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Supreme Court rules federal courts can review motions to reopen immigration cases

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Supreme Court on Wednesday ruled unanimously in Kucana v. Holder that a federal statute gives federal courts jurisdiction to review rulings on motions to reopen decisions by the Board of Immigration Appeals. § 1252(a)(2)(B)(ii) states that no court shall have jurisdiction to review any action of the attorney general "the authority for which is specified under this subchapter to be in the discretion of the Attorney General." The US Court of Appeals for the Seventh Circuit held that it lacked jurisdiction to review the petitioner's claim. In reversing that decision, Justice Ruth Bader Ginsburg wrote: We granted certiorari to decide whether the proscription of judicial review stated in §1252(a)(2)(B) applies not only to Attorney General determinations made discretionary by statute, but also to determinations declared discretionary by the Attorney General himself through regulation. We hold that the key words "specified under this subchapter" refer to statutory, but not to regulatory, specifications. We so rule based on the longstanding exercise of judicial review of administrative rulings on reopening motions, the text and context of §1252(a)(2)(B), and the history of therelevant statutory provisions. We take account, as well, of the "presumption favoring interpretations of statutes allow judicial review of administrative action." Separation-of-powers concerns, more-over, caution us against reading legislation, absent clear statement, to place in executive hands authority to remove cases from the Judiciary's domain.The respondent, the US government also argued in support of the petitioner that the federal court had jurisdiction to review the claim. Justice Samuel Alito filed a separate opinion concurring in the judgment.The petitioner, Albanian citizen Agron Kucana, entered the US in 1995 on a work visa, remaining after it expired. He applied for asylum in 1996, alleging that he would be persecuted for his political beliefs if returned to Albania. When he failed to attend his asylum hearing, the immigration judge immediately ordered his removal. Kucana filed two motions to reopen his removal proceedings, but those motions were rejected by the immigration judge and the BIA.

Full post as published by JURIST - The Paper Chase on January 20, 2010 (boomark / email).