A provision in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. § 1252(a)(2)(B), precludes judicial review of any action of the Attorney General "the authority for which is specified under this subchapter to be in the discretion of the Attorney General."  In No. 08-911, Kucana v. Holder, the Court considered whether Section 1252(a)(2)(B) stripped the Seventh Circuit of jurisdiction to review a decision by the Board of Immigration Appeals (BIA) denying a motion by petitioner Agron Kucana to reopen his removal pleadings to present new evidence on his asylum claim.  The Seventh Circuit held that it lacked jurisdiction because Section 1252(a)(2)(B)(ii)'s bar extends not only to decisions made discretionary by statute, but also to cases in which "“ as here "“ the agency's discretion is specified by its own regulation.  Today the Supreme Court reversed, in an opinion by Justice Ginsburg that was joined by all of the justices except Justice Alito, who concurred in the judgment.

The Court's opinion begins by emphasizing the long history "“ dating back nearly a century "“ of judicial review of decisions denying motions to reopen removal proceedings.  In enacting IIRIRA, the Court observes, Congress failed to specify that such decisions would, going forward, lie within "the discretion of the Attorney General."  Rather, the Board's discretionary authority is "specified" only by regulation.  And regulations, the Court ultimately concludes, are not enough to trigger Section 1252(a)(2)(B)(ii)'s jurisdictional bar.  The Court reaches that conclusion based on the text and context of the statute, which it reads as indicating that "Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General's discretionary authority in the statute."  Moreover, the Court emphasizes, in contrast with the procedural nature of a motion to reopen, that the decisions for which judicial review is specifically precluded involve "substantive decisions . . . made by the Executive in the immigration context as a matter of grace."  Such a conclusion is also consistent with the history of the IIRIRA, in which Congress "simultaneously codified the process for filing motions to reopen and acted to bar judicial review of" various immigration decisions, but failed to codify the Attorney General's regulation giving the BIA discretionary authority with regard to motions to reopen.  And "any lingering doubt about the proper interpretation" of Section 1252(a)(2)(B)(ii)'s bar should be resolved by the presumption in favor of judicial review of administrative actions.

The Court finishes by "stress[ing] a paramount factor in [its] decision":  "By defining the various jurisdictional bars by reference to other provisions in the [Immigration and Nationality Act] itself, Congress ensured that it, and only it, would limit the federal courts' jurisdiction."  By contrast, under the Seventh Circuit's interpretation, "the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions "discretionary'" "“ a prospect that the Court seemed to find troubling indeed.

In his opinion concurring in the judgment, Justice Alito explains that he would have decided the case on a narrower ground insofar as the regulation at issue was derived from authority conferred under Subchapter I of Title 8, Chapter 12, while Section 1252(a)(2)(B)(ii) requires that discretionary authority be specified under Subchapter II.

The Court's decision today did not come as much of a surprise, given that the Attorney General himself declined to defend the Seventh Circuit's decision; the Court appointed Catholic University law professor Amanda Leiter to brief and argue the case as an amicus in support of the judgment below.  What remains to be seen, however, is the extent to which the Court's decision will affect the lower courts' application of Section 1252(a)(2)(B)(ii)'s jurisdictional bar in other contexts.

Posted in Kucana v. Holder, Merits Cases, Uncategorized