author: Justice Brennan

text:
    BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. GALBREATH
    No. 86-1146.
    Argued December 9, 1987
    Decided February 24, 1988
    Brennan, 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.

      Richard J. Lazarus argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, William G. Ranter, and Jeffrica Jenkins Lee.

      Anthony W. Bartels argued the cause and filed a brief for respondent.
   Justice Brennan

delivered the opinion of the Court.

The question before us is whether, under Title XVI of the Social Security Act, a district court has the authority to order the Secretary of Health and Human Services to withhold a portion of past-due supplemental security income benefits for the payment of attorney’s fees.

After the Secretary of Health and Human Services denied Mary Alice Galbreath’s application for supplemental security income (SSI) benefits under Title XVI of the Social Security Act, she appealed to a Federal District Court. The District Court reversed the denial, and the Secretary accordingly paid Galbreath her full $7,954 in past-due benefits. Galbreath’s attorney, Anthony W. Bartels, then moved for attorney’s fees equal to 25% of the past-due benefits. The District Court determined that the amount requested was reasonable and, relying on 42 U. S. C. § 406(b)(1), ordered the Secretary “to compute, certify, and pay” Bartels his requested fee of $1,988.50 out of the the past-due benefits awarded Galbreath. The Secretary appealed, arguing that § 406(b)(1) applies only to cases under Title II of the Social Security'Act and that the relevant statutes and regulations do not permit withholding past-due SSI benefits for payment of attorney’s fees in Title XVI cases. The Court of Appeals for the Eighth Circuit affirmed. 799 F. 2d 370 (1986). We granted certiorari to resolve a conflict among the Courts of Appeals, 481 U. S. 1036 (1987), and now reverse.

Title II is an insurance program. Enacted in 1935, it provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need. See 42 U. S. C. §§ 403, 423 (1982 ed. and Supp. III). Title XVI is a welfare program. Enacted in 1972, it provides SSI benefits to financially needy individuals who are aged, blind, or disabled regardless of their insured status. See 42 U. S. C. § 1382(a) (1982 ed. and Supp. III).

Until 1965, Title II contained no provision expressly authorizing a district court to award fees to a claimant’s attorney. In 1965, however, the Court of Appeals for the Fifth Circuit held that 42 U. S. C. § 405(g) implicitly authorized district courts to order the payment of attorney’s fees out of past-due benefits. See Celebrezze v. Sparks, 342 F. 2d 286 (1965). Under 42 U. S. C. § 405(g), a court reviewing a decision of the Secretary has the power to enter “a judgment affirming, modifying, or reversing the decision of the Secretary.” The court in Sparks reasoned that where a statute gives a court jurisdiction, it must be presumed, absent any indication to the contrary, that the court was intended to exercise all the powers of a court, including the power to provide for payment of attorney’s fees out of any recovery. 342 F. 2d, at 288-289. Later in 1965, Congress effectively codified Sparks by adding a new subsection (b)(1) to 42 U. S. C. § 406 that allows withholding of past-due benefits to pay attorney’s fees incurred in judicial proceedings under Title II. Social Security Amendments of 1965, Pub. L. 89-97, § 332, 79 Stat. 403. Subsection (b)(1) provides:

“Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits.”

In 1968, Congress amended 42 U. S. C. § 406(a) by adding two sentences giving the Secretary similar withholding authority to pay attorney’s fees incurred in Title II administrative proceedings. Social Security Amendments of 1967, Pub. L. 90-248, § 173, 81 Stat. 877.

Thus, the District Court’s order in this case would clearly be valid if this were a Title II case. When Congress enacted Title XVI in 1972, however, it provided no similar authority to withhold past-due benefits for attorney’s fees. This omission is particularly telling because Congress incorporated many other provisions of Title II into Title XVI. In particular, while incorporating almost every other provision of §406 into Title XVI, Congress left out the provisions in § 406(b)(1) and § 406(a) that authorized judicial withholding and administrative withholding. Social Security Amendments of 1972, Pub. L. 92-603, § 301, 86 Stat. 1476-1477, codified at 42 U. S. C. § 1383(d)(2). This omission does not appear to have been inadvertent. Indeed, with respect to administrative proceedings, the House Report specifically noted and explained the omission of withholding authority by twice stating:

“Where an individual who has requested a hearing is represented before the Secretary by an attorney . . . there would be no withholding of attorney fees from such individual’s benefits. Your committee believes that to withhold such fees would be contrary to the purpose of the program.” H. R. Rep. No. 92-231, pp. 156, 187 (1971).

The Senate Report also indicates the omission of administrative withholding authority was intentional. See S. Rep. No. 92-1230, p. 392 (1972) (“Where an individual who has requested a hearing is represented before the Secretary by an attorney . . . there would be no withholding of attorney fees from the individual’s benefits”). Although the legislative history offered no explanation specifically linked to the omission of judicial withholding authority, it is fair to assume that this omission also reflected Congress’ view that withholding past-due SSI benefits would be inconsistent with the purpose of the program. Given the extreme financial need of SSI beneficiaries, this view is not irrational. Nor would it be odd for Congress to conclude that withholding past-due benefits from financially needy individuals under Title XVI would cause greater hardship than withholding past-due benefits from insured individuals under Title II. We thus conclude that, as originally enacted, Title XVI evidenced a congressional intent not to allow the withholding of past-due SSI benefits to pay attorney’s fees incurred in judicial proceedings.

Respondent and the courts finding judicial withholding authority under Title XVI do not dispute the conclusion that Congress intended to disallow judicial withholding when it enacted Title XVI in 1972. Rather, they contend that courts possess inherent authority to order withholding and that a 1976 amendment to 42 U. S. C. § 1383(c)(3) — the judicial review provision of Title XVI — demonstrates Congress’ intent to allow that authority to be exercised. As enacted in 1972, 42 U. S. C. § 1383(c)(3) (1970 ed., Supp. IV) provided:

“The final determination of the Secretary after a hearing under paragraph (1) shall be,subject to judicial review as provided in Section 405(g) of this title to the same extent as the Secretary’s final determinations under Section 405 of this title; except that the determination of the Secretary after such hearing as to any fact shall be final and conclusive and not subject to review by any court.” Pub. L. 92-603, § 301, 86 Stat. 1476 (emphasis added).

The 1976 amendment simply deleted the italicized portion of the statute. Act of Jan. 2, 1976, Pub. L. 94-202, 89 Stat. 1135. The clear and expressed intent was to make the Secretary’s factual findings under Title XVI subject to judicial review, just as they were under Title II. Nothing in the legislative history mentions withholding benefits to pay attorney’s fees. The Court of Appeals below and other courts have nonetheless reasoned that, because Congress intended to make judicial review under Title XVI the same as judicial review under Title II, courts adjudicating Title XVI cases must have the same inherent authority to order withholding under § 405(g) that, under Sparks, courts adjudicating Title II cases had even before § 406(b)(1) was added.

We find this analysis unpersuasive. On its face, the deletion of a provision making factual findings unreviewable bears no apparent relation to whether withholding of past-due benefits should be allowed. Indeed, the deletion does not even purport to address eases involving legal, rather than factual, disputes, and we can hardly imagine that Congress meant to change the ban on withholding without addressing both kinds of cases. The courts that have concluded that the 1976 amendment authorizes judicial withholding rely on statements in the legislative history indicating Congress’ intent to make judicial review under Title II and Title XVI “virtually identical,” to “provide the same rights to . . . judicial review” under both Titles, and “to apply the same rules of judicial review to Title XVI cases as apply to Title II cases.” S. Rep. No. 94-550, pp. 1, 3-4 (1975). None of these statements suggests that Congress intended to allow withholding of past-due benefits. Rather, they simply state the obvious point that removing the provision barring review under Title XVI of the Secretary’s factual determinations makes the scope of issues reviewable under Title XVI and Title II the same. Even assuming courts have inherent authority under Sparks to withhold a portion of past-due SSI benefits to pay attorney’s fees in Title XVI cases, we see no reason why Congress cannot divest courts of that authority if it so chooses. In originally enacting Title XVI, Congress manifested its intent, by selective incorporation and legislative history, to disallow the withholding of past-due SSI benefits to pay attorney’s fees incurred in Title XVI cases. Until Congress sees fit to override its original decision, by amending Title XVI in a way that manifests an intent to allow withholding, that original decision stands.

The judgment of the Court of Appeals is

Reversed.

Justice Kennedy took no part in the consideration or decision of this case.

       Compare Howard v. Bowen, 823 F. 2d 185 (CA7 1987) (withholding not permitted); McCarthy v. Secretary of Health and Human Services, 793 F. 2d 741 (CA6 1986) (same); Motley v. Heckler, 800 F. 2d 1253 (CA4 1986) (same), with Clay v. Secretary of Health and Human Services, 823 F. 2d 679 (CA1 1987) (withholding is permitted); Reid v. Heckler, 735 F. 2d 757 (CA3 1984) (same); and the decision below.


source: Caselaw Access Project

author: Justice White

license: Public Domain

text:
    PERALTA v. HEIGHTS MEDICAL CENTER, INC., DBA HEIGHTS HOSPITAL, et al.
    No. 86-1430.
    Argued November 30, 1987
    Decided February 24, 1988

      White, 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.

      Bruce Ian Schimmel argued the cause for appellant. With him on the briefs were Stephen P. Dillon and Michael J. Kator.

      Jack E. Urquhart argued the cause for appellees. With him on the brief were Jack G. Carnegie, Paul A. Share, and Emil T. Bayko.

        Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and Javier P. Guajardo, Assistant Attorney General, filed a brief for the State of Texas as amicus curiae.

   Justice White

delivered the opinion of the Court.

Heights Medical Center, Inc. (hereafter appellee), sued appellant Peralta in February 1982 to recover some $5,600 allegedly due under appellant’s guarantee of a hospital debt incurred by one of his employees. Citation issued, the return showing personal, but untimely, service. Appellant did not appear or answer, and on July 20, 1982, default judgment was entered for the amount claimed, plus attorney’s fees and costs.

In June 1984, appellant began a bill of review proceeding in the Texas courts to set aside the default judgment and obtain other relief. In the second amended petition, it was alleged that the return of service itself showed a defective service and that appellant in fact had not been personally served at all. The judgment was therefore void under Texas law. It was also alleged that the judgment was abstracted and recorded in the county real property records, thereby creating a cloud on appellant’s title, that a writ of attachment was issued, and that, unbeknownst to him, his real property was sold to satisfy the judgment and for much less than its true value. Appellant prayed that the default judgment be vacated, the abstract of judgment be expunged from the county real property records, the constable’s sale be voided, and that judgment for damages be entered against the Medical Center and Mr. and Mrs. Paul-Seng-Ngan Chen, the purchasers at the constable’s sale and appellees here.

Appellee filed a motion for summary judgment asserting that in a bill of review proceeding such as appellant filed, it must be shown that petitioner had a meritorious defense to the action in which judgment had been entered, that petitioner was prevented from proving his defense by the fraud, accident, or wrongful act of the opposing party, and that there had been no fault or negligence on petitioner’s part. Although it was assumed for the purposes of summary judgment that there had been defective service and that this lapse excused proof of the second and third requirement for obtaining a bill of review, it was assertedly necessary, nevertheless, to show a meritorious defense, which appellant had conceded he did not have. In response to the motion, appellant repeated the allegations in his petition and filed an affidavit denying that he had ever been personally served or had ever been notified of the entry of default judgment or of the sale of his property. Appellee’s motion for summary judgment was granted. Record 54.

Appellant’s motion for rehearing for the first time asserted federal constitutional claims under the Fourteenth Amendment. Appellee answered that under Texas law there were three avenues by which to attack a judgment on the grounds that it was void for want of service: an appeal within 30 days of the judgment; by writ of error within 6 months; and by bill of review. It being too late to seek either of the first two courses, appellee urged that the bill of review was the only route then open to appellant, and that route was not available to him — even assuming he did not receive notice of the action filed against him — since he had no meritorious defense. Appellee denied that the meritorious-defense requirement threatened any federal constitutional rights. Rehearing was denied.

On appeal to the Texas Court of Appeals, appellant repeated his claims that in the absence of valid service of process and notice of the judgment, showing a meritorious defense was not necessary under Texas law and requiring it violated the Fourteenth Amendment. Appellee argued that despite the allegation of no service and no notice of judgment, the meritorious-defense requirement prevented relief and that even though the bill of review was the only avenue of relief, the State could constitutionally insist on the showing of a meritorious defense. The Court of Appeals affirmed, reciting the three elements essential for granting a bill of review and holding that a meritorious defense must be shown whether there had been proper service and notice or not. 715 S. W. 2d 721 (1986). The court rejected the due process challenge because it viewed the meritorious-defense requirement as “not onerous.” Id., at 722. Rehearing was denied, as was the application for a writ of error filed with the Texas Supreme Court, that court noting, “No Reversible Error.” App. to Juris. Statement 2a.

