In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIA), which, among other things, made it more difficult for immigrants to seek judicial review of certain administrative immigration rulings. One such measure 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"¬Ě 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, the Supreme Court granted certiorari to resolve one of the circuit splits that has arisen regarding the proper construction of this provision. The question arises in Kucana v. Holder, No. 08-911, in the context of the BIA's denial of a motion to reopen a prior decision. The Seventh Circuit held that such reopening decisions fall within the discretion of the BIA, and as a result, the courts lack jurisdiction to review them.

Although that was also the position of the United States in the court of appeals, in responding to the petition in this case, the Solicitor General reconsidered that view and now agrees with petitioner that the jurisdiction-stripping provision does not apply. As a result, the Court will likely appoint an amicus to defend the judgment below and the Government will find itself in the unusual (although not unheard of) position of standing side-by-side in the Supreme Court with the immigrant it is trying to deport.

The case arises because the petitioner, Agron Kucana, overslept and missed his asylum hearing. When he didn't show up, the immigration judge denied asylum and ordered him deported in abstenia. The BIA denied a motion to reopen in 2002. Four years later, having not yet been deported, Kucana filed a second motion to reopen, this time claiming among other things that changed conditions in his home country of Albania warranted reconsideration of the disposition of his application for asylum. When the BIA denied the motion to reopen again, Kucana sought review in the Seventh Circuit (applications to review immigration decisions by the BIA are filed directly in the court of appeals).

The Seventh Circuit concluded that the decision on the motion to reopen fell within IIRIA's jurisdiction-stripping provision because, according to regulation, the decision whether to reopen a case rested solely in the discretion of the Board. In reaching this conclusion (and overruling prior Seventh Circuit precedent to the contrary), the court disagreed with a number of other circuits that have held the jurisdiction-stripping provision inapplicable in this circumstance.

In responding to the petition seeking a resolution to the split, the Solicitor General announced that "After reexamining its prior filings on this issue, the government has concluded that the majority position"¬Ě "‚Äú that is the courts holding that judicial review is available, contrary to the Seventh Circuit's decision in this case "‚Äú "represents the better reading of the statute."¬Ě The Solicitor General's about-face is based on the fact that the jurisdiction-stripping provision applies only when the "authority"¬Ě for the BIA's decision is "specified under this subchapter"¬Ě of the immigration statute. The statute, she points out, doesn't say anything about the standard for granting motions to reopen; only a regulation addresses that question (by giving the BIA discretion). And in the Government's current view, that is not good enough, particularly in light of the Supreme Court's traditional presumption in favor of preserving judicial review of administrative action.

The Government nonetheless urged the Court to deny certiorari in this case, arguing that Kucana's claim was baseless on the merits and that the issue is of limited practical importance because even when courts review such decisions, they do so under a highly deferential standard of review.

Those arguments failed to persuade the Court to deny certiorari. Because the Government is not defending the decision below, the Court will likely have to appoint an amicus to defend the view of the Seventh Circuit. And because Justice Stevens is the circuit justice for that court, it will fall on him to select someone for that job (traditionally, one of his former law clerks).

The case will be briefed in the coming months and argued in the fall.

Posted in Kucana v. Holder, Uncategorized