Kucana v. Holder, __ U.S. __, 08-911 (Supreme Court Jan. 20, 2010)
The question before the Supreme Court was:
Whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals.
I.e., whether the fact that reopening is discretionary under the regulations would be sufficient to trigger the bar to jurisdiction over discretionary matters. The answer, in short, was no. Justice Ginsburg wrote for a unanimous court, with Justice Alito concurring in the judgment, reversing the 7th cir's decision to the contrary.
1. When 1252(a)(2)(B)(ii) bars jurisdiction for decisions or actions the authority of which is specified "under" subchapter 2 of the INA to be discretionary. The Court found the term "under" to be ambiguous as text; so the Court looked to other indicia of what it meant.
a. First, it looked to the placement of (B)(ii), specifically comparing it to 1252(a)(2)(A) (admissibility issues) and 1252(a)(2)(C) (criminal grounds), noting that those sections were entirely statute-focused.
b. Second, it compared (a)(2)(B)(ii) with (B)(i), which lists a bunch of forms of statutory-based discretionary relief. That, said the Court, was another indicia that (a)(2)(B)(ii) was limited to situations where the statute itself grants discretion.
c. Third, it compared the types of relief in (a)(2)(B)(i) - basically, a noscitur a sociis argument - noting that (B)(i) included only "substantive decisions . . . made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not"
Decisions on reopening motions made discretionary by regulation, incontrast, are adjunct rulings: The motion to reopen is a procedural device serving to ensure “that aliens [a]regetting a fair chance to have their claims heard.” Tr. of Oral Arg. 17. A court decision reversing the denial of amotion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims havebeen accorded a reasonable hearing
2. The history of the statute also supported that conclusion. In 1996, when it adopted IIRIRA's jurisdiction-stripping provisions (including (a)(2)(B)(ii)), Congress codified large parts of the regulations pertaining to reopening, but left out the discretionary language. In Real ID, Congress left the statute alone, notwithstanding that some CtApps had already found that (a)(2)(B)(ii) had not stripped jurisdiction over motions to reopen.
3. Finally, the Court noted the general presumption in favor of reviewability of administrative decisions.
4. The Court flagged two issues which it did not decide today: (a) whether the bars to review over discretionary relief (e.g., adjustment of status) would thus bar review over reopening decisions in that context, and (b) whether sua sponte reopening would be beyond federal court jurisdiction, notwithstanding today's decision.
Justice Alito concurred separately. He concluded that the regulations had promulgated under the authority of 8 USC 1103(a), which is in subchapter 1 of the INA. Because 1252(a)(2)(B)(ii) only applies to subchapter 2 of Title 8, the reopening regulations would not trigger that provision. Thus, he would have decided the case on narrower grounds.
Read decision here:
For a link to the briefing:
Decision of the 7th cir:
