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The 7th Cir found that it lacked jurisdiction to review motions to reopen, except for "questions of law" or constitutional questions. The 7th cir distinguished its prior decision in Singh (which held that to apply 1252(a)(2)(B)(ii) to reopening would make the consolidation rule nonsensical), finding that 1252(a)(2)(D) eliminates that problem.
Overturned, Singh v. Gonzales, 404 F.3d 1024, 1026–27 (7th Cir. 2005). Followed, Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007).
Factually, this case presents a garden-variety reopening request. Petitioner argued that circumstances had changed in Albania, and that BIA's decision to the contrary was an abuse of discretion. Govt did not contest jurisdiction.
Majority opinion:
1. 1252(a)(2)(B)(ii) applies to asylum-related reopening decisions.
8 U.S.C. §1252(a)(2)(B)(ii), provides that no court has 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, other than the granting of relief under section 1158(a) of this title.” Section 1158(a) deals with applications for asylum, but the decision that Kucana wants us to review is not one “under §1158(a)"; it is a decision not to reopen, and thus not to revive a request for asylum that had been abandoned in 1997 when Kucana failed to attend the hearing scheduled to address that subject.
2. Govt argued that asylum determination was primarily factual - but that isn't a relevant distinction from Ali.
This does not begin to distinguish Ali. Before deciding whether to grant a continuance (the discretionary decision), an immigration judge must decide whether there is a good reason for more time, which depends in turn on whether the statements of fact said to constitute the good cause are true. Surely the evaluation of the alien’s circumstances cannot be reviewed notwithstanding §1252(a)(2)(B)(ii) and Ali.
3. While earlier 7th cir decision in Singh noted that applying 1252(a)(2)(B)(ii) to reopening would conflict with 8 U.S.C. §1252(b)(6), the addition of 1252(a)(2)(D) eliminates that conflict.
The panel’s view in Singh was that consolidation of proceedings concerning direct and reopening decisions would be pointless, if orders denying reopening never were subject to judicial review. That was true when the panel issued its opinion (April 15, 2005) but is true no longer. On May 11, 2005, the Real ID Act, Pub. L. 109–13 Div. B Tit. I, took effect. Today decisions denying reopening are within our jurisdiction to the extent provided by §1252(a)(2)(D): * * *
Because discretionary decisions now may be reviewed when they entail “constitutional claims or questions of law", there’s nothing incongruous about the consolidation rule in §1252(b)(6). Applying §1252(a)(2)(B)(ii) to orders denying motions to reopen will not make any part of the statute unnecessary. * * *
The enactment of §1252(a)(2)(D) eliminates that reason for giving §1252(a)(2)(B) a narrow reading—and, as the other arguments advanced in Singh also have been overtaken by events, we conclude that Singh must be overruled to the extent it holds §1252(a)(2)(B)(ii) inapplicable to discretionary reopening decisions.
4. The abuse of discretion arguments are not questions of law.
And although the ninth circuit might deem such an argument a proposition “of law” (because the law requires the Board not to abuse its discretion), see Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), rehearing en banc denied, 504 F.3d 973 (9th Cir. 2007) (O’Scannlain, J., and eight other judges dissenting), we explained in Jiménez Viracacha why Ramadan misreads §1252(a)(2)(D).
Ripple, concurring in panel decision
Cudahy, dissenting:
Not necessary to extend Ali:
Only the Eighth and Tenth Circuits had held that § 1252(a)(2)(B)(ii) precludes federal courts of appeals from reviewing an immigration judge’s denial of a continuance. Id. at 664 (citing Yerkovich v. Ashcroft, 381 F.3d 990, 993-95 (10th Cir. 2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004)). Yet even these courts continue to exercise jurisdiction over motions to reopen. See Miah v. Mukasey, 519 F.3d 784, 789 n.1 (8th Cir. 2008); Thongphilack v. Gonzales, 506 F.3d 1207, 1209-10 (10th Cir. 2007).
Ripple (joined by Wood, Williams, Rovner), dissenting from refusal to rehear en banc:
[T]he rationale of Ali is being applied beyond the realm of such a procedural ruling; it is being used to deny aliens review of a motion to reopen, a decision of the Board of Immigration Appeals that is based on a mistake or misunderstanding of the factual basis of the claim. This expansion into the realm of outcome determinative decisions takes us a long way from the statutory language chosen and enacted by Congress. See 8 U.S.C. § 1252(a)(2)(B)(i).
Applying Ali to deny aliens review of the decision whether to reopen crystalizes the importance of revisiting the breadth of that holding: The Supreme Court has analogized motions to reopen to motions under the Federal Rule of Civil Procedure 60(b), see Stone v. INS, 514 U.S. 386, 405 (1995). Indeed, since the panel’s consideration of this case, the Supreme Court has characterized motions to reopen as an “important safeguard” designed to “ensure a proper and lawful disposition.” Dada v. Mukasey, No. 06-1181, ___ S. Ct. ___, 2008 WL 2404066 at *15, 16 (June 16, 2008). This new holding of the Supreme Court should make us pause, take a deep breath and consider anew whether we really want to take the Circuit down a path so contrary to the manifest intent of Congress and to the Supreme Court’s understanding of that intent. If we take such a course, our decision will no doubt warrant close scrutiny by the Supreme Court. See Sup. Ct. R. 10.
General Immigration 
