Kucana v. Holder (08-911)

Oral argument: Nov. 10, 2009

Appealed from: United States Court of Appeals for the Seventh Circuit (July 7, 2008)

IMMIGRATION, JUDICIAL REVIEW, STATUTORY INTERPRETATION

Agron Kucana, an Albanian immigrant, missed his immigration hearing and, in absentia, was ordered to be removed. The Board of Immigration Appeals (the “Board”) denied Kucana's motion to reopen his case. Kucana appealed the decision to the Seventh Circuit Court of Appeals, which ruled that the Board’s decision was not subject to judicial review. In relevant part, 8 U.S.C. § 1252(a)(2)(B)(ii) specifies that certain matters subject to the Attorney General’s discretion are not subject to judicial review. The dispute in this case centers on the scope and proper interpretation of the statute — in particular, on whether it allows judicial review of decisions not to reopen cases, or whether these decisions are outside the realm of judicial review, because they are the subject to the Attorney General’s discretion. The outcome of this case will determine the ability of immigrants to challenge denials of their motions to reopen through the regular judicial process.

·  [Question(s) presented]

·  [Issue(s)]

·  [Facts]

·  [Discussion]

·  [Analysis]

Question presented

Judicial review of immigrants’ legal claims is addressed 8 U.S.C. § 1252(a)(2)(B)(ii), which provides that no court shall have jurisdiction to review discretionary decisions of the Attorney General or the Secretary of Homeland Security. The question presented is whether the court of appeals has the jurisdiction to review an immigrant’s petition to reopen an immigration proceeding.

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Issue

Whether the decision by the Board of Immigration to deny an alien’s motion to reopen an immigration proceeding is a decision that is “specified” within the Attorney General’s discretionary authority under 8 U.S.C. § 1252(a)(2)(B)(ii).

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Facts

In this case, the Supreme Court will address the statutory interpretation of 8 U.S.C. § 1252(a)(2)(D), which determines the scope of judicial review on certain discretionary decisions. Specifically, the section states that no court has the jurisdiction to review “any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . .” 8 U.S.C. § 1252(a)(2)(D). The dispute involves whether the Court of Appeals has jurisdiction to review a decision by the Board of Immigration Appeals (the “Board”) on Agron Kucana’s motion to reopen his immigration proceeding. Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008).

Kucana is an immigrant from Albania who applied for asylum but failed to attend his hearing. Kucana, 533 F.3d at 535. The immigration judge ordered him removed in absentia. See id. Kucana, claiming he overslept, motioned to reopen the proceeding; the judge denied his motion, and the Board affirmed. See id. He filed a second motion to reopen, claiming he would be persecuted for his pro-democracy political views if sent back to Albania. See id. at 535–36. Accompanying the motion was an affidavit from Bernd Fischer, a professor of Balkan history, who stated that Kucana has a reasonable fear of political persecution in Albania. See id. at 536. Kucana’s motion was again denied by the immigration judge; on appeal the Board denied the motion, stating, among other things, that conditions in Albania has improved since 1997 when Kucana applied for asylum. See id.

Kucana petitioned to the Seventh Circuit Court of Appeals for review of the Board’s ruling. Kucana, 533 F.3d at 536. The Seventh Circuit addressed the question of whether it had jurisdiction under § 1252(a)(2)(B)(ii) to review the Board’s denial of relief, which limits the jurisdiction of a court to review certain discretionary decisions made by the Attorney General or the Secretary of Homeland Security. See id. The court reviewed the Board’s denial. See id. The court held that although 8 C.F.R. § 1003.2(a) gives the Board the discretion to reopen a case, the court is bound by the its decision in Ali v. Gonzales, in which it held that § 1252(a)(2)(B)(ii) applies to discretionary decisions under regulations. See id. at 536; Ali v. Gonzales, 502 F.3d 659 (Seventh Cir. 2007). Thus, the court lacks jurisdiction to review the Board’s decision in this case. Kucana, 533 F.3d at 536.

The court determined, however, that had Kucana advanced a constitutional claim or a question of law, then it would have had jurisdiction to review the Board’s decision under 8 U.S.C. § 1252(a)(2)(D). See Kucana, 533 F.3d at 538. Because Kucana did not raise any constitutional claim on appeal, the court determined it did not have jurisdiction. See id. at 538–39.  

On April 27, 2009, the U.S. Supreme Court granted certiorari to clarify whether a court has jurisdiction to review a decision by the Board of Immigration Appeals to reopen an alien’s immigration proceeding under 8 U.S.C. § 1252(a)(2)(B)(ii).

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Discussion

The Supreme Court’s decision in this case will clarify whether, under 8 U.S.C. § 1252(a)(2)(B)(ii), a ruling by the Board of Immigration Appeals (the “Board”) is subject to judicial review. Both Petitioner, Agron Kucana, and the Respondent, Eric H. Holder, Jr., U.S. Attorney General, argue that the plain language of 8 U.S.C. § 1252(a)(2)(B)(ii) does not preclude judicial review of the Board’s decision on a motion to reopen. See Brief for Petitioner Agron Kucana at 11; Brief for Respondent Eric H. Holder, Jr. at 13. Conversely, the Court-appointed amicus curiae (the “Court-appointed amicus”) argues that it does. See Brief for Court-Appointed Amicus Curiae in Support of the Judgment Below at 10. The Supreme Court’s decision will impact both immigrants in the United States and the balance of power between the executive and judicial branches over administrative decisions in immigration courts.

Judicial Review

If the Supreme Court agrees with Kucana and Holder, a greater number of discretionary decisions by and actions of the Attorney General and the Secretary of Homeland Security may be subject to judicial review. Kucana argues that such review is necessary, especially of motions to reopen. See Brief for Petitioner at 34. Without judicial review, Kucana contends, courts cannot correct the Board’s erroneous rulings. See id. at 36. In support of Kucana, a group of immigrant advocacy organizations argues that lack of judicial review would be problematic, because the Board has a history of issuing rulings based on erroneous factual findings and flawed reasoning. See Brief of Amici Curiae National Immigrant Justice Center et al. in Support of Petitioner at 10. Kucana points out that, in one recent year alone, the Seventh Circuit reversed approximately 40% of Board judgments. See Brief for Petitioner at 36. Thus, according to Kucana, judicial review of motions to reopen is essential to safeguard immigrants against erroneous judgments. See id. at 34. Kucana and the immigrant advocacy groups both note the danger of erroneous judgments resulting in immigrants being forced to return to unsafe home countries. See Brief for Petitioner at 35; Brief of National Immigrant Justice Center at 13–15.

In response, the Court-appointed amicus argues that the policy preferences expressed by Kucana and his amici are irrelevant to determining the statute’s interpretation. See Brief for Court-Appointed Amicus Curiae at 27. The Court-appointed amicus contends that the judicial branch simply lacks the power to rewrite a statute — even in light of valid policy considerations. See id. Amicus Washington Legal Foundation (the “Foundation”) also points out that because immigration policy is closely linked with national security, motions to reopen should remain within the political branches. See Brief of Amicus Curiae Washington Legal Foundation and Allied Education Foundation in Support of the Judgment Below at 2. The Foundation argues that, ultimately, judicial review of immigration cases tends to undermine the executive branch’s immigration enforcement efforts. See id.

Furthermore, the Court-appointed amicus points to a major principle of administrative law: that an agency must adhere to its own promulgated regulations. See Brief for Court-Appointed Amicus Curiae at 55. The Court-appointed amicus argues that deviation from this principle could lead to adverse consequences for parties appearing before the Board; relying on safeguards that are broader than those mandated by statue may unjustly discriminate against the other party involved or deny that party adequate notice. See id.

Balance of Power

Kucana and a group of law professors argue that if the Supreme Court interprets 8 U.S.C. § 1252(a)(2)(B)(ii) to include such aforementioned discretionary decisions, then one set of executive decisions is isolated from judicial review. See Brief for Petitioner at 37; Brief of Amicus Curiae Law Professors in Support of Petitioner at 2–3. Kucana points out that this may give the executive branch an incentive to classify decisions or actions as discretionary, allowing it to escape judicial review, as the Seventh Circuit’s interpretation effectively puts erroneous agency findings beyond federal court jurisdiction. See Brief for Petitioner at 37–38.

The Court-appointed amicus advances the counterargument that Kucana has produced no evidence that the executive branch will inappropriately isolate decisions from judicial review. See Brief for Court-Appointed Amicus Curiae at 48. Furthermore, the Court-appointed amicus points out that the issue to be determined is whether Congress did choose to limit judicial review of motions to reopen under 8 U.S.C. § 1252(a)(2)(B)(ii) and, thus, already considered this implication. See id.

