disposition in cases where significant developments have occurred subsequent to the hearings and decisions therein. See Rios-Pineda, 471 U.S. at 446; Jong Ha Wang, 450 U.S. at 140-141. Furthermore, the regulation is stated in the negative: "Motions to reopen * * * 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" (8 C.F.R. 3.2 (emphasis added)). See also 8 C.F.R. 208.11 (motion to reopen "must reasonably explain the failure to request asylum prior to the completion of the exclusion or deportation proceeding"). As this Court has recognized, the regulation "does not affirmatively require the Board to reopen the proceedings under any particular condition." Jong Ha Wang, 450 U.S. at 143-144 n.5. Since the vehicle for reopening is purely a product of regulation, and since that regulation does not mandate reopening under any specified circumstance, it stands to reason that the BIA's denial of a motion to reopen to apply for asylum or withholding of deportation must be given even greater deference than its denial of a request for such relief that is made during the deportation hearing. See Kaveh-Haghigy v. INS, 788 F.2d 1321, 1322 (9th Cir. 1986) (noting that where alien seeks asylum or withholding of deportation by way of a motion to reopen, "the government's actions are reviewed under a more lenient abuse of discretion standard"); cf. Sang Seup Shin v. INS, 750 F.2d 122, 131 (D.C. Cir. 1984)(Starr,J., dissenting) ("The Board's discretion * * * is at its zenith in making a discretionary procedural determination which Congress did not see fit to enact."). See generally Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980) (citing Bowles v. Seminole Rock Co., 325 U.S. 410, 413-414 (1945)) (agency's construction of its own regulations is entitled to great deference). It is our submission that the BIA's ruling on a motion to reopen must be affirmed if it is reasoned and not arbitrary. Cf. Rios-Pineda, 471 U.S. at 451 (ruling that the Eighth Circuit improperly reversed the BIA's denial of a motion to reopen to apply for suspension of deportation, since the BIA's decision was not an "unreasoned or arbitrary exercise of discretion"); see also Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986) (quoting Rios-Pineda and indicating that motion to reopen to apply for asylum or withholding of deportation will be upheld unless it was "an 'unreasoned or arbitrary exercise of discretion'" or "contrary to law"). Put another way, the denial of a motion to reopen must be affirmed "unless it 'was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.'" Williams v. INS, 773 F.2d 8, 9 (1st Cir. 1985) (quoting Le Blanc v. INS, 715 F.2d 685, 693 (1st Cir. 1983), and Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982)); accord, e.g., Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985); Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966); see also Dolores v. INS, 772 F.2d 223, 225 (6th Cir. 1985) (citing Balani for proposition that "(t)he decision of (a) motion to reopen * * * deportation proceedings in order to apply for asylum rests in the sound discretion of the INS"). 2. a. This Court's decisions confirm the limited standard of review that we urge. In Jong Ha Wang, a 1981 decision, this Court summarily reversed the Ninth Circuit in a case raising an issue similar to the present one. The alien in Jong Ha Wang filed a motion to reopen to apply for suspension of deportation on grounds of extreme hardship. The Ninth Circuit, sitting en banc, ruled that the extreme hardship statute should be liberally construed and that, under such a construction, the alien had set out a prima facie case and was entitled to reopening. 622 F.2d 1341 (1980). In reversing, this Court rejected the Ninth Circuit's conclusion that reopening was required simply because the alien appeared to have established a prima facie case. The Court quoted with approval the dissent in the Ninth Circuit in a companion case to Jong Ha Wang, which explained the need for permitting the Attorney General and his delegates to be selective in deciding when to grant a motion to reopen: "If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations." 450 U.S. at 144 n.5 (quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace,J., dissenting)). Subsequently, in Phinpathya, the Court again discussed the BIA's broad discretion in ruling on motions to reopen. The issue in Phinpathya was whether the alien's three-month trip abroad had broken the continuity of her physical presence in this country, making her ineligible for suspension of deportation under 8 U.S.C. 1254(a)(1). The Court, in holding that it did, rejected the alien's claim that the case was moot because she had been here continuously for seven years after returning from her trip. It noted that although the alien had filed a motion to reopen her deportation proceeding, "granting of the motion is entirely within BIA's discretion" (464 U.S. at 188 n.6). /16/ Recently, in Rios-Pineda, this Court reversed an Eighth Circuit decision ordering the BIA to reopen deportation proceedings to consider the hardship claims of two aliens who had filed frivolous appeals and violated the immigration laws. In holding that the BIA did not abuse its discretion in denying the aliens' motion to reopen, the Court explained (471 U.S. at 449) that "granting a motion to reopen is a discretionary matter with BIA" and that such a motion may be denied as a matter of discretion even if a prima facie case of eligibility for relief has been made. Upon reviewing the record in the case, the Court found (id. at 451-452) that the case "(did) not involve the unreasoned or arbitrary exercise of discretion" and