Antonin Scalia

“ This misses the whole point of the Abudu footnote, which is that since reopening for an asylum request automatically reopens for a withholding claim; and since the other requirements for withholding are either the same as or more stringent than the requirements for asylum; the single more rigorous asylum requirement-the "reasonable explanation" provision of § 208.11-will normally, as a practical matter, decide not only whether reopening for asylum but also whether reopening for withholding will be granted. ”

“ The Court of Appeals also concluded that an evidentiary hearing is always necessary for withholding claims because the types of issues they present-for example, whether an alien's serious crimes were "political"-"raise formidable questions of fact that cannot be adequately resolved in the absence of an evidentiary record." ”

“ Our statement that that sort of "leap-over" determination could not be made for withholding was simply a recognition of the fact that the Attorney General has no discretion as to that relief. Nothing in Abudu suggests, however, that reopening may not be denied with respect to withholding on the basis of a determination, clearly supported by the existing record, that the alien is statutorily ineligible for relief. ”

“ The Attorney General argued, and the INS repeats the argument here, that " [t] he ultimate decision in an administrative process cannot itself constitute 'new' evidence to justify reopening," since " [i] f an adverse decision were sufficient, there could never be finality in the process." That would be true only if a change of outcome on appeal were always a basis for reopening, but the question here is whether it may sometimes be. There is obviously no great practical difficulty in that. ”