Kucana v. Holder, 558 U.S. ___, 130 S. Ct. 827, 2010 U.S. LEXIS 764 (Jan. 20, 2010)
In a unanimous decision, the Supreme Court held that the courts of appeals have jurisdiction to review a BIA decision denying a motion to reopen.The case focuses on the scope of INA § 242(a)(2)(B)(ii), the bar to judicial review of discretionary decisions. This section provides that “no court shall have jurisdiction to review … any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” In the underlying decision, Kucana v. Holder, 533 F.3d 534 (7th Cir. 2008), the Seventh Circuit had said that this provision applies to determinations declared discretionary by the Attorney General through regulation. Thus, according to the Seventh Circuit, motions to reopen, which are discretionary by regulation, are not reviewable. The Supreme Court reversed the Seventh Circuit, finding that § 242(a)(2)(B)(ii) bars review only of determinations made discretionary by statute.
The Court began its analysis by noting that a “motion to reopen is an ‘important safeguard’ intended to ‘ensure a proper and lawful disposition’ of immigration proceedings” and that there is long history of judicial review over reopening decisions. Employing tools of statutory interpretation, the Court looked to § 242(a)(2)(B)(ii)’s context and placement in the statute. It found that the surrounding judicial review provisions, § 242(a)(2)(A) (barring review over expedited removal decisions under § 235(b)(1)) and § 242(a)(2)(C) (barring review where person is removable based on specified criminal grounds) depend on statutory provisions, not on regulations, to define their scope. The Court also found that § 242(a)(2)(B)(ii) must be read in conjunction with § 242(a)(2)(B)(i), which likewise bars review over the granting of relief under specified statutory provisions (namely, waivers under 212(h) and 212(i), cancellation of removal, voluntary departure, and adjustment of status). Moreover, the Court found significant the character of the decisions Congress enumerated in § 242(a)(2)(B), which are “substantive decisions . . . made by the Executive in the immigration context as a matter of grace.” Such decisions are distinguishable from decisions on motions to reopen, which are a procedural device “serving to ensure that aliens are getting a fair chance to have their claims heard.” Finally, the Court found that had Congress intended the jurisdictional bar to apply to decisions specified as discretionary by regulation, it could have said so explicitly as it did in other places.
Next, the Court looked to the history of the motion to reopen and judicial review provisions. The Court noted that through IIRIRA Congress simultaneously codified the motion to reopen statute and numerous bars to judicial review of executive decisions. “Had Congress elected to insulate denials of motion to reopen from judicial review,” the Court said, “it could have so specified together with its codification of directions on filing motions to reopen.”
Finally, the Court found that any “lingering doubts” about § 242(a)(2)(B)(ii) would be resolved by the presumption in favor of judicial review. There is no “clear and convincing evidence” that Congress intended to bar review over determinations made discretionary by regulation. Moreover, the Court said that under the Seventh Circuit’s construction of the statute “the Executive would have a free hand to shelter its own decision from abuse of discretion appellate review simply by issuing a regulation declaring those decisions ‘discretionary.’ Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.”
Read the opinion [1].