Because the holding below appeared problematic in light of our precedents, we noted probable jurisdiction. 481 U. S. 1067 (1987). The case was briefed and argued, and we now reverse.

In opposition to summary judgment, appellant denied that he had been personally served and that he had notice of the judgment. The case proceeded through the Texas courts on that basis, and it is not denied by appellee that under our cases, a judgment entered without notice or service is constitutionally infirm. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). Failure to give notice violates “the most rudimentary demands of due process of law.” Armstrong v. Manzo, 380 U. S. 545, 550 (1965). See also World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291 (1980); Mathews v. Eldridge, 424 U. S. 319, 333 (1976); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 110 (1969); Pennoyer v. Neff, 95 U. S. 714, 733 (1878).

The Texas courts nevertheless held, as appellee urged them to do, that to have the judgment set aside, appellant was required to show that he had a meritorious defense, apparently on the ground that without a defense, the same judgment would again be entered on retrial and hence appellant had suffered no harm from the judgment entered without notice. But this reasoning is untenable. As appellant asserts, had he had notice of the suit, he might have impleaded the employee whose debt had been guaranteed, worked out a settlement, or paid the debt. He would also have preferred to sell his property himself in order to raise funds rather than to suffer it sold at a constable’s auction.

Nor is there any doubt that the entry of the judgment itself had serious consequences. It is not denied that the judgment was entered on the county records, became a lien on appellant’s property, and was the basis for issuance of a writ of execution under which appellant’s property was promptly sold without notice. Even if no execution sale had yet occurred, the lien encumbered the property and impaired appellant’s ability to mortgage or alienate it; and state procedures for creating and enforcing such liens are subject to the strictures of due process. See Mitchell v. W. T. Grant Co., 416 U. S. 600, 604 (1974); Hodge v. Muscatine County, 196 U. S. 276, 281 (1905). Here, we assume that the judgment against him and the ensuing consequences occurred without notice to appellant, notice at a meaningful time and in a meaningful manner that would have given him an opportunity to be heard. Armstrong v. Manzo, supra, at 552.

In this Court, appellee insists that appellant has other remedies to escape the consequences of an invalid judgment and should be left to pursue those avenues. This argument, which is made for the first time in this litigation and which appellant disputes, is apparently offered as an alternative ground for affirming the judgment below. We are not required, however, to entertain such submissions, particularly when there is no indication that they were raised below, and we are especially disinclined to become involved in resolving disputes about Texas law that should have been presented to the state courts. We shall deal with the case as it came here and affirm or reverse based on the ground relied on below.

Appellee’s position below was that appellant either had a remedy by bill of review or not at all, and that that remedy was unavailable since no meritorious defense had been shown. It appears to us that the Texas courts decided the case on this basis. There was no mention of other remedies, no suggestion that appellant had sought the wrong remedy; and it seems obvious that had a meritorious defense been shown, and the allegations on service and notice found to be true, the offending judgment would have been vacated. The Texas court held that the default judgment must stand absent a showing of a meritorious defense to the action in which judgment was entered without proper notice to appellant, a judgment that had substantial adverse consequences to appellant. By reason of the Due Process Clause of the Fourteenth Amendment, that holding is plainly infirm.

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, “it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.” Coe v. Armour Fertilizer Works, 237 U. S. 413, 424 (1915). As we observed in Armstrong v. Manzo, 380 U. S., at 552, only “wip[ing] the slate clean . . . would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.” The Due Process Clause demands no less in this case.

The judgment below is

Reversed.

Justice Kennedy took no part in the consideration or decision of this case.

         Texas Rule of Civil Procedure 329b(f) provides:
      “On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court’s plenary power had expired.”

       The petition alleged that the record contained a return of service of process, showing that service was effected more than 90 days after its issuance, contrary to Texas Rule of Civil Procedure 101 (repealed effective Jan. 1, 1988). Record 41. The parties agree that under Texas law at the time of this suit, the citation lost its official status after 90 days. Texas courts have held that service after the 90th day is a nullity, depriving the court of personal jurisdiction over the defendant. Lewis v. Lewis, 667 S. W. 2d 910, 911 (Tex. App. 1984); Kem v. Krueger, 626 S. W. 2d 143, 144 (Tex. App. 1981); Lemothe v. Cimbalista, 236 S. W. 2d 681, 682 (Tex. Civ. App. 1951).

       Texas Rule of Civil Procedure 239(a) requires that notice of default judgment be mailed to the defendant at the address which the party taking the judgment is required to file with the clerk. Appellant argued in the Court of Appeals that neither of these requirements had been fulfilled.

       Further examination of the record indicates that appellee was correct in challenging our appellate jurisdiction, Motion to Dismiss 3-4, because there was no explicit challenge to the constitutionality of Texas Rule of Civil Procedure 329b(f) and because the Texas courts did not pass on any such issue. Charleston Federal Savings & Loan Assn. v. Alderson, 324 U. S. 182, 185 (1945); Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 562, n. 4 (1980). Treating the filed papers as a petition for certiorari, however, we grant the petition. We nevertheless continue to refer to Peralta and Heights Medical Center as appellant and appellee.

       Appellee conceded at oral argument that for purposes of this decision, we must assume the truth of appellant’s claims that he was never served with process. Tr. of Oral Arg. 39.

       Under Texas law a judgment entitles the judgment creditor to a lien on the debtor’s property. As a matter of right and without notice and hearing, a judgment creditor can have the judgment abstracted and recorded. Tex. Prop. Code Ann. §§ 52.002, 52.004(a) (1984 and Supp. 1988). Such a recorded abstract “constitutes a lien on the real property of the defendant located in the county in which the abstract is recorded and indexed, including real property acquired after such recording and indexing,” § 52.001, and the holder of a judgment lien will have a superior interest to a later purchaser. Masterson v. Adams, 197 S. W. 2d 154, 156 (Tex. Civ. App. 1946).


author: Justice Blackmun

text:
    UNITED STATES v. LOUISIANA et al. (ALABAMA AND MISSISSIPPI BOUNDARY CASE)
    No. 9, Orig.
    Argued January 11, 1988
    Decided March 1, 1988

      Blackmun, J., delivered the opinion of the Court, in which all other Members joined, except Marshall and Kennedy, JJ., who took no part in the consideration or decision of the case.

      Jim R. Bruce, Special Assistant Attorney General, argued the cause for defendant State of Mississippi. With him on the brief was Edwin Lloyd Pittman, Attorney General.