that "the BIA's explanation of its decision was grounded in legitimate concerns about the administration of the immigrations laws." The Court further observed (id. at 452) that "it is not for the judiciary to usurp Congress' grant of authority to the Attorney General by applying what approximates de novo appellate review." b. Although Jong Ha Wang, Phinpathya, and Rios-Pineda all involved motions to reopen to seek suspension of deportation, the various circuits that have addressed the question have repeatedly applied the holdings of those cases to motions to reopen to seek asylum or withholding of deportation. See, e.g., Ghadessi v. INS, 797 F.2d 804, 809 (9th Cir. 1986) (Jameson,J., concurring); id. at 810 (Poole,J., dissenting); Ganjour v. INS, 796 F.2d 832, 837-838 (5th Cir. 1986); Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986); Haftland v. INS, 790 F.2d 140, 143 (D.C. Cir. 1986); Bahramnia v. INS, 782 F.2d 1243, 1245-1246 & n.15 (5th Cir. 1986) (relying on Rios-Pineda and noting that while case at issue involved motion to reopen to apply for withholding of deportation and asylum whereas the aliens in Rios-Pineda were seeking suspension, "the difference (was) immaterial"), cert. denied, No. 85-7154 (Nov. 3, 1986); Sanchez v. INS, 707 F.2d 1523, 1527 n.9 (D.C. Cir. 1983). See also Minwalla v. INS, 706 F.2d 831, 834 (8th Cir. 1983) (standard of review in context of motion to reopen to apply for asylum is abuse of discretion); Kashani v. INS, 547 F.2d 376, 378 (7th Cir. 1977) (standard of review in motion to reopen where alien claims fear of persecution is abuse of discretion). Cf. Ananeh-Firempong v. INS, 766 F.2d 621, 624-626 (1st Cir. 1985) (distinguishing withholding of deportation from various forms of discretionary relief but stating, citing Rios-Pineda, that the BIA's denial of a motion to reopen to apply for withholding of deportation must be affirmed if it is "reasonable," i.e., not "arbitrary, capricious, (or) an abuse of discretion"). The logic of the cases applying this Court's decisions in Rios-Pineda, Jong Ha Wang, and Phinpathya to motions to reopen involving withholding of deportation and asylum is unassailable. The reopening regulations (8 C.F.R. 3.2, 3.8(a)) are applicable without regard to the type of relief being sought. /17/ In addition, the need to allow the BIA to weed out non-meritorious claims remains the same regardless of the type of relief being sought. Moreover, the Attorney General and his delegates have expertise in reviewing and evaluating claims involving asylum and withholding of deportation. See, e.g., Saballo-Cortez v. INS, 761 F.2d 1259, 1266 (9th Cir. 1985) (principle of deference to agency expertise applicable in reviewing BIA's denial of application for withholding of deportation and asylum); Marroquin-Manriquez v. INS, 699 F.2d 129, 133 n.5 (3d Cir. 1983) (noting "the necessary application of expertise implicated in the determination that a fear of persecution is well-founded"), cert. denied, 467 U.S. 1259 (1984); see also Achacoso-Sanchez, 779 F.2d at 1265. That expertise, which is not possessed by the courts, provides an added reason for a reviewing court not to substitute its judgment for that of the BIA. c. The appropriateness of a narrow standard of judicial review in the context of motions to reopen is also confirmed by two related lines of cases: (1) administrative law authorities outside of the immigration area, and (2) analogous criminal law cases. It is a well established principle of administrative law that the refusal to reopen administrative proceedings is afforded great judicial deference. /18/ The party seeking reopening bears a "heavy burden," and the courts will not order reopening "except in the most extraordinary circumstances." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 296 (1974); Cities of Campbell v. FERC, 770 F.2d 1180, 1191 (D.C. Cir. 1985). In order to avoid reopening in virtually every case, it is "almost a rule of necessity" that administrative agencies must ordinarily deny reopening despite the existence of some new fact. ICC v. Jersey City, 322 U.S. 503, 514 (1944). As this Court has stated (id. at 514-515), if litigants could "demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening." Accord, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554-555 (1978); United States v. ICC, 396 U.S. 491, 520-521 (1970); Nance v. EPA, 645 F.2d 701, 717 (9th Cir.), cert. denied, 454 U.S. 1081 (1981). Because of the need for finality, a refusal to reopen proceedings despite the assertion of some new event will not be disturbed except upon "a showing of the clearest abuse of discretion." United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 535 (1946) (emphasis added); accord, e.g., Mobil Oil Corp. v. ICC, 685 F.2d 624, 631 (D.C. Cir. 1982); Duval Corp. v. Donovan, 650 F.2d 1051, 1054 (9th Cir. 1981). /19/ Even in the criminal context, /20/ reopening a proceeding to consider new evidence is an extraordinary remedy. Thus, a criminal defendant who moves for a new trial based on newly discovered evidence has an exceedingly difficult burden. Such a motion is "not favored" and is "viewed with great caution." United States v. Vergara, 714 F.2d 21, 22 (5th Cir. 1983) (quoting authority); accord, e.g., United States v. Davis, 604 F.2d 474, 483 (7th Cir. 1979). A trial court's refusal to order a new trial based on newly discovered evidence will not be reversed absent an abuse of discretion. Moreover, such a motion will not be granted unless the new evidence could not have been discovered prior to trial and is so compelling that it would probably result in an acquittal. See, e.g., United States v. Agurs, 427 