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Kucana v. Holder

January 20, 2010

AGRON KUCANA, PETITIONER
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL



On Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Court Below: 533 F. 3d 534

SYLLABUS BY THE COURT

OCTOBER TERM, 2009

Argued November 10, 2009

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act (INA or Act), codifying certain rules, earlier prescribed by the Attorney General, that govern the process of reopening removal proceedings. IIRIRA also added a provision stating that no court has jurisdiction to review any action of the Attorney General "the authority for which is specified under this subchapter to be in the discretion of the Attorney General." 8 U. S. C. §1252(a)(2)(B)(ii). A regulation, amended just months before IIRIRA's enactment, provides that "[t]he decision to grant or deny a motion to reopen ... is within the discretion of the [Board of Immigration Appeals (BIA)]," 8 CFR §1003.2(a). As adjudicator in immigration cases, the BIA exercises authority delegated by the Attorney General.

Petitioner Kucana moved to reopen his removal proceedings, asserting new evidence in support of his plea for asylum. An Immigration Judge denied the motion, and the BIA sustained that ruling. The Seventh Circuit concluded that it lacked jurisdiction to review the administrative determination, holding that §1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also of those made discretionary by regulation.

Held: Section 1252(a)(2)(B)'s proscription of judicial review applies only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation. Pp. 6-18.

(a) The motion to reopen is an "important safeguard" intended "to ensure a proper and lawful disposition" of immigration proceedings. Dada v. Mukasey, The opinion of the court was delivered by: Justice Ginsburg

Opinion of the Court

558 U. S. ____ (2010)

Petitioner Agron Kucana moved to reopen his removal proceedings, asserting new evidence in support of his plea for asylum. An Immigration Judge (IJ) denied the motion, the Board of Immigration Appeals (BIA or Board) sustained the IJ's ruling, and the U. S. Court of Appeals for the Seventh Circuit concluded that it lacked jurisdiction to review the administrative determination. For that conclusion, the court relied on a provision added to the Immigration and Nationality Act (INA or Act), 66 Stat. 166, 8 U. S. C. §1101 et seq., by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546. The provision found dispositive by the Seventh Circuit, 8 U. S. C. §1252(a)(2)(B), states that no court shall have jurisdiction to review any action of the Attorney General "the authority for which is specified under this subchapter to be in the discretion of the Attorney General," §1252(a)(2)(B)(ii) (emphasis added).

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. 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 the relevant statutory provisions. We take account, as well, of the "presumption favoring interpretations of statutes [to] allow judicial review of administrative action." Reno v. Catholic Social Services, Inc., 509 U. S. 43, 63-64 (1993) (quoting McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991)). Separation-of-powers concerns, moreover, caution us against reading legislation, absent clear statement, to place in executive hands authority to remove cases from the Judiciary's domain.

I.

A.

In IIRIRA, Congress for the first time codified certain rules, earlier prescribed by the Attorney General, governing the reopening process. The amended Act instructs that reopening motions "shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material." §1229a(c)(7)(B). Congress also prescribed that "the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." §1229a(c)(7)(C)(i). Among matters excepted from the 90-day limitation are motions to reopen asylum applications because of changed conditions in the country of nationality or removal. §1229a(c)(7)(C)(ii).

Section 1252(a)(2), captioned "Matters not subject to judicial review," contains the provision on which this case turns. Subparagraph (B) of that paragraph, headed "Denials of discretionary relief," states:

"Notwithstanding any other provision of law (statutory or non-statutory), ... except as provided in subparagraph (D),[*fn1] and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review --

"(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title,[*fn2] or

"(ii) any other decision or action of the Attorney General ... the authority for which is specified under this subchapter[*fn3] to be in the discretion of the Attorney General ... , other than the granting of relief under section 1158(a) of this title."*fn4

A regulation, amended in 1996, just months before Congress enacted IIRIRA, 61 Fed. Reg. 18904, Pt. 3, §3.2(a), states that "[t]he decision to grant or deny a motion to reopen ... is within the discretion of the Board." 8 CFR §1003.2(a) (2009). As adjudicator in immigration cases, the Board exercises authority delegated by the Attorney General. See 8 U. S. C. §1103(g)(2); 8 ...


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