      Jeffrey P. Minear argued the cause for the United States. On the brief were Solicitor General Fried, Acting Assistant Attorney General Marzulla, Deputy Solicitor General Wallace, and Donald A. Carr.

        Grace Berg Schaible, Attorney General, G. Thomas Koester, Assistant Attorney General, and John Briscoe filed a brief for the State of Alaska as amicus curiae.

   Justice Blackmun

delivered the opinion of the Court.

In the Court’s most recent opinion in this extended litigation, see 470 U. S. 93 (1985), Mississippi Sound was determined to be a historic bay under the Convention on the Territorial Sea and the Contiguous Zone, [1964] 15 U. S. T. (pt. 2) 1607, T. I. A. S. No. 5639. The waters of that Sound, therefore, are inland waters, and Alabama and Mississippi own their respective portions of the bed of Mississippi Sound. The Court, as is customary in cases of this kind, stated:

“The parties are directed promptly to submit to the Special Master a proposed appropriate decree for this Court’s consideration; if the parties are unable to agree upon the form of the decree, each shall submit its proposal to the Master for his consideration and recommendation.” 470 U. S., at 115.

Jurisdiction was retained to entertain such further proceedings as might be determined to be necessary or advisable to effectuate and supplement the decree and to determine the rights of the parties. Ibid.

The Supplemental Report dated March 16, 1987, of the Special Master, the Honorable Walter P. Armstrong, Jr., now has been filed and is before us. The Master notes therein, p. 2, that no disagreement remains among the parties with respect to the coastline and seaward boundary of Alabama. That much has been decided and is clear. The Master further notes, however, id., at 3, that Mississippi and the United States are in disagreement as to the “seaward boundary” of Mississippi “at two points.” Attached to the Report, as exhibits, are forms of a supplemental decree proposed respectively by the United States and by Mississippi. Id., at 31 and 38. The Special Master ends his Report with conclusions and recommendations. Id., at 26. Mississippi has noted exceptions. The United States is in opposition to those exceptions. Alabama at this point, of course, stands mute. Briefs have been filed and oral argument has been presented.

The Special Master concluded (a) that the decree proposed by Mississippi should not. be entered, ibid., and (b) that, while “the line proposed by the United States,” would be “a preferable solution,” it “would amount to a modification of the Court’s opinion of February 26, 1985,” because it “would be beyond the scope of the reference” to the Master. Id., at 27. He has recommended that the Court “enter an order directing the parties to prepare and submit to the Special Master a decree” defining the seaward boundaries of Alabama and Mississippi “to the extent agreed upon”; defining Mississippi’s seaward boundary between Petit Bois Island and Horn Island “as proposed in the decree submitted by the United States”; and, despite his expressed reservation noted above, defining the portion of Mississippi’s seaward boundary from West Ship Island westward as a described line intersecting at its westernmost point with the already-determined Louisiana border. Ibid.

I

The specific proceeding that culminated in this Court’s opinion of February 26, 1985, reported at 470 U. S. 93, ‘concerned, we thought, only Mississippi Sound and its boundary. See id., at 94; Tr. of Oral Arg. 3. The Special Master’s Report and his stated reservation as to the scope of the reference to him also appear to reflect that understanding. But in its. argument to the Master and in its present exceptions, Mississippi seeks to extend the scope of this litigation to include its interest in seabed south of Mississippi Sound. The State’s current arguments bear little relation to earlier proceedings unless one engrafts upon our 1985 opinion, and upon our direction therein for a proposed decree fixing the southern boundary of Mississippi Sound, an implication that Mississippi’s rights, if any, south of that Sound’s boundary are to be definitively determined in this phase of the litigation.

To the south of the western part of Mississippi Sound lies Chandeleur Sound, a body of water east of Louisiana’s mainland and west of the offshore Chandeleur Islands that run north and south. Chandeleur Sound and Mississippi Sound generally lie perpendicular to each other. They are separated by Cat Island, West Ship Island, and East Ship Island. The latter two at one time formed a single island but became divided by hurricane action some years ago.

An earlier phase of this litigation led to the entry of a supplemental decree issued June 16, 1975, see United States v. Louisiana (Louisiana Boundary Case), 422 U. S. 13, fixing the coastline (baseline) of Louisiana pursuant to the Court’s decision of March 17, 1975, see 420 U. S. 529. Embodied in that decree is a line then stipulated to by the United States and the State of Louisiana delimiting Louisiana’s interest in Chandeleur Sound north of the Chandeleur Islands. The Solicitor General advises us that the United States, in this litigation with Mississippi, offered to recognize Mississippi’s rights “in the vicinity of Chandeleur Sound on the basis of an extension of the line stipulated” in the litigation between the United States and Louisiana (a line running from the location at that time of the northernmost of the Chandeleur Islands to a point near the middle of West Ship Island), but that Mississippi rejected that offer. Brief for United States 2-3. Mississippi acknowledges the rejection. Tr. of Oral Arg. 6. Thus, that easy solution to the controversy between the United States and Mississippi as to waters south of Mississippi Sound and in the vicinity of Chandeleur Sound proved to be unattainable. What remains in dispute is an area of about 150 square miles. Id., at 16.

II

As has been stated above, the current phase of the litigation up to this point, so far as Mississippi is concerned, has dealt only with Mississippi Sound. It has not focused on Mississippi’s interest south of Mississippi Sound. This being so, we sympathize with the Special Master’s unease about the scope of the reference to him. With the case in its present somewhat confused posture, we are unwilling on the present record to determine the extent of Mississippi’s rights south of Mississippi Sound without the parties’ complete agreement and the Special Master’s ready acquiescence.

Because Mississippi’s exceptions to the Special Master’s Supplemental Report do not relate at all to Mississippi Sound, and do not contest the validity of that Sound’s closing lines recommended by' the Master, we are left with a situation where all parties are in agreement as to that Sound and its boundary. The exceptions of Mississippi, as presented to us at this time, therefore are overruled but without prejudice to the advancement of such claims as any party might have with respect to the area south of Mississippi Sound and in the vicinity of Chandeleur Sound in an appropriate separate chapter of these proceedings. The Supplemental Report dated March 16, 1987, of the Special Master and his recommendations, to the extent — and only to the extent — they are consistent with this opinion, are adopted and confirmed.