U.S. 97, 111 & n.19 (1976) (noting that the "standard generally applied by lower (federal) courts in evaluating motions for new trial * * * based on newly discovered evidence" is "the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal"); United States v. Massa, 804 F.2d 1020, 1022 (8th Cir. 1986); United States v. Sutton, 767 F.2d 726, 728 (10th Cir. 1985). /21/ There is no reason why a motion to reopen a deportation proceeding should be granted more liberally than a similar motion in a criminal case. B. The Court Of Appeals Has Adopted Rules That Improperly Limit The BIA's Discretion In Ruling On Motions To Reopen Notwithstanding this Court's pronouncements, the court of appeals in the present case adopted two principles that would severely undermine the BIA's discretion in ruling on motions to reopen. First, the court held that when the BIA denies a motion to reopen on the ground that the alien has not established a prima facie showing of entitlement to relief, the issue on review is whether the BIA's decision is "correct" (Pet. App. 7a). Second, the court held that the BIA, in reviewing motions to reopen, must draw all reasonable inferences in favor of the alien (id. at 9a-10a). Although the present case involves a motion to reopen to apply for asylum or withholding of deportation, the court did not limit its rationale to such motions. Rather, its rules appear to apply regardless of the underlying relief being sought. /22/ We submit that the court's rules impermissibly undermine the BIA's broad discretion in ruling on motions to reopen. /23/ 1. The Ninth Circuit's rule that the BIA's denial of a motion to reopen for lack of a prima facie case must be reversed if it is not "correct" is totally unprecedented. The court's standard constitutes de novo review, a standard that gives no deference whatsoever to the BIA. See generally 2 S. Childress & M. Davis, Standards of Review Section 15.2, at 263 (1986) ("Under the standard called de novo review, the court is charged to affirm only if it agrees with the decision under review -- that is, if it finds that the decision is the correct one. * * * The court is not bound by the agency decision at all."). This Court has stated, however, that "in the absence of specific statutory authorization, a de novo review is generally not to be presumed." Consolo v. FMC, 383 U.S. 607, 619 n.17 (1966). See also United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963). Indeed, even in the criminal context, "judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment." Woodby v. INS, 385 U.S. 276, 282 (1966). A reviewing court in a criminal case generally "does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt," but rather asks only "whether the judgment is supported by substantial evidence." Ibid. (footnote omitted). In the context of motions to reopen deportation proceedings, Congress did not provide for reopening at all, let alone articulate a de novo standard of review of the Attorney General's wholly discretioary decision whether to reopen. And this Court, far from suggesting that de novo review is appropriate, has made clear that the reviewing court may not engage in de novo review of the BIA's denial of a motion to reopen. Rios-Pineda, 471 U.S. at 451. Similarly, until the present case, the circuits addressing the issue had repeatedly held that the BIA's determination of whether an alien seeking reoping had established a prima facie case of eligibility for asylum and withholding of deportation was entitled to deference. See, e.g., Ganjour v. INS, 796 F.2d 832, 837-838 (5th Cir. 1986); Haftlang v. INS, 790 F.2d 140, 144 (D.C. Cir. 1986); Bahramnia v. INS, 782 F.2d 1243, 1245, 1249 (5th Cir. 1986), cert. denied, No. 85-7154 (Nov. 3, 1986); Maroufi v. INS, 772 F.2d 597, 598-601 (9th Cir. 1985). In the present case, the court of appeals announced a de novo review standard that was not even urged by the alien. /24/ The court relied primarily on Ghadessi v. INS, 797 F.2d 804, 806 (9th Cir. 1986). However, there were three opinions in Ghadessi, and the opinion cited by the panel for the proposition that a prima facie case determination is reviewed for "correct(ness)" is the minority opinion on the issue. Two judges on the panel made clear that the proper standard of review was not de novo review but abuse of discretion. See 797 F.2d at 809 (Jameson, J., concurring); id. at 809-810 (Poole, J., dissenting). /25/ Thus, the court's erroneous de novo review standard was neither urged by respondent nor previously adopted by any other court. 2. The court of appeals likewise erred in holding that the BIA must draw all inferences in favor of the alien. Such a rule finds no counterpart even in the criminal law (see pages 28-29, supra). Contrary to the court of appeals' statement (Pet. App. 10a (emphasis added)), the BIA is not performing merely a "limited screening function." Rather, it is exercising its "'right to be restrictive'" and it therefore must have "'some latitude in deciding when to reopen a case.'" Jong Ha Wang, 450 U.S. at 144 n.5 (quoting Villena, 622 F.2d at 1362 (Wallace, J., dissenting)). Requiring the BIA to accept the alien's suggested interpretation of every ambiguous fact would undermine the BIA's discretion, in a manner incompatible with Jong Ha Wang, Phinpathya, and Rios-Pineda. In addition to conflicting with this Court's decisions involving motions to reopen deportation proceedings, the Ninth Circuit's rule on inferences is contrary to the principle of administrative law that where it is fairly possible to draw differing inferences from the evidence, the one drawn by the agency cannot be set aside, "even though the court could