Kucana v. Holder (08-911)
In Kucana, the Supreme Court granted cert to consider the 7th cir's holding (unique among the circuits) that 1252(a)(2)(B)(ii) strips the Courts of Appeals of jurisdiction to consider motion to reopen denials. Today, the "top-side" briefs were due. Kucana argued, of course, that the 7th cir erred in finding no jurisdiction.
The news is that the Govt now agrees. It filed its brief today, along with Kucana, arguing that 1252(a)(2)(B)(ii) only applies where discretionary authority is "specified" within the text of the statute. Because it is the regulations, not the statute, which make reopening discretionary with the IJ or BIA, the jurisdiction-stripping statute does not apply. The Govt also argues that other statutory provisions favor this interpretation, as well as the fact that the 7th cir's interpretation would have left 1252(b)(6) (which mandates the consolidation of motion to reopen appeals with any appeal from the removal order itself) without any function from its enactment in 1996 until the REAL ID Act in 2005.
The Govt did suggest that it will win at the Court of Appeals on remand; but that, it said, was a question for the Seventh Circuit on remand.