Kucana v. Holder

The U.S. Supreme Court has agreed to rule on whether the 2005 REAL ID Act strips courts of jurisdiction over discretionary decisions made by the Board of Immigration Appeals.

Agron Kucana, a native of Albania, came to the United States in July 1995 on a business visa. He applied for political asylum because of his political involvement in his native country but when he did not appear at the hearing in the fall of 1997, he was ordered removed in absentia.

He filed a motion to reopen, contending that he had overslept. An immigration judge denied that motion, and in 2002 the Board of Immigration Appeals affirmed. Kucana did not seek judicial review or leave the country. In 2006, he filed a motion to reopen the case, contending that conditions in Albania had deteriorated and he faced physical violence if he returned.

The immigration judge denied this motion, and on appeal, BIA found that Kucana failed to demonstrate changed country circumstance. The board also held that the immigration judge lacked jurisdiction because successive motions to reopen must be filed directly with the Board itself.

In July 2008, a divided U.S. Court of Appeals for the Seventh Circuit ruled that it lacked jurisdiction to hear the appeal under 8 U.S.C. Section 1252(a)(2)(B)(ii). Four members of the court dissented.

On April 27, the Supreme Court granted review. The justices will hear oral arguments when the court begins its fall term on Oct. 5.

Question presented: What is the scope of the jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and whether the statute removes jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?

The Supreme Court held today that the 2005 REAL ID Act does not strip courts of jurisdiction over discretionary decisions made by the Board of Immigration Appeals.

Agron Kucana, a native of Albania, came to the United States in July 1995 on a business visa. He applied for political asylum because of his political involvement in his native country but when he did not appear at the hearing in the fall of 1997, he was ordered removed in absentia.

He filed a motion to reopen, contending that he had overslept. An immigration judge denied that motion, and in 2002 the Board of Immigration Appeals affirmed. Kucana did not seek judicial review or leave the country. In 2006, he filed a motion to reopen the case, contending that conditions in Albania had deteriorated and he faced physical violence if he returned.

The immigration judge denied this motion, and on appeal, BIA found that Kucana failed to demonstrate changed country circumstance. The board also held that the immigration judge lacked jurisdiction because successive motions to reopen must be filed directly with the Board itself.

In July 2008, a divided U.S. Court of Appeals for the Seventh Circuit ruled that it lacked jurisdiction to hear the appeal under 8 U.S.C. Section 1252(a)(2)(B)(ii). Four members of the court dissented.

On Jan. 20, the Supreme Court reversed and remanded the lower court's order in an opinion by Justice Ruth Bader Ginsburg.

"We granted certiorari to decide whether the proscription of judicial review stated in §1252(a)(2)(B) applies not only to Attorney General determinations made discretionary by statute, but also to determinations declared discretionary by the Attorney General himself through regulation," Ginsburg wrote. "We hold that the key words 'specified under this subchapter' refer to statutory, but not to regulatory, specifications."

"We so rule based on the longstanding exercise of judicial review of administrative rulings on reopening motions, the text and context of §1252(a)(2)(B), and the history of therelevant statutory provisions," she added. "We take account, as well, of the 'presumption favoring interpretations of statutes [to] allow judicial review of administrative action.' Separation-of-powers concerns, more-over, caution us against reading legislation, absent clear statement, to place in executive hands authority to remove cases from the Judiciary's domain."

Question presented: What is the scope of the jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and whether the statute removes jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?