On January 20, the Supreme Court decided Kucana v. Holder, No. 08-911, holding that a statute depriving the federal courts of jurisdiction to review discretionary decisions of the attorney general under the immigration laws applies only to decisions on which the attorney general's discretion derives from a statute, not to decisions that the attorney general himself has declared discretionary by regulation.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) includes a provision, 8 U.S.C. § 1252(a)(2)(B)(ii), stating that no court has jurisdiction to review actions of the attorney general that are specified elsewhere in the statutes to be in the attorney general's discretion. A few months before IIRIRA's enactment, the then-attorney general had promulgated a regulation stating that decisions to grant or deny motions to reopen proceedings for the removal of a person from the United States are within the discretion of the Board of Immigration Appeals (BIA), which is regarded as exercising the power of the attorney general in such matters.
Petitioner Kucana, a citizen of Albania, entered the United States on a business visa but remained after the visa expired and applied for asylum, claiming that he would be persecuted for his political beliefs if forced to return to Albania. He failed to appear at the first hearing on his petition, and he was ordered deported. The BIA denied two motions to reopen his removal proceedings, the second of which was based on his contention that changing conditions in Albania had increased the potential for his persecution if forced to return. He then sought review from the U.S. Court of Appeals for the Seventh Circuit, arguing that the BIA had abused its discretion, but the court of appeals dismissed his petition for lack of jurisdiction, citing the IIRIRA provision.
The government had not argued in the court of appeals that judicial review was barred, and it declined to oppose Kucana's attempt to overturn the court of appeals decision. The Supreme Court therefore appointed an attorney to act as amicus curiae to defend the decision. The Court then reversed, holding that the statute depriving federal courts of jurisdiction applied only to matters assigned to the attorney general's discretion by statute, not to those for which the attorney general had claimed discretion by regulation. It noted that decisions on motions to reopen removal proceedings were essentially procedural decisions that had traditionally been subject to judicial review, and it interpreted the statute as not changing existing law in this respect.
The Court noted that its decision was supported by principles of statutory construction that favor judicial review of administrative action, requiring "clear and convincing evidence" of Congressional intent to overturn the presumption in favor of such jurisdiction. Finally, the Court stressed as a "paramount factor" in its decision the proposition that only Congress can limit the federal courts' jurisdiction, noting that it would be "an extraordinary delegation of authority" to allow the Executive branch to shield its own decisions from abuse-of-discretion review simply by issuing a regulation declaring them "discretionary."
Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Roberts and Justices Stevens, Scalia, Kennedy, Thomas, Breyer, and Sotomayor joined. Justice Alito filed a separate opinion concurring in the judgment.