The parties once again are directed promptly to submit to the Special Master a proposed appropriate decree for this Court’s consideration defining the claims of Alabama and Mississippi with respect to Mississippi Sound. If the parties are unable to agree upon the form of the decree, each shall submit its proposal to the Special Master for his consideration and recommendation. Each party shall bear its own costs; the actual expenses of the Special Master incurred with respect to this litigation since February 26, 1985, shall.be borne half by the United States and half by Mississippi.

The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such -writs as from time to time may be determined to be necessary or advisable to effectuate and supplement the forthcoming decree and to determine the rights of the respective parties.

In order to facilitate the resolution of any question that might remain as to Chandeleur Sound, leave is granted the State of Mississippi and the United States, respectively, without further motion, to file a complaint with this Court setting forth its claim to any undecided portion of Chandeleur Sound. The complaint may be filed within 60 days of the date this opinion is filed. An opposing party shall have 45 days to respond. It is expected that all concerned -will cooperate in expediting this remaining aspect of this phase of the litigation.

It is so ordered.

Justice Marshall and Justice Kennedy took no part in the consideration or decision of this litigation.

       We necessarily assume that, by his repeated use of the term “seaward boundary,” the Master is referring to Mississippi’s coastline and not to its ultimate offshore boundary.


author: Justice Stevens

text:
    IMMIGRATION AND NATURALIZATION SERVICE v. ABUDU
    No. 86-1128.
    Argued December 1, 1987
    Decided March 1, 1988

      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 argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, and Marshall Tamor Golding.

      Dorothy A. Harper argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging affirmance were filed for the American Immigration Lawyers Association by Robert D. Baizer; and for Centro Presente, Inc., et al. by Alan J. Rom and Robert Rubin.

        Arthur C. Helton filed a brief for the Lawyers Committee for Human Rights as amicus curiae.

   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, 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. 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 longtime 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), 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. 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, but reversed the order denying the motion to reopen and remanded for an evidentiary hearing on the asylum and withholding of deportation claims. In support of the latter holding, the court began by noting that although the BIA has “wide discretion” to deny motions to reopen, and although such denials are normally reviewed only for “abuse of discretion,” in this case “the sole issue” was whether respondent had “presented a prima facie case for reopening.” 802 F. 2d, at 1099-1100. The court stated that “[w]hen the Board restricts its decision [refusing to reopen] to whether the alien has established a prima facie case it is only this basis for its decision that we review.” Id., at 1100 (internal quotation omitted). The court then reasoned:

“Upon motion to reopen, the Board must draw reasonable inferences from the facts in favor of the petitioner. A motion to reopen is analogous to a motion for summary judgment; each is accompanied by affidavits and other evidentiary material and may be granted if the motion presents ‘proof that will support the desired findings [of a prima facie case] . . . until it is contradicted or overruled by other evidence.’ Maroufi v. INS, 772 F. 2d 597, 599 (9th Cir. 1985). In both cases, inferences are to be drawn in favor of the party whose entitlement to further proceedings is at stake: the non-moving party under Fed. R. Civ. P. 56 and the alien seeking reopening under 8 CFR 3.2. See, e. g., U. S. v. Diebold, Inc., 369 U. S. 654, 655 (1962) (‘choice of inferences to be drawn from the subsidiary facts contained in the affidavits . . . submitted [is inappropriate]. On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.’) . . .
“[F]or 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.’ Hernandez-Ortiz [v. INS], 777 F. 2d [509,] 514 [CA9 1985].
“While the visit from the Ghanian official could be viewed as benign, it could also be viewed, as Dr. Abudu suggests, as threatening. Viewing the inferences in favor of the petitioner as we must, we conclude that the affidavits made out a prima facie case of well-founded fear of persecution.” Id., at 1101-1102 (citations omitted).

Although the BIA had denied respondent’s motion to reopen both on the ground that he had failed to make out a prima facie case for asylum and on the ground that he had failed to explain reasonably his decision not to request asylum in the first instance, and although the Government had contended in the Court of Appeals that “petitioner neither offered a reasonable explanation for the belatedness of his application for asylum and withholding of deportation nor made a prima facie showing of entitlement to such relief,” Brief for Respondent in Nos. 84-7686 and 86-7075 (CA9), p. 16 (emphasis added), the Court of Appeals did not discuss, as a separate matter, the “failure to explain” ground in the BIA’s decision. The Court of Appeals’ statement that “the sole issue [in this case] is whether petitioner presented a prima facie case for reopening,” 802 F. 2d, at 1100, reveals that the court seems to have blended the two grounds into one.

The petition for certiorari described this case as involving “the extent to which a reviewing court is required to defer to the BIA’s ruling on a motion to reopen deportation proceedings.” Pet. for Cert. 8. Like the Court of Appeals’ opinion, the questions presented, though, did not clearly separate the two grounds upon which the BIA had denied respondent’s motion to reopen, and respondent reported to us, incorrectly, that “the sole question before the Ninth Circuit was whether the Respondent had established a prima facie case of a well founded fear of persecution.” Brief in Opposition 20. Petitioner’s reply memorandum, though, eliminated any possible doubts about the issue it was asking us to resolve:

“[T]he important question for present purposes [is] 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 CFR 3.2, 208.11).” Reply Memorandum for Petitioner 2, n. 2.

Thus, we granted certiorari, 480 U. S. 930 (1987), not to decide the substantive issues of what constitutes a prima facie case for establishing eligibility for asylum on the basis of a well-founded fear .of persecution, or of what standard of review applies, either initially or on motion to reopen, when the BIA rests its grant or denial of relief squarely on prima facie case grounds, but rather to determine the standard a Court of Appeals must apply when reviewing the BIA’s conclusion that an alien has not reasonably explained his failure to assert his asylum claim at the outset.

II

There are at least three independent grounds on which the BIA may deny a motion to reopen. First, it may hold that the movant has not established a prima facie case for the underlying substantive relief sought. The standard of review of such a denial is not before us today, as we have explained. Second, the BIA may hold that the movant has not introduced previously unavailable, material evidence, 8 CFR § 3.2 (1987), or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially, 8 CFR §208.11 (1987). (The issues under the two regulations may, of course, both involve the incremental significance of whatever allegedly new evidence is introduced by the movant.) We decide today that the appropriate standard of review of such denials is abuse of discretion. Third, in cases in which the ultimate grant of relief is discretionary (asylum, suspension of deportation, and adjustment of status, but not withholding of deportation), the BIA may leap ahead, as it were, over the two threshold concerns (prima facie case and new evidence/reasonable explanation), and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief. We have consistently held that denials on this third ground are subject to an abuse-of-discretion standard. INS v. Rios-Pineda, 471 U. S. 444 (1985) (suspension of deportation); INS v. Bagamasbad, 429 U. S. 24 (1976) (adjustment of status).