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Analysis

In this disagreement over statutory construction, the parties look to the language of 8 U.S.C. 1252(a)(2)(B)(ii), the context of the broader statute, the history of immigration legislation, and canons of statutory construction to argue their sides. While Petitioner, Agron Kucana, and Respondent, Eric H. Holder, Jr., U.S. Attorney General, want the Court to interpret the statute to require an explicit statement of matters within the discretion of the Attorney General or Secretary of Homeland Security (“Secretary”) for the judicial review bar to apply, the Court-appointed amicus curiae arguing in support of the Seventh Circuit’s decision (the “Court-appointed amicus”) asserts that a regulation giving the Attorney General discretion is sufficient for the bar to apply.

The Meaning of “Under”

Kucana and Holder both argue that the statute unambiguously requires that the type of decision be specified in the statute for the judicial review bar to apply. See Brief for Respondent Eric H. Holder, Jr. at 13; Brief for Petitioner Agron Kucana at 15. 8 U.S.C. 1252(a)(2)(B)(ii) states that “no court shall have jurisdiction to review… any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. 1252(a)(2)(B). According to Kucana and the government, the use of the word “under” requires that the Attorney General or the Secretary of Homeland Security (“Secretary”) be explicitly granted the authority to make the decision or take the action in the text of the statute, and not in an enacting regulation. See Brief for Petitioner at 12; Brief for Respondent at 17. They claim that the meaning of “under” is unambiguous and that “specified under this subchapter” means the particular provisions found in 8 U.S.C. §§ 1151–1381. See Brief for Petitioner at 14; Brief for Respondent at 17. Since these provisions do not grant the Attorney General or the Secretary discretion over decisions to reopen, the parties argue Kucana should be able to seek judicial review of the decision. See Brief for Petitioner at 15, 21; Brief for Respondent at 22–23.

The Court-appointed amicus argues that the use of the word “under” applies to regulations promulgated pursuant to the statute as well as to the text of the statute itself. See Brief for Court-Appointed Amicus Curiae in Support of the Judgment Below at 14. The Court-appointed amicus argues that in common legal usage, “under” describes “the relationship of a regulation to its authorizing statute.” Id. at 15. If Congress had intended the judicial review bar to apply only to discretionary decisions specifically listed in the Act, it would have used the word “in” rather than “under.” See id. at 18. The Court-appointed amicus supports this reading by pointing out that the Supreme Court has recognized that in a statute, the phrase “under the statute” refers to both laws and regulations promulgated in pursuance with the statute. See id. at 17. Since the regulation giving the Board, an agent of the Attorney General, discretion over motions to reopen was promulgated pursuant to the statute, the Court-appointed amicus argues that it falls under the statute such that judicial review of a decision under this regulation is unavailable. See id. at 21.

Other Statutory Clues

The two sides point to other clues within the statute to support their preferred interpretations. Kucana and Holder point out that if Congress had intended to give the Attorney General discretion over decisions to reopen, it would have done so: the subchapter includes thirty-four provisions that give the Attorney General discretion, and one of these provisions relates to the time limitation for filing a motion to reopen. See Brief for Petitioner at 19, 22–23; Brief for Respondent at 19–20. The lack of explicit statutory language giving the Attorney General discretion over decisions to reopen in light of explicit granting of discretion in other areas, including in another issue related to motions to reopen, urges adoption of Kucana’s and Holder’s construction, Kucana argues. See Brief for Petitioner at 19, 23; Brief for Respondent at 19. Holder points out that the surrounding sections of the statute rely on the statutory provisions, not regulations, to define their scope. See Brief for Respondent at 28–29. It also notes that § 1252(b) of the statute mentions judicial review of motions to reopen. See id. at 30.

