Tuesday, April 28, 2009
The Supreme Court granted certiorari yesterday in a motion to reopen decision of the Seventh Circuit. See the SCOTUSblog description for more information.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIA), which, among other things, stripped courts of jurisdiction to review any “decision or action . . . the authority for which is specified under this subchapter to be in the discretion of” the Attorney General. The Court granted certiorari to resolve one of the circuit splits that has arisen regarding the proper construction of this provision. In Kucana v. Holder, 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.
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.
The Court's decision in Kucana could have far-reacihing impacts because the Immigration & Nationality Act bestows discretion to the Attorney General for many different decisions and forms of relief.
Here is a link, courtesy of Bender's Immigration Bulletin to the decision below, the docket, and the question presented.