draw a different inference." Adolph Coors Co. v. FTC, 497 F.2d 1178, 1184 (10th Cir. 1974), cert. denied, 419 U.S. 1105 (1975). As this Court long ago stated, "(t)he weight to be given to the facts and circumstances * * *, as well as the inferences reasonably to be drawn from them, is for the (administrative agency)." FTC v. Pacific States Paper Trade Ass'n, 273 U.S. 52, 63, (1927); Accord, e.g., Local One, Amalgamated Lithographers v. NLRB, 729 F.2d 172, 177 (2d Cir. 1984); Hedstrom Co. v. NLRB, 629 F.2d 305, 316 (3d Cir. 1980) (en banc), cert. denied, 450 U.S. 996 (1981); National Macaroni Mfrs. Ass'n v. FTC, 345 F.2d 421, 426 (7th Cir. 1965). The court of appeals derived its rule that inferences must be drawn in the alien's favor by analogizing a motion to reopen to a motion for summary judgment. But even that inept analogy, when properly applied, supports the conclusion that all inferences should be drawn against the alien. The party moving for summary judgment is seeking to terminate an ongoing judicial proceeding before the opponent has had a trial. A motion for summary judgment should not be granted if there are any disputed factual issues, and it therefore follows that all inferences should be drawn against the moving party. See generally United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (emphasis added) ("On 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."). Similarly, an alien moving to reopen is attempting to disrupt the orderly completion of the administrative process in order to obtain a further hearing. Because "the Government has a legitimate interest in creating official procedures for handling motions to reopen deportation proceedings so as readily to identify those cases raising new and meritorious considerations" (Jong Ha Wang, 450 U.S. at 145), it follows that all inferences should, if anything, be drawn against the alien. At a minimum, the BIA should have discretion to determine which inference to draw from the alien's evidence. C. The BIA's Refusal To Reopen Respondent's Deportation Proceedings Was Reasoned And Not Arbitrary And Must Therefore Be Upheld The BIA denied respondent's motion to reopen his deportation proceedings on two grounds, either of which is independently sufficient to justify its refusal to reopen. First, the BIA ruled that respondent did not offer a reasonable explanation for his failure to apply for asylum and withholding of deportation at his deportation hearing (Pet. App. 17a-18a). Second, the BIA found that respondent failed to make a prima facie showing of eligibility for asylum or withholding of deportation (id. at 18a-20a). /26/ The BIA's decision denying reopening, which was based on a careful review of the materials submitted by respondent (id. at 17a), was reasoned and not arbitrary. Accordingly, the court of appeals erred in remanding the case for an evidentiary hearing. 1. The BIA's first ground for denying reopening stemmed from respondent's failure to provide an adequate explanation of why he did not previously apply for asylum or withholding of deportation. The BIA reasoned that the visit from the Ghanian official was the only fact alleged by respondent in his motion to reopen that post-dated the deportation hearing, and that the visit "was (not) by itself so alarming that it explains the respondent's failure to apply for asylum at the hearing" (Pet. App. 17a). Thus, the BIA concluded, respondent failed to meet the regulatory requirements for reopening (id. at 17a-18a). See 8 C.F.R. 208.11 (motion to reopen to request asylum "must reasonably explain the failure to request asylum prior to the completion of the * * * deportation proceeding"); In re Escobar, 18 I & N Dec. 412, 415 BIA (1983) (motion to reopen to request asylum or withholding of deportation "will not be granted where * * * the alien has not reasonably explained his failure to assert the claim prior to completion of the deportation hearing"); cf. 8 C.F.R. 208.3(b) (request for asylum shall also be considered request for withholding of deportation). See also 8 C.F.R. 3.2 (motion to reopen "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 * * *"). The BIA's ruling was clearly a reasonable one. According to his affidavit, respondent first discovered that his visitor, Abukari Alhassan, /27/ was in the United States when respondent received a telephone call from his brother Baba. Baba told respondent that he had given Alhassan respondent's telephone number. /28/ The asserted reason for the visit was a social one: Alhassan and respondent had known each other for many years. Respondent speculated, however, that Alhassan wanted him to return to Ghana "too badly" and that the reason was "so that (Rawlings) could try to get me to betray my brother and (Hamidu) and reveal their present whereabouts so that Rawlings' men could quell the alleged conspiracy (to overthrow his government)." 