The court-appointed amicus, on the other hand, points to other aspects of the text of the statute to support her position. She argues that the broad language of the statute, which uses terms such as “any other decision or action” and “notwithstanding any other provision of law (statutory or nonstatutory),” counsels interpreting the judicial review bar to apply to regulations promulgated in pursuance of the statute as well as the statute itself. See Brief for Court-Appointed Amicus Curiae at 21–24. The Court-appointed amicus also argues that where Congress intended to limit the application of § 1252(a)(2)(B)(ii), it did so: § 1252 (a)(2)(B) exempts issues referred to in subparagraph (D) of the section, and § 1252(a)(2)(B)(ii) exempts “granting relief under section 1158(a) of this title.” 8 U.S.C. § 1252(a)(2)(B); see Brief for Court-Appointed Amicus at 24–25. Because Congress provided limits on the applicability of the statutory section for those matters for which it did not want to bar judicial review, the amicus contends, its failure to provide such an exception for motions to reopen evidences a congressional intent to allow judicial review to be barred for this sort of action if the Secretary or the Attorney General desire. See Brief for Court-Appointed Amicus at 24–25.

History of Immigration Legislation

The two sides contend that an examination of the history of Congress’ immigration regulation leads to the adoption of each of their respective desired interpretations of the statute. Holder points out that immigrants could file motions to reopen before Congress granted them that right in 1996. See Brief for Respondent at 31. In the same legislation that granted the right, Congress enacted § 1252(a)(2)(B)(ii), but “made no suggestion that that provision applied to motions to reopen.” Id. at 14. Since courts of appeals had long reviewed motions to reopen prior to the 1996 statute, and Congress codified the right to file such motions without evincing an intent to alter the right by making them subject to the Attorney General’s discretion, the government reasons that motions to reopen should remain subject to judicial review. See id. at 31–32.

The Court-appointed amicus, on the other hand, contends that the 1996 Illegal Immigration Reform and Immigrant Responsibility Act was intended to curtail immigrant abuse of the judicial system, and § 1252(a)(2)(B) was the “centerpiece” of this effort. Brief for Court-Appointed Amicus at 11, 29. With this provision, Congress intended to greatly reduce the ability of immigrants to seek judicial reviews of deportation orders in the courts of appeals. See id. at 31. Construing the provision narrowly, the Court-appointed amicus argues, would go against Congress’ clear intent to reduce the immigrant caseload burdening the federal court system and facilitate the efficient removal of illegal aliens from the United States. See id. In addition, the Attorney General had discretion over motions to reopen for almost a century prior to the 1996 act, and the regulation granting the Attorney General this discretion was promulgated prior to the passage of the act. See id. at 34. In light of this history, the Court-appointed amicus argues, Congress’ language should be read to allow the Attorney General to retain discretion over motions to reopen, and therefore judicial review should be prohibited. See id.

Canons of Statutory Construction

While both sides argue that the statute is unambiguous, albeit in different meanings, Kucana argues that even if the statute is ambiguous, rules of statutory construction argue against the Seventh Circuit’s interpretation. See Brief for Petitioner at 26. He contends that there are three separate principles of interpretation that counsel adopting his desired interpretation. See id. First, there is a presumption favoring judicial review of administrative action, which clearly supports his contention that motions to reopen should be reviewed. See id. at 26–28. Second, he points to a rule that “a statutory provision should not be construed to render other provisions in the statute superfluous.” Id. at 28. Because § 1252(b) of the statute addresses judicial review of motions to reopen, it would be rendered superfluous if the statute is read to allow the Attorney General to bar judicial review of motions to reopen. See id. at 28–29. Third, the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien” should lead the court to adopt Kucana’s proposed interpretation, he argues. Id. at 33–34.

The Court-appointed amicus insists that because the language of the statute is not ambiguous, these canons of statutory construction do not apply. See Brief for Court-Appointed Amicus Curiae at 25. Under the Supreme Court’s jurisprudence, the Court-appointed amicus argues, these canons may only be invoked when there is some uncertainty in the statute; as no such ambiguity exists here, they are immaterial. See id. at 25–28.

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Conclusion

In this case, which centers primarily around the proper interpretation of a single word — “under” — in 8 U.S.C. § 1252(a)(2)(B)(ii), both sides look to broader sources, including the text of the entire statute, general rules of statutory construction, and Congress’ long history of immigration regulation to support their contentions. The Supreme Court’s decision will likely have a far-reaching impact on the ability of immigrants to avail themselves of the federal court system to contest deportation orders.

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Authors

Prepared by: Rebecca Vernon and Mian Wang

Edited by: Lara Haddad

Additional Sources

·  Wex: Law about Immigration

·  ImmigrationProf Blog: Supremes Grant Cert in Motion to Reopen Case

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