We have discussed 8 CFR §3.2 (1987), which is one of the two regulations before us today, in dicta:

“[Section 3.2] is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened.” INS v. Jong Ha Wang, 450 U. S. 139, 144, n. 5 (1981).

This footnote, and our subsequent citations of it, INS v. Rios-Pineda, supra, at 449; INS v. Phinpathya, 464 U. S. 183, 188, n. 6 (1984), stand for the proposition that the BIA has discretion to deny a motion to reopen even if the alien has made out a prima facie case for relief; that is, our prior glosses on § 3.2 have served as support for an abuse-of-discretion standard of review for the third type of denial, where the BIA simply refuses to grant relief that is itself discretionary in nature, even if the alien has surmounted the requisite thresholds of prima facie case and new evidence/reasonable explanation.

But even before reaching the ultimate decision on an alien’s application for discretionary relief from deportation, or before reaching the point at which mandatory relief is called for in a withholding of deportation case, the BIA’s discretion may be called into play regarding the specific, evidentiary requirements of §§ 3.2 and 208.11. That is, in a given case the BIA may determine, either as a sufficient ground for denying relief or as a necessary step toward granting relief, whether the alien has produced previously unavailable, material evidence (§3.2), and, in asylum cases, whether the alien has reasonably explained his or her failure to request asylum initially (§208.11). We hold today that such decisions are subject to an abuse-of-discretion standard of review.

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. There is a 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 relevance of this interest to deportation proceedings was pointedly explained in an opinion that we recently quoted with approval:

“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 [, a requirement not disputed in this case].’” INS v. Jong Ha Wang, 450 U. S., at 144, n. 5 (quoting from Judge Wallace’s dissenting opinion in Villena v. INS, 622 F. 2d 1352, 1362 (CA9 1980) (en banc) (CA9 companion case to Jong Ha Wang).

As we have detailed above, the Court of Appeals in this case purported to decide “whether [respondent] presented a prima facie case for reopening.” 802 F. 2d, at 1100. In so doing, the Court of Appeals set out a standard for BIA motions to reopen deportation proceedings, see supra, at 100-101, that appears to have conflated the quite separate issues whether the alien has presented a prima facie case for asylum with whether the alien has reasonably explained his failure to apply for asylum initially and has indeed offered previously unavailable, material evidence. To the extent that the reasoning of the Court of Appeals addresses the issue of reopening rather than the issue of prima facie case for asylum, it is not supported by our cases, and has been consistently rejected by other Circuits and by other panels in the Ninth Circuit. We have never-suggested that all ambiguities in the factual averments must be resolved in the movant’s favor, and we have never analogized such a motion to a motion for summary judgment. The appropriate analogy is a motion for a new trial in a criminal case on the basis of newly discovered evidence, as to which courts have uniformly held that the moving party bears a heavy burden. See, e. g., Taylor v. Illinois, 484 U. S. 400, 414, n. 18 (1988) (citing cases). Moreover, this is the tenor of the Attorney General’s regulations, which plainly disfavor motions to reopen. See n. 2, supra. In sum, although all adjudications by administrative agencies are to some degree judicial and to some degree political — and therefore an abuse-of-discretion standard will often apply to agency adjudications not governed by specific statutory commands — INS officials must exercise especially sensitive political functions that implicate questions of foreign relations, and therefore the reasons for giving deference to agency decisions on petitions for reopening or reconsideration in other administrative contexts apply with even greater force in the INS context.

Ill

We have no doubt that 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. See 8 CFR §§ 208.6 (1987) (requiring appearance before immigration officer for asylum application) and 208.10(c) (permitting presentation of evidence in deportation proceedings). We are equally convinced, however, that 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. In passing on the sufficiency of such a motion, the BIA is entitled to attach significance to its untimeliness, both for the purpose of evaluating the probability that the movant can prove his allegations and for the purpose of determining whether the movant has complied with the regulation requiring a reasonable explanation for the failure to request asylum during the deportation proceeding.

In this case we have no hesitation in concluding that 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. The surprise visit in 1984 was admittedly an event with uncertain meaning, but it was neither arbitrary nor unreasonable for the BIA to regard it as not providing any significant additional support for a claim that respondent had not previously considered strong enough to prompt him to assert that he had a well-founded fear of persecution.

The portion of the Court of Appeals’ judgment that reversed the BIA order denying the motion to reopen is reversed.

It is so ordered.

Justice Kennedy took no part in the consideration or decision of this case.

       Respondent had declined to apply for asylum, but had argued instead that his marriage to a United States citizen made him eligible for an adjustment of status under 8 U. S. C. § 1255(a). The Immigration Judge denied the adjustment-of-status application, App. to Pet. for Cert. 28a, because respondent’s drug conviction constituted a nonwaivable ground of excludability, 8 U. S. C. § 1182(a)(23) (1982 ed., Supp. IV), and the BIA affirmed this determination, App. to Pet. for Cert. 24a.

       Title 8 CFR § 208.11 (1987) provides in 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.”
      Title 8 CFR § 3.2 (1987) provides in 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.”

       See INS v. Stevic, 467 U. S. 407 (1984) (mandatory withholding of deportation under § 243(h) only if alien can establish that his “life or freedom would be threatened” on account of race, religion, political opinion, etc.). Although respondent moved for reopening to apply for both asylum and withholding of deportation, Motion to Reopen to Permit Respondent to Apply for Asylum and Request Withholding of Deportation in No. 86-7075 (CA9), p. 1 (pp. 14-19 of Pleadings of the Record), the focus throughout the proceedings has been on the asylum application, and our discussion will maintain the same focus. This focus should not obscure the fact that our holding today applies to BIA reopening decisions regarding both asylum and withholding of deportation requests. • First, the standard for granting reopening under 8 CFR § 3.2 (1987) is the- same for both asylum and withholding of deportation requests; accordingly, the BIA’s determination regarding whether “evidence sought to be offered [on reopening] is material and was not available and could not have been discovered or presented at the former hearing,” ibid., is subject to an abuse-of-diseretion standard of review regardless of the underlying substantive claim asserted by the alien. Further, since all asylum requests “made after the institution of exclusion or deportation proceedings . . . shall also be considered as requests for withholding exclusion or deportation pursuant to section 243(h) of the Act,” 8 CFR § 208.3(b) (1987); since, normally, “the relevant evidence will be identical on both claims,” 802 F. 2d 1096, 1102 (CA9 1986) (case below), see Matter of Mogharrabi, Interim Dec. No. 3028, p. 12 (BIA June 12, 1987) (“[T]he core of evidence and testimony presented in support of the asylum and withholding applications will in almost every case be virtually the same”); and since it is easier to prove well-founded fear of persecution than clear probability of persecution, the BIA’s application of 8 CFR § 208.11 (1987), which on its face applies only to asylum requests on reopening, will also usually be dispositive of its decision whether to reopen to permit a withholding of deportation request. In sum, our holding today is that a court of appeals should review the BIA only for abuse of discretion when the Board denies reopening on §3.2 or §208.11 grounds, regardless of the underlying basis of the alien’s request. See n. 10, infra.

