IIRIRA and Judicial Review

By Anna Christensen
on Nov 10, 2009 at 8:23 am

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which – among other things – made it more difficult for immigrants to seek judicial review of certain administrative immigration rulings. In particular, one provision in the Act, 8 U.S.C. § 1252(a)(2)(B), stripped courts of jurisdiction to review any “decision or action of the Attorney General . . . the authority for which is specified under this subchapter to be in the discretion of” the Attorney General.

This provision has led to frequent dispute in the federal courts of appeals over which decisions made by the Board of Immigration Appeals (BIA) on behalf of the Attorney General fall within this jurisdiction-stripping provision.  Today in No. 08-911, Kucana v. Holder, the Court will consider the question.  You can read Kevin Russell’s post-grant discussion of the background of the case here.

In his brief on the merits, petitioner Agron Kucana began by emphasizing the plain text of Section 1252(a)(2)(B), and in particular its requirement that the Attorney General’s discretion be “specified under this subchapter.”   In his view, the text “unambiguous[ly]” demonstrates Congress’s intent to preclude judicial review only in those circumstances specifically enumerated in the statute; the text’s silence regarding the Attorney General’s discretion with regard to denial of motions to reopen immigration proceedings reflect Congress’s intent that courts retain jurisdiction to review such denials.

Even if the text of Section 1252(a)(2)(B) were ambiguous, Kucana continued, the Seventh Circuit’s ruling should be reversed because it contravenes three established principles of statutory interpretation.  First, he argued, the decision goes against the “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,” as set forth in Reno v. Catholic Social Services and McNary v. Haitian Refugee Center.  Citing INS v. St. Cyr, in which the Court made clear that AEDPA and IIRIRA do not deprive courts of jurisdiction to review habeas corpus petitions, he emphasized in particular that immigration statutes should be “interpret[ed] … to preserve the jurisdiction of the federal courts.”  Second, he explained, a statute “should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”  If the Court affirms the Seventh Circuit’s decision, Kucana argued, there will be no way to reconcile Section 1252(a)(2)(B) with two other provisions, 8 U.S.C. § 1252(b)(6) and 8 U.S.C. § 1229a(b)(5)(A).  Third, there is a longstanding practice of “construing any lingering ambiguities in deportation statutes in favor of the alien.”  Because of this principle and because the consequences of deportation are considerable, Kucana posited, the ambiguities apparent in § 1252(a)(2)(B) should be construed in his favor.

Finally, Kucana warned, affirming the decision below could lead to potentially harmful consequences.  Motions to reopen, he explained, act as “important safeguard[s]” against procedural default; similar safeguards exist in a criminal context, and “[t]he extremely high stakes in the immigration context significantly increase the importance of such [] safeguard[s].”  Congress’s intentionally narrow tailoring of Section 1252(a)(2)(B) represented a clear response to the potentially “life and death” consequences of deportation.  Moreover, Kucana noted, affirming the decision below could allow the executive branch to “insulate its decisions from judicial review” whenever there is ambiguity with regard to the jurisdiction of federal courts, simply by promulgating regulations making such decisions “discretionary.”

In its brief supporting Kucana, the Government agreed that the court of appeals erred in holding that 8 U.S.C. 1252(a)(2)(B)(ii) precludes judicial review of motions to reopen.  The Government asserted that because Congress did not explicitly state – although it “easily could have” – that motions to reopen were not subject to judicial scrutiny, and because Congress clearly designed the relevant subchapter to ensure that federal courts’ jurisdiction would not be limited by regulation, the Seventh Circuit’s determination that it lacked jurisdiction was erroneous.  Pointing to the history of immigration law, the Government noted that courts have “long reviewed denials of motions to reopen”; Congress’s failure to make clear that it intended to depart from the existing practice, the Government suggested, must be read as an intention to maintain the availability of judicial review.  Further, the subchapter enumerates over thirty provisions that grant the Attorney General “discretion” over certain determinations; decisions on motions to reopen are not among these.  The statute grants discretionary authority to the Attorney General only in circumstances “specified under [the] subchapter”; because the Court “ordinarily resist[s] reading words or elements into a statute that do not appear on its face,” it should therefore determine that Section 1252(a)(2)(B)(ii) does not preclude judicial review of motions to reopen.

Although the Government agreed that the Seventh Circuit erred in holding that it lacked jurisdiction to review the Board’s denial of the motion to reopen, it also contended that the Seventh Circuit was correct when it observed that the Board’s denial of the motion to reopen was not an abuse of discretion.  The Government urged the Court to remand the case for further proceedings.

Amanda C. Leiter, a former clerk to Justice John Paul Stevens, was appointed as an amicus to defend the judgment below.  In her brief, Leiter asserted that Section 1252(a)(2)(B)(ii) does indeed preclude judicial review of Kucana’s motion.  She reasoned that the statute’s bar on judicial review of  decisions specified “under” the subchapter to be discretionary encompasses decisions that are deemed discretionary by regulation.  The word “under,” she explained, was deliberately selected by Congress “to describe the relationship between regulations and … statutes”; although both Kucana and the Government have urged the Court to read the statute as if it referred to decisions “in” or “within” the relevant subchapter, Congress specifically used the word “under” to refer to regulations as well as to the language in the subchapter itself.  Further textual “cues,” Leiter argued, reflect Congress’s intent that the statute be read broadly: the use of expansive words and phrases, coupled with Congress’s failure to explicitly limit the section’s reach as it did with other subchapters, suggest a deliberate attempt to restrict judicial review through Section 1251(a)(2)(B)(ii).

The Seventh Circuit’s opinion, Leiter continued, finds further support in the legislative history surrounding Section 1252(a)(2)(B)(ii).  The development of IIRIRA (of which the subchapter is a part) constituted an effort to “adopt a … far more restrictive judicial review scheme for immigration matters”; among other things, Congress intended to “streamline the deportation process and prevent aliens from abusing the court system” by prolonging their stay in the U.S. through repeated motions to reopen.  Moreover, the members of Congress who voted to enact IIRIRA did so with the understanding that the bill “would strip courts of jurisdiction to review any decision specified as discretionary,” without restriction as to the source of the specification, be it statutory or regulatory.