Foreign Policy, Asylum and Discretion
![handle is hein.journals/willr28 and id is 761 raw text is: FOREIGN POLICY, ASYLUM AND DISCRETION
BY JOAN FITZPATRICK*
AND
ROBERT PAUW**
I. INTRODUCTION
On January 15, 1992, a divided United States Supreme Court
decided INS v. Doherty. ' A plurality upheld the Attorney Gen-
eral's denial of a motion to reopen deportation proceedings.2 The
Court held that the Attorney General did not abuse his discretion
in finding that no new evidence warranted reopening Doherty's de-
portation proceeding.3 The Court avoided the major issue of the
Second Circuit's opinion4 and the numerous briefs filed by the par-
ties and amici: whether asylum can be denied to a refugee sim-
ply because the Attorney General wishes to avoid offending the
persecuting government.5
The primary issue presented in the government's brief was
whether it is appropriate to consider foreign policy in adjudicating
political asylum applications.6 The government asked the Court to
determine [w]hether the Attorney General is 'prohibited from
considering the Nation's opposition to terrorism, and other foreign
* Professor of Law, University of Washington School of Law; J.D., Harvard Univer-
sity, 1975; B.A., Rice University, 1972.
** Staff Attorney, Northwest Immigrant Rights Project, Seattle, WA; Adjunct Pro-
fessor, University of Puget Sound School of Law; J.D. Harvard University, 1983; Ph.D.,
Cornell University (Philosophy), 1980; B.A., Calvin College, 1974. The authors gratefully
acknowledge the comments made by Carolyn Patty Blum on drafts of this Article.
1. 112 S. Ct. 719 (1992).
2. Id. at 725-27.
3. Id. at 725. Two Justices held in the alternative that Doherty had waived his claims
to asylum and withholding by withdrawing them during his deportation hearing for tactical
reasons. Id. at 727-28.
4. Doherty v. INS, 908 F.2d 1108, 1118-21 (2d Cir. 1990).
5. See § 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § I 101(a)(42)
(1988); Article IA(2) of the United Nations Convention Relating to the Status of Refugees,
entered into force April 22, 1954, 189 U.N.T.S. 137, as incorporated into the Protocol
Relating to the Status of Refugees, entered into force October 4, 1967, Article I(2)-(3), 606
U.N.T.S. 267, 19 U.S.T. 6223 [hereinafter Refugee Convention]. Chief Justice Rehnquist
found it unnecessary to reach this issue. 112 S. Ct. at 724.
6. Brief for Petitioner at 8, INS v. Doherty, 112 S. Ct. 719 (1992) (No. 90-925) [here-
inafter Brief for Petitioner].](ViewImageLocal?handle=hein.journals/willr28&div=38&collection=&method=preview&ext=.png&size=3)
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