       See INS v. Cardoza-Fonseca, 480 U. S. 421 (1987) (“well-founded fear of persecution” contains subjective and objective components, but does not require proof that persecution is more likely than not to occur if alien is deported).

       Respondent did not cross-petition for a writ of certiorari from this holding.

       Early in its opinion, the Court of Appeals did state, correctly, that the BIA had denied reopening both because of respondent’s failure to explain the belated asylum application and because of his failure to make out a prima facie showing for asylum relief. 802 F. 2d, at 1099. The Court of Appeals later commented:
      “The Board incorrectly found that all the considerations upon which Dr. Abudu 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.” Id., at 1102.
      This statement was erroneous. The Board’s actual finding was:
      “We are satisfied from a careful review of the record that the respondent has not reasonably explained his failure to file his application at the hearing. 8 CFR § 208.11; Matter of Escobar, 18 I&N Dec. 412 (BIA 1979). He was aware at the time of the hearing of the problems which his brother and other associates were allegedly facing, yet apparently those considerations did not then prompt him to seek asylum. Now, in seeking reopening, he relies heavily on those same considerations. Given that so much of the evidence upon which the respondent now bases his persecution claim was available at the time of the hearing, we are not persuaded that the visit by a member of the present government was by itself so alarming that it explains the respondent’s failure to apply for asylum at the hearing.” App. to Pet. for Cert. 17a.
      It may be that the Court of Appeals’ confusion regarding the BIA’s holding led to its addressing the two separate grounds on which the BIA had relied as if they were one.

       “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 proceedings, is required to draw all reasonable inferences in favor of the alien.” Pet. for Cert. (I).

       Thus, this case comes to us in a different posture than did INS v. Stevic, 467 U. S. 407 (1984). There, the BIA had issued an opinion denying reopening to the alien movant on alternative grounds similar to those relied upon by the BIA in today’s case. That is, the BIA in Stevie had held (1) that Stevie had failed to show that the new evidence was unavailable at the initial deportation hearing, and thus could not overcome the threshold of 8 CFR § 3.2 (1987), and (2) that Stevie had “failed to submit prima facie evidence” of the substantive ground on which he sought relief (that his freedom would be threatened upon return to Yugoslavia on account of his political opinion). INS v. Stevic, supra, at 411, and n. 3. The Court of Appeals in Stevie held that a change in the law between Stevie’s initial deportation hearing and his motion to reopen had changed the legal standard for the underlying substantive claim, and thus that Stevie was entitled to a hearing under the new, more lenient standard. - We reversed, holding that the standard for gaining mandatory withholding of deportation under § 243(h) had not been altered by the Refugee Act of 1980. See n. 3, supra. Thus, although the BIA had relied upon alternative grounds in Stevie similar to those it relied upon in respondent’s ease — and accordingly one could suggest that we should decide the underlying substantive issue here just as we did in Stevie — the crucial difference between the two cases is that in Stevie the issue whether sufficient new evidence was available to require reopening depended upon a determination whether the underlying substantive standard for withholding of deportation had been altered, while in today’s ease the issue whether respondent reasonably explained his failure to apply for asylum initially does not so depend upon how one states the underlying substantive standard, but rather may be resolved as an independent matter. Unlike the petition for writ of certiorari and reply memorandum in today’s case, which asked us to resolve an issue regarding agency discretion on reopening and not the underlying substantive standard for determining eligibility for asylum, the petition for writ of certiorari in Stevie, as well as the brief in opposition and reply memorandum, discussed only the nature of the underlying substantive standard.

       Just last Term we stated that “[t]here is obviously some ambiguity in a term like ‘well-founded fear’ which can only be given concrete meaning through a process of case-by-case adjudication. ” INS v. Cardoza-Fonseca, 480 U. S., at 448. The BIA has begun this post -Cardoza-Fonseca process of giving meaning to “well-founded fear of persecution.” Matter of Mogharrabi, Interim Dec. No. 3028, at 9 (after canvassing various approaches taken by Courts of Appeals, adopts general standard set forth by Fifth Circuit in Guevara Flores v. INS, 786 F. 2d 1242 (1986), cert. denied, 480 U. S. 930 (1987), viz., “that an applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution”). We express no opinion on the BIA’s recent formulation.

       Respondent attempts to distinguish Jong Ha Wang, Phinpathya, and Rios-Pineda, by arguing that the key standard for determining eligibility for suspension of deportation (whether the deportation would result in extreme hardship to the alien) is itself established at the discretion of the BIA, see 8 U. S. C. §§ 1254(a)(1) and 1103; 8 CFR §2.1 (1987); INS
        v. Jong Ha Wang, 450 U. S. 139, 144-146 (1981), whereas the standard for determining eligibility for asylum is determined by statute, see 8 U. S. C. §§ 1158 and 1101(a)(42)(A). Thus, respondent continues, Jong Ha Wang and its successor cases are of limited value because they all arose in the suspension of deportation setting, where the BIA’s discretion to determine eligibility is greater than it is in the asylum setting. Without commenting on the validity of respondent’s conclusion regarding the varying degrees of discretion the BIA may exercise in suspension of deportation and asylum settings, we note that even if respondent’s point were correct, it would be irrelevant for purposes of this case. The BIA’s regulation that provides for reopening of deportation proceedings, 8 CFR § 3.2 (1987), applies to all motions to reopen, regardless of the underlying substantive basis of the alien’s claim. Further, the separate regulation relied on by the BIA in denying respondent’s motion to reopen, 8 CFR §208.11 (1987), addresses not the underlying substantive standard for an asylum claim, but rather the additional threshold an alien must overcome on a motion to reopen to make such a claim. As we are simply defining the standard a court of appeals must apply in reviewing the BIA’s denial of reopening on §§ 3.2 and 208.11 grounds — and not the standard for establishing eligibility for asylum, whether initially or on motion to reopen — whatever distinction may exist regarding the BIA’s discretion in determining eligibility for suspension of deportation and for asylum does not affect the question we address today. See n. 3, supra.

