Kucana v. Holder

RESPONDENT:Eric H. Holder, Jr., Attorney General

DOCKET NO.: 08-911
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 558 US 233 (2010)
GRANTED: Apr 27, 2009
ARGUED: Nov 10, 2009
DECIDED: Jan 20, 2010

Amanda C. Leiter – for amicus curiae in support of the judgment below (appointed by the Court)
Nicole A. Saharsky – Assistant to the Solicitor General, Department of Justice, for the respondent in support of the petitioner
Rick M. Schoenfield – on behalf of the petitioner

Facts of the case

Agron Kucana, a citizen of Albania, entered the United States in 1995 and did not leave when his visa expired. Mr. Kucana applied for asylum but failed to appear at his hearing, after which he was ordered removed from the United States. He filed a motion to reopen his case, which was denied. On appeal, the Board of Immigration Appeals (BIA) affirmed. After failing to remove himself from the United States, Mr. Kucana once again moved to reopen his case, contending that conditions in Albania had deteriorated to the extent where his life would be in danger upon his return. His motion was denied.

On appeal to the U.S. Court of Appeals for the Seventh Circuit, he argued that the BIA “abused its discretion” in denying his claim when it failed to consider an affidavit testifying to the dangerous conditions existing in Albania. The Seventh Circuit held that it lacked jurisdiction to review the matter. It found that the BIA’s decision not to reopen Mr. Kucana’s case was “discretionary.” 8 U.S.C. Section 1252(a)(2)(B)(ii) provides that “no court has jurisdiction to review” any decision that is under the discretion of the BIA. Therefore, the court reasoned that Mr. Kucana’s claim was not reviewable by a federal court of appeals.


Does 8 U.S.C. § 1252(a)(2)(B)(ii) bar judicial review for both administrative decisions made discretionary by statute and those made discretionary by regulation?

Media for Kucana v. Holder

Audio Transcription for Oral Argument – November 10, 2009 in Kucana v. Holder

Audio Transcription for Opinion Announcement – January 20, 2010 in Kucana v. Holder

John G. Roberts, Jr.:

Justice Ginsburg has our opinion this morning in case 08-911, Kucana versus Holder.

Ruth Bader Ginsburg:

The motion to reopen removal proceedings formally called deportation proceedings is an important safeguard to ensure the juxtaposition of immigration matters.

Federal courts have reviewed administrative decisions denying reopening of immigration proceedings since at least 1916.

This case concerns access to that check on executive determinations.

The petitioner, a citizen of Albania, moved to reopen his removal proceedings alleging new evidence in support of his plea for asylum.

An immigration judge denied the motion and the Board of Immigration Appeals sustained that ruling.

Petitioner sought judicial review in the US Court of Appeals for the Seventh Circuit.

The court dismissed his petition holding that it lacked jurisdiction to review the board’s determination.

For that ruling the court relied on a statute barring judicial review of certain administrative actions, those specified as discretionary under the relevant part of the Immigration and Nationality Act.

Although nothing in that act specifies the board’s discretion to rule on reopening motions, a regulation published by the Attorney General does so.

The Seventh Circuit held that the Attorney General’s regulation suffices to insulate the board’s decision from court oversight.

We reverse the Court of Appeals judgment and hold that Federal courts retain jurisdiction to review reopening denials in immigration matters.

That is so we explain because Congress reserved to itself and did not vest in the Attorney General authority to bar judicial review.

Examination of the relevant statute’s text and context leads us to this determination.

We note that other similar limitations of judicial review placed in the statute just before and just after the provision in question depends solely on statutory provisions not on any administrative regulation to define the scope of the limitation.

Our reading of the controlling provision keeps it in harmony with its surrounding provisions.

We also take into account the character of many of the immigration decisions Congress has expressly shielded from judicial review.

They are in the main substantive decisions about an alien’s plea to remain in the USA, decisions made by the executive as a matter of grace.

Decisions on reopening motions in contrast are not matters of grace, they are adjunct rulings concerned primarily with procedural fairness.

Finally two basic considerations strongly support our determination.

First, separation of powers concerns appreciation that Federal Court jurisdiction is controlled by Congress not by the executive and second the familiar presumption favoring judicial review of administrative actions.

Justice Alito has filed an opinion concurring in the judgment.