Kucana v. Holder
From ScotusWiki
Argued November 10, 2009. Decided January 20, 2010.
Authorship: Anna Christensen of Howe & Russell
Docket: 08-911
Issue: What is the scope of the jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and whether the statute removes jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?
Contents |
Briefs and Documents
Decision
REVERSED in an opinion by Justice Ginsburg. The decision was unanimous, but Justice Alito filed a separate opinion concurring in the judgment only. (January 20, 2010)
Oral Argument
Transcript (November 10, 2009)
Merits Briefs
- Brief for Petitioner Agron Kucana
- Brief for Respondent Supporting Petitioner Agron Kucana
- Brief for Court-Appointed Amicus Curiae in Support of the Judgment
- Reply Brief for Petitioner Agron Kucana
- Reply Brief for Respondent Supporting Petitioner Agron Kucana
Amicus Briefs
- Brief for Law Professors in Support of Petitioner
- Brief for National Immigrant Justice Center, American Immigration Lawyers Association, Asian American Justice Center, Florida Immigrant Advocacy Center, Hebrew Immigrant Aid Society, Immigrant Law Center of Minnesota, Mexican American Legal Defense And Educational Fund, National Immigration Law Center, And Northwest Immigrant Rights Project in Support of Petitioner
- Brief for American Civil Liberties Union in Support of Petitioner
- Brief for Court-Appointed Amicus Curiae in Support of the Judgment
- Brief for Washington Legal Foundation and Allied Education Foundation in Support of the Judgment
Certiorari-Stage Documents
Opinion Analysis
Amy Howe of Howe & Russell originally wrote the following for SCOTUSblog.
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.
Oral Argument Recap
During oral argument in Kucana v. Holder, the Justices challenged all three arguing attorneys on issues ranging from Congressional intent to statutory interpretation. Although it was unclear whether the Court was inclined to accept Kucana’s contention that courts have jurisdiction to review decisions by the Board of Immigration Appeals denying motions to reopen immigration proceedings, it seems that the case could be decided on the minutiae of statutory text or on the legislative history behind IIRIRA.
Almost as soon as Rick Schoenfield had begun his argument on Mr. Kucana’s behalf, Justice Ginsburg brought up the issue of Congress’s decision to use the word “under” in Section 1252(a)(2)(B), which precludes judicial review of decisions “the authority for which is specified under [the] subchapter” to be at the discretion of the Attorney General. In Schoenfield’s view, the statute’s context suggests that the word “under” is properly construed as meaning “according to” or “within.”
Justice Scalia expressed confusion over Schoenfield’s contention that the statute’s silence on motions to reopen suggested that Congress intended to preserve judicial review. Why, he asked, would Congress preclude review of judgments that are explicitly discretionary while providing review for judgments that are discretionary because of the Attorney General’s authority to make them so? Schoenfield responded that Congress’s intent to preserve such review can be inferred from the combination of the tradition of judicial review of decisions denying motions to reopen, and the statute’s silence on the issue.
Assistant to the Solicitor General Nicole Saharsky, arguing on behalf of the United States in support of Kucana, reiterated that Congress’s enumeration of those executive decisions not subject to judicial review – coupled with its silence with regard to motions to reopen – clearly demonstrated its intent to maintain courts’ jurisdiction. Justice Breyer challenged her on the implications of her assertion, noting that the suggestion that every procedural decision could be subject to such oversight “makes no sense to begin with.” Further, Justice Breyer identified a contradiction in the respondent’s underlying concession that an original BIA decision is not necessarily subject to review, while a motion to reopen is; according to the Justice, “[b]oth are the same thing.” The Court also pressed Saharsky on the potential burden on the courts that might result from a ruling in Mr. Kucana’s favor. Saharsky estimated that courts annually receive roughly two to three thousand petitions for review of BIA denials of motions to reopen; however, she noted that with the exception of the Seventh Circuit, every circuit that has addressed the question of federal jurisdiction over motions to reopen “has found that the provision at issue doesn’t bar judicial review.”
Arguing as amicus curiae in support of the decision below, Amanda Leiter emphasized that Congress enacted IIRIRA to streamline immigration appeals and to “protect the Attorney General’s discretion” from judicial review. Why, Justice Sotomayor pressed, did Congress neglect to make motions to reopen explicitly discretionary, if its intention was so clear? Leiter responded that Congress should in fact have felt compelled to clarify the reverse by explicitly protecting judicial review of motions to reopen. She noted that in many cases the Attorney General’s discretion is assumed, despite statutory silence on the issue; the fact that the statute specifically indicates that other decisions are discretionary does not mean that the BIA’s denial of motions to reopen is not a discretionary decision for purposes of the statute.
Why, then, Justice Breyer wanted to know, didn’t Congress use the word “ancillary” in the provision to suggest that authority specified by regulation could be included in the category of decisions protected from judicial review? And further, Justice Ginsburg added, if there is a category of decisions that can be reviewed in federal court, why did “Congress put some of them in the statute and [leave] others out?” Leiter responded that the choice to specify decisions as discretionary has strong procedural implications for the Attorney General; permitting the executive to determine its own discretion by regulation lifts this burden significantly. This practice of allowing agencies to make determinations with jurisdictional consequences, Leiter pointed out, has precedent in a number of statutes.
The argument ended with a brief rebuttal from Mr. Schoenfield, who returned to the importance of Congressional intent and textual ambiguity. Judging by the Court’s lines of questioning, it seems that those issues will be the defining ones in the case.
Pre-Argument Articles
Argument Preview
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.
Grant Write-up
Kevin Russell originally wrote the following for SCOTUSblog:
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” 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.
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” – that is the courts holding that judicial review is available, contrary to the Seventh Circuit’s decision in this case – “represents the better reading of the statute.” The Solicitor General’s about-face is based on the fact that the jurisdiction-stripping provision applies only when the “authority” for the BIA’s decision is “specified under this subchapter” 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).