       See, e. g., Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 294-296 (1974) (reopening of Interstate Commerce Commission licensing hearing only “in the most extraordinary circumstances”); Cities of Campbell v. FERC, 248 U. S. App. D. C. 267, 278, 770 F. 2d 1180, 1191 (1985) (reopening of Federal Energy Regulatory Commission evidentiary hearing “a matter of agency discretion, . . . reserved for extraordinary circumstances”); Duval Corp. v. Donovan, 650 F. 2d 1051, 1054 (CA9 1981) (reconsideration of Federal Mine Safety and Health Review Commission order “addressed to that body’s discretion” and “Menial of such a petition should be overturned only upon a showing of the clearest abuse of discretion”); Nance v. EPA, 645 F. 2d 701, 717 (CA9) (“The administrative process cannot provide for the constant reopening of the record to consider new facts, . . . and it is for the agency, not this court to determine when such reopening is appropriate, unless the failure to reconsider can be characterized an abuse of discretion”), cert. denied sub nom. Crow Tribe of Indians, Montana v. EPA, 454 U. S. 1081 (1981).

       See, e. g., United States v. Tucker, 836 F. 2d 334, 336 (CA7 1988) (new trial only if newly discovered evidence “would probably lead to an acquittal in the event of a trial”); United States v. Vergara, 714 F. 2d 21, 22 (CA5 1983) (“[Standard for review of the denial of a motion for new trial on [grounds of newly discovered evidence] rests in the sound discretion of the trial court”); 3 C. Wright, Federal Practice and Procedure § 557, p. 315 (1982) (motions for new trial on grounds of newly discovered evidence “are not favored by the courts and are viewed with great caution”).

       See, e. g., Aviles-Torres v. INS, 790 F. 2d 1433, 1436 (CA9 1986) (prima facie showing of entitlement to relief and explanation of failure to present evidence earlier are separate elements of reopening motion); Bahramnia v. INS, 782 F. 2d 1243, 1245 (CA5) (requirements of §§ 3.2 and 208.11 “additional... to the establishment of a prima facie case of eligibility”), cert. denied, 479 U. S. 930 (1986); Ananeh-Firempong v. INS, 766 F. 2d 621, 627 (CA1 1985) (§ 3.2 requirement separate from prima facie case requirement); Duran v. INS, 756 F. 2d 1338, 1340, n. 1 (CA9 1985) (two requirements for reopening to request asylum: prima facie case of eligibility for relief and reasonable explanation for failure to apply initially, under §208.11); Samimi v. INS, 714 F. 2d 992, 994 (CA9 1983) (“To justify reopening on the basis of an asylum claim, a petitioner must make a prima facie showing that he is eligible for the relief sought, . . . and explain his failure to raise the asylum claim in the previous proceeding. 8 CFR §§ 3.2, 208.11 (1983). Somewhat related to this second requirement is the requirement that the petitioner offer new, material evidence that could not have been discovered and presented at the former hearing. 8 CFR §§ 3.2, 103.5, 242.22 (1983)”).

       As we have stated throughout the opinion, to the extent that the Court of Appeals’ reasoning addresses the issue of prima facie case for asylum, we offer no view of its validity, save our observation, infra, at 111, that the untimeliness of an asylum claim may be relevant to the BIA’s decision as to the prima facie case issue on reopening.

       See, e. g., Torres-Hernandez v. INS, 812 F. 2d 1262, 1264 (CA9 1987) (abuse-of-discretion standard applied to denial of motion to reopen on § 3.2 grounds); Sakhavat v. INS, 796 F. 2d 1201, 1203 (CA9 1986) (abuse-of-discretion standard applied to denial of reopening on §208.11 grounds); Conti v. INS, 780 F. 2d 698, 701 (CA7 1985) (abuse-of-discretion standard applied to denial of reopening on §3.2 grounds); Ananeh-Firewvpong v. INS, swpra, at 626 (abuse-of-discretion standard applied to denial of motion to reopen in which alien complied with § 3.2 by alleging new facts); Riasati v. INS, 738 F. 2d 1115, 1119 (CA10 1984) (abuse-of-discretion standard applied to denial of motion to reopen on § 3.2 materiality grounds); Motamedi v. INS, 713 F. 2d 575, 576 (CA10 1983) (BIA abused its discretion in denying motion to reopen when alien had complied with § 208.11 by reasonably explaining his failure to request asylum initially); LeBlanc v. INS, 715 F. 2d 685, 689 (CA1 1983) (suggesting that our holding in INS v. Jong Ha Wang, 450 U. S. 139 (1981), permits the BIA, pursuant to § 3.2, to “decide that it will not reopen in eases such as the one at bar, where the movant may have made out a prima facie case, but the Board is persuaded that for other assertedly legitimate reasons it would not, as a matter of discretion, allow suspension”); Samimi v. INS, supra, at 994-995 (abuse-of-discretion standard applied to denial of reopening on §§ 3.2 and 208.11 grounds); Chae Kim Ro v. INS, 670 F. 2d 114 (CA9 1982) (abuse-of-discretion standard applied to denial of reopening on § 3.2 grounds); Au Yi Lau v. INS, 181 U. S. App. D. C. 99, 107, 555 F. 2d 1036, 1044 (1977) (“At most, [§ 3.2] dictates that the Board consider any new circumstances advanced in support of a motion to reopen, and that the Board not abuse its discretion in determining whether the circumstances are sufficient to justify granting of the motion”); see also, e. g., Brown v. INS, 249 U. S. App. D. C. 333, 337, 775 F. 2d 383, 387 (1985) (abuse-of-discretion standard applied to denial of motion to reopen on § 3.8 grounds due to lack of evidentiary support).

       See, e. g., Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50, 67-70 (1982) (plurality opinion) (Constitution authorizes Congress to delegate adjudication of “public rights” to non-Article III judges); see also id., at 91 (Rehnquist, J., concurring in judgment) (“public rights” doctrine might sustain other powers granted non-Article III judges under the Bankruptcy Act of 1978, but not the adjudication of appellant’s contract suit).

       Cf., e. g., Hampton v. Mow Sun Wong, 426 U. S. 88, 101-102, n. 21 (1976) (“[T]he power over aliens is of a political character and therefore subject only to narrow judicial review”).