Wednesday, January 20, 2010

BREAKING NEWS: Immigrants Win Another in the Supreme Court!

Immigrants are continuing their winning ways in the Supreme Court.  Last Term, immigrants won 3 of 4 Supreme Court immigration cases.  Today, we have another win for immigrants!

Here is the full text of the Supreme Court's decision today in Kucana v. Holder, which was argued in November.  In that case, the law professor Amanda Leiter (Catholic) argued as amicus against judicial review because Solicitor General Elena Kagen agreed with the petitioner on the availability of judicial review of the denial of a motion to reopen.

Having overslept, Kucana, a citizen of Albania, missed a hearing on his asylum and withholding of removal claims.  He sought a motion to reopen the proceedings, which the immigration court and BIA denied.  The Seventh Circuit dismissed the petition for review for lack of jurisdiction, a holding in conflict with six other circuits.  The Suoereme Court granted certiorari to resolve the conflict.

Justice Ruth Bader Ginsburg wrote the opinion for the Court.  Justice Samuel Alito concurred in the judgment.  The Court ruled that the applicable provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 by its terms only barred the review of the discretionary judgments by the Attorney General, not the discretionary determinations delegated by the Attorney General to the Board of Immigration Appeals.  Thus, the Court held that courts of appeals have the authority to review denials of motions to reopen by the BIA.    

The Court expressed the view that a motion to reopen is an "'important safeguard'" (citing Dada v. Mukasey, 554 U.S. 1 (2008).  This is a very different approach to motions to reopen than seen in years past, with the Court (INS v. Wang (1981) and INS v. Abudu (