Judicial review of discretionary actions

From SCOTUSblog: "Scope of IIRIRA’s jurisdictional bar". This is a decision about judicial review in a very narrow context, but there are some interesting phrases.

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. ...

[T]he 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.” ... 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.

See also the LII analysis here. EMM