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INS V. ABUDU, 485 U. S. 94 (1988)

U.S. Supreme Court

INS v. Abudu, 485 U.S. 94 (1988)

Immigration and Naturalization Service v. Abudu

No. 86-1128

Argued December 1, 1987

Decided March 1, 1988

485 U.S. 94


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.


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

Page 485 U. S. 95

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. 485 U. S. 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. 485 U. S. 110-111.

802 F.2d 1096, 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.

Page 485 U. S. 96

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