2 R. 29-31. The BIA refused to draw ominous implications from Alhassan's visit. It stated that "respondent's visitor was admittedly a long-time friend of the respondent's who in fact may have been paying a purely social visit" (Pet. App. 17a). This observation, of course, was plainly reasonable; even the court of appeals (id. at 11a) and respondent (Br. in Opp. 11) acknowledged that the evidence concerning the visit could be viewed as "benign" or "ambiguous." /29/ Moreover, Alhassan's questions concerning respondent's brother and friends can be easily explained; since Alhassan had served in the same prior regime in which respondent's brother and friends had served (or been associated with), they presumably were all well-acquainted. Alhassan's inquiries concerning them were thus fully consistent with a purely social visit. Similarly, Alhassan's repeated requests that respondent return to Ghana were not necessarily ominous. While respondent expressed doubt in his motion to reopen that Alhassan wanted him to return to Ghana because of his medical skills (2 R. 30), that may have been precisely the reason for Alhassan's requests. Indeed, respondent conceded that former Ghanian governments had also urged him to return to Ghana (2 R. 28). For example, in 1973, the Minister of Health under a former government told respondent that he could have a good position with the government, wrote a memorandum to that effect, and placed it in the medical division files. In 1979, respondent was told that a good job awaited him in Ghana and that the Minister of Health had "upgraded" his personnel recommendation "to an 'actively try to recruit' classification." Ibid. And, contrary to respondent's assertion that "(t)here is not a shortage of good doctors in Ghana" (2 R. 30), the need for good doctors in such developing nations is well known. /30/ If Alhassan had been pursuing respondent not for his medical skills but because of his relationship to his exiled brother or his friendship with Lt. Col. Hamidu, then Alhassan would logically have made similar inquiries of respondent's brother Baba or Hamidu's daughter, both of whom lived in the United States. Indeed, by giving Alhassan respondent's telephone number, Baba showed that he was a useful source of information. Yet respondent did not allege that either Baba or Hamidu's daughter had ever said that they had been questioned by Alhassan concerning the whereabouts of Hamidu or the brother-in-exile. /31/ Since the sole item of evidence post-dating the deportation hearing is of dubious value and could be viewed as benign (see page 37, supra), it follows that the primary evidence to support respondent's claim must have been in existence at the time of his deportation hearing, when he made a deliberate decision not to seek asylum or withholding of deportation. Because respondent's sole explanation for his previous failure to apply for such relief is that Alhassan's visit was the event that motivated the application, the BIA was obviously correct in ruling that respondent had not adequately explained his failure to apply for such relief during his deportation hearing. See 8 C.F.R. 208.11. In light of respondent's failure to meet the regulatory requirements for reopening, the BIA did not abuse its discretion in denying his motion to reopen. See generally Conti v. INS, 780 F.2d 698, 701 (7th Cir. 1985) (quoting Tupacyupanqui-Marin v. INS, 447 F.2d 603, 607 (7th Cir. 1971) ("(T)he failure to comply with the procedural requirements for a valid motion to reopen 'alone is normally sufficient to overcome the contention that the denial of such a motion was an abuse of discretion.'"). 2. As a second reason for denying the motion to reopen, the BIA found that respondent had failed to set forth a prima facie case of eligibility for asylum or withholding of deportation. The Ninth Circuit refused to give any deference to the BIA's determination, asserting that "(t)he BIA's action would be in accordance with law only if its conclusion that a prima facie case was not established is correct" (Pet. App. 7a (emphasis added)). The requirement that an alien set out a prima facie case as part of his motion to reopen serves an important function of enabling the BIA to identify cases having genuine merit. See, e.g., Jong Ha Wang, 450 U.S. at 145. As we have explained, determining whether a prima facie case has been established is a matter within the broad discretion of the BIA. It is not an issue that is subject to de novo judicial review. /32/ The BIA's ruling that respondent failed to establish a prima facie case for asylum and withholding was based on a careful review of the evidentiary materials. The BIA described respondent's evidence in detail (Pet. App. 14a-20a). Its opinion reveals that it studied, analyzed, and reflected upon the various points raised by respondent. Cf. Luciano-Vincente v. INS, 786 F.2d 706, 708-709 (5th Cir. 1986) (quoting Osuchukwu v. INS, 744 F.2d 1136, 1142-1143 (5th Cir. 1984)) (noting, in the context of direct review of denial of suspension of deportation, that the BIA is required simply to "'consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted'"). The BIA gave several reasons for its conclusion that respondent had failed to establish a prima facie case. Having already explained why respondent's "new" evidence was of dubious value (Pet. App. 17a), the BIA proceeded to review the remaining evidence. First, the BIA acknowledged respondent's reference to his brother, now in exile, who was an employee of a previous government and who allegedly had his house surrounded by troops. The BIA correctly pointed out, however, that "(n)o affidavit from the brother has been offered * * * and no details have been provided as to the alleged troop actions around his house, or as to the circumstances of his escape and exile" (id. at 19a). The court of appeals did not and could not take issue with the BIA's observations concerning these evidentiary deficiencies in respondent's materials. Second, the BIA pointed out (Pet. App. 20a) that respondent's own purported fear derived from his "relationships" with purported enemies of Ghana, yet respondent provided no details at to his relationship with most of those people. Moreover, the BIA observed (ibid.), respondent had not "adequately explained how his relationships with these individuals would result in persecution to himself should he return to his native land" (ibid. (emphasis added)). Again, the court did not dispute the BIA's observation about these evidentiary gaps. Nor could it. Neither the documentary material nor any other objective evidence offered by respondent states that the Rawlings government perceives the relatives and friends of its enemies as enemies themselves simply because of their relationship, or that it makes a practice of persecuting such relatives and friends as a means of retaliating against its enemies. And respondent does not allege that, apart from his "associations," the Ghanian government has any interest in him because of his own political opinions or activities. /33/ See, e.g., Haftlang, 790 F.2d at 144 (BIA not required to reopen where alien failed to explain how harassment suffered by his parents made him a likely victim of persecution); Shoaee v. INS, 704 F.2d 1079, 1084 n.5 (9th Cir. 1983) ("(I)t is pure conjecture to surmise the respondent would be persecuted because of his brother's particular situation in Iran.") (quoting BIA with approval). Third, the BIA addressed respondent's allegation that the Ghanian government would attempt to elicit information from him about his associates, and that "because of his associations he would be considered an 'advance man' for these individuals' attempt to stage a coup" (Pet. App. 20a). It observed, however, that respondent's "conjectures (were) speculative at best" and that "(h)is 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" (ibid.). The BIA's reasoning is clearly correct. Respondent provided no evidence to support his inherently implausible theory that his reluctant and much postponed return to Ghana would be considered that of an "advance man" for an attempted coup. This was at most a conclusory allegation, unsupported by any evidence. See Haftlang, 790 F.2d at 144 ("(R)equiring the Board to reopen deportation proceedings based upon * * * wholly conclusory evidence threatens to overwhelm the Board with such motions."). In short, the BIA's conclusion that respondent did not make out a prima facie case of eligibility for asylum or withholding of deportation is a reasoned one. It was based on a careful and accurate analysis of respondent's evidence. The BIA's denial of reopening because of respondent's insufficient evidence was therefore not an abuse of discretion. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General THOMAS W. HUSSEY DAVID J. KLINE MARSHALL TAMOR GOLDING Attorneys JUNE 1987 /1/ Respondent appears to concede (Br. in Opp. 9 n.1) that because of his convictions, he is ineligible for legalization under the Immigration Reform and Control Act of 1986 (Reform Act), Pub. L. No. 99-603, 100 Stat. 3359, even though he entered this country before January 1, 1982. See Section 245(a)(4)(B) and (d)(2)(B) (ii)(III) (added to the Immigration and Nationality Act by Pub. L. No. 99-603, Section 201(a), 100 Stat. 3394) (to be codified at 8 U.S.C. 1255A(a)(4)(B) and (d)(2)(B) (ii)(III)). /2/ "1 R." refers to the administrative record of the deportation proceeding; "2 R." refers to the administrative record of the motion to reopen. Ten copies of the entire administrative record have been lodged with this Court. /3/ 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 Pet. App. 16a n.1; 2 R. 25-26, 33. /4/ Baba is not the same brother whose home in Ghana was surrounded by governmenn troops. /5/ The BIA also noted the incongruous fact that Rawlings was not in power on the one occasion during the deportation proceedings in which respondent expressed an interest in applying for asylum (Pet. App. 16a n.1). See note 3, supra. /6/ Although this Court's decision in INS v. Cardoza-Fonseca, no. 85-782 (Mar. 9, 1987), had not yet been rendered, the BIA correctly recognized (Pet. App. 19a) that under Ninth Circuit precedent the "well-founded fear of persecution" standard applicable to asylum was a lower one than the "clear probability of persecution" standard applicable to withholding of deportation. See notes 12 & 13, infra. /7/ The BIA also noted that the narcotics offense of which respondent was convicted might be a "particularly serious crime," making him ineligible for withholding of deportation and asylum. The BIA did not decide the issue, however, because of its disposition of the case on other grounds. Pet. App. 20a n.2. /8/ The court affirmed the BIA's earlier holding that respondent was deportable because of his criminal record (Pet. App. 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. /9/ The court's statement of the issue overlooked the fact that the BIA had denied reopening on a second (and independent) basis, namely, respondent's failure to meet the regulatory requirements for reopening. The government had urged this alternative basis as a separate ground for affirming the BIA's decision (Gov't C.A. Br. 16-20). /10/ According to the court (Pet. App. 11a), the BIA "incorrectly found that all the considerations upon which (respondent) relied in making his asylum and prohibition against deportation claims were in existence at the time he made the determination not to apply for such relief." The court then cited the visit from the Ghanian official as the new fact that the BIA had purportedly ignored (ibid.). In fact, however, the BIA acknowledged that the visit from the official postdated the deportation hearing (id. at 16a). /11/ 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" (Pet. App. 11a). /12/ An alien seeking withholding of deportation must show that his "life or freedom would be threatened * * * on account of race, religion, nationality, membership in a particular social group, or political opinion" (8 U.S.C. 1253(h)(1)). Withholding of deportation ordinarily must be granted by the Attorney General if the alien establishes a "clear probability of persecution." See ibid.; INS v. Cardoza-Fonseca, No. 85-782 (Mar. 9, 1987), slip op. 7-8; INS v. Stevic, 467 U.S. 407, 426 (1984). But see 8 U.S.C. 1253(h)(2) (setting out various categories of aliens who are ineligible for withholding of deportation). /13/ An alien seeking asylum must show that he is a "refugee" within the meaning of Section 208(a) of the Refugee Act of 1980 (Refugee Act), 8 U.S.C. 1158(a), which is defined in 8 U.S.C. 1101(a)(42)(A) to mean a person who cannot or will not return to his country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion * * *." To be eligible for asylum, the alien must establish at least a "well-founded fear of persecution," a standard that is lower than the "clear probability of persecution" standard. See INS v. Cardoza-Fonseca, No. 85-782 (Mar. 9, 1987). Even if the alien establishes a well-founded fear, the Attorney General has discretion to deny asylum relief (slip op. 23, 28). /14/ For example, in enacting the Reform Act in 1986, Congress overruled the Court's holding in Phinpathya that any absence, however brief, breaks the continuity of physical presence for purposes of eligibility for suspension of deportation. See INS v. Hector, No. 86-21 (Nov. 17, 1986), slip op. 6 n.7. Congress expressed no dissatisfaction, however, with this Court's decisions (or with those of the various circuits) underscoring the broad discretion of the BIA in ruling on motions to reopen. Similarly, the Refugee Act contains no provision entitling aliens to reopen deportation proceedings in order to apply for asylum or withholding of deportation. /15/ See also 8 C.F.R. 103.5 (motions to reopen before the District Director); 8 C.F.R. 242.22 (motions to reopen before an immigration judge). /16/ Although the Reform Act overruled the holding in Phinpathya on another issue (see note 14, supra), the Court's observations about motions to reopen remain fully authoritative. /17/ Indeed, if anything, the requirements for reopening in the context of asylum are more exacting, since the alien must comply not only with Sections 3.2 and 3.8(a) but also with Section 208.11. See Duran v. INS, 756 F.2d 1338, 1339-1340 n.1 (9th Cir. 1985) (Section 208.11 requirements are in addition to those under Sections 3.2 and 3.8(a)); Sanchez v. INS, 707 F.2d 1523, 1526 & n.7 (D.C. Cir. 1983) (same); see also Chavez v. INS, 723 F.2d 1431, 1433 (9th Cir. 1984) (rejecting argument that under Section 208.11, a motion to reopen to apply for asylum should be granted upon a lesser showing than that required for other types of motions to reopen). /18/ Numerous agencies other than the INS also have regulatory provisions authorizing reopening. See, e.g., 18 C.F.R. 385.716 (Federal Energy Regulatory Commission); 29 C.F.R., 102.48 (National Labor Relations Board); 40 C.F.R. 209.7(b) (Environmental Protection Agency). /19/ These principles apply a fortiori in the present context, since immigration officials are given a particularly high degree of deference. See, e.g., INS v. Cardoza-Fonseca, No. 85-782 (Mar. 9, 1987), slip op. 23 ("(The) vesting of discretion in the Attorney General is quite typical in the immigration area."); INS v. Miranda, 459 U.S. 14, 19 (1982) (noting that "the INS is the agency primarily charged by Congress to implement the public policy underlying (the immigration) laws" and that "(a)ppropriate deference must be accorded its decisions"); Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976)) ("'(T)he power over aliens is of a political character and therefore subject only to narrow judicial review.'"); Mathews v. Diaz, 426 U.S. 67, 81-82 (1976); Kleindienst v. Mandel, 408 U.S. 753, 766-767 (1972). As a distinguished commentator has noted, the Act "is shot through with provisions that 'the Attorney General may, in his discretion,' do something for an alien. The underlying scheme of the Act is to avoid conferring legal rights upon aliens." 2 K. Davis, Administrative Law Treatise Section 8:10, at 200 (2d ed. 1979). /20/ A deportation proceeding, of course, is a civil matter. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-1039 (1984). It is "intended to provide a streamlined determination of eligibility to remiain in this country, nothing more" (ibid. (emphasis added)). /21/ In Sutton, the trial court denied the motion for a new trial based on newly discovered evidence (and denied a motion for an evidentiary hearing on the motion) without any discussion. 767 F.2d at 728-729. Cf. Jay v. Boyd, 351 U.S. 345 (1956). /22/ See Platero-Reymundo v. INS, 807 F.2d 865, 867 (9th Cir. 1987) (citing decision below and holding that the BIA was "correct" in ruling that the alien did not establish a prima facie showing of entitlement to a new grant of voluntary departure). /23/ Unfortunately, the present case is not an isolated instance of the Ninth Circuit's refusal to follow this Court's teachings in Jong Ha Wang, Phinpathya, and Rios-Pineda. In our petition for a writ of certiorari in INS v. Fazelihokmabad, No. 86-1008, petition for cert. pending, at 12-14 (a copy of which was previously provided for respondent), we discuss numerous cases in which the Ninth Circuit has (in our view, improperly) second-guessed the BIA. Indeed, several Ninth Circuit judges have stated that their circuit has repeatedly engaged in improper de novo review of the BIA's rulings. In a recent dissent from the denial of rehearing en banc in Saldana v. INS, 762 F.2d 824 (1985), amended, 785 F.2d 650 (1986) (holding that the BIA erred in denying a motion to reopen deportation proceedings), Judge Sneed, writing for himself and six other judges, criticized the standards of judicial review that have been adopted by various Ninth Circuit panels in immigration cases (793 F.2d 222 (1986)). Judge Sneed observed (id. at 224) that the court has "passed beyond insisting on a sensible number of tracks that will establish that true discretion was exercised" and instead has "entered upon the task of providing the narrow pathway down which an agency must walk." He pointed out (ibid.) that "(d)iscretion so confined ceases to be true discretion." Instead, "(t)he agency in which discretion once was vested by this means becomes the puppet of the court" (ibid.). After discussing a number of specific Ninth Circuit immigration cases, Judge Sneed concluded (id. at 225) that the Ninth Circuit has "approach(ed) de novo review" and that its decisions have been contrary to the immigration statutes and Supreme Court precedents. /24/ Respondent conceded below that the BIA has discretion in ruling on motions to reopen and cited Rios-Pineda as the governing authority (Abudu C.A. Br. 25). /25/ The court also relied (Pet. App. 7a) on a law review article, Levin, Scope-of-Review Doctrine Restated: An Administrative Law Section Report, 38 Admin. L. Rev. 239, 268 (1986). But the cited page of the article was in a section discussing issues of law (id. at 267-270). And even as to pure questions of law, the author noted (id. at 268) that "(a) clear majority of recent Supreme Court cases involving interpretation of regulatory legislation have adhered to the policy of giving weight to agency views." The court also cited 5 U.S.C. 706(2)(A). But that provision, the "arbitrary and capricious" standard of review contained in the Administrative Procedure Act, provides no support for a standard of de novo review of the BIA's ruling on a motion to reopen. Finally, the court cited Larimi v. INS, 782 F.2d 1494 (9th Cir. 1986). The Larimi court made the unexceptional and obvious point that the BIA's denial of a motion to reopen for failure to make out a prima facie case "is always an appropriate exercise of discretion if the determination concerning the prima facie case is correct" (id. at 1496). The court did not state the converse point, i.e., that a reviewing court's disagreement with the BIA over whether a prima facie case was established is necessarily reversible error. To the contrary, the court recognized that the proper standard was abuse of discretion (ibid.). /26/ As we have pointed out (note 9, supra), the court of appeals did not consider the BIA's first basis for denying reopening and, accordingly, erroneously stated (Pet. App. 6a) that the sole issue was whether respondent made out a prima facie case for reopening. /27/ Alhassan, an official with the Rawlings regime, had previously held a high position with a former Ghanian government, and, as a result, had spent a year in jail (2 R. 29). Nevertheless, after his release, he "recanted his previous ties and joined the Rawlings' regime" (ibid.). Respondent's own evidence thus undermines any assumption that even officials of former governments will inevitably suffer persecution. /28/ Respondent claimed that his brother had given the telephone number to the Ghanian official in order to "avoid suspicion, and because (the brother) knew that as a physician (respondent) would be easy to find * * *" (2 r. 29). The fact that respondent's own brother freely disclosed respondent's whereabouts to the official casts doubt on the assertion that respondent is targeted for persecution. /29/ Significantly, the visit occurred in the Spring of 1984 (2 R. 29), but respondent did not file his motion to reopen until February 1985 (2 R. 20). Apparently, the purported threatening nature of the visit was not immediately apparent to respondent. /30/ Indeed, information from public sources flatly contradicts respondent's assertion. In 1981, there was one physician for every 6,760 persons in Ghana, compared, for example, with one physician for every 500 persons in the United States during that same year. World Bank, World Development Report: 1986, at 234, 235 (Oxford Univ. Press). In 1983, the life expectancy at birth in Ghana was 50.3 years for males and 53.7 years for females. 1 G. Kurian, Encyclopedia of the Third World at 743 (3d ed. 1987). Ghana has numerous "(m)ajor prevalent diseases," and its "(h)ealth problems are complicated by nutritional deficiencies, disease-carrying insects, water pollution and poor sanitation." Ibid. /31/ Respondent acknowledged that he was "close to (Hamidu's) daughter who lives in the greater Los Angeles area" (2 R. 27), the same city in which respondent resides (2 R. 21). Presumably, if she had been questioned by Alhassan, she would have told respondent. Similarly, it is reasonable to assume that Baba would have told respondent if Alhassan had questioned him concerning the whereabouts of Hamidu or the exiled brother. /32/ Indeed, were it otherwise, aliens would obviously be encouraged to inundate the courts of appeals with requests for such review. The nation's 67 immigration judges and the BIA adjudicate tens of thousands of deportation cases each year. During the six-month period between October 1, 1986, and March 31, 1987, the BIA decided 114 motions to reopen (not including appeals from denials of such motions by immigration judges). During that same period, the immigration judges decided close to 1500 motions to reopen. The rules adopted by the court below would almost certainly encourage many more aliens to file such motions and to seek judicial review if denied relief. /33/ Indeed, it is not even clear from his affidavit whether respondent holds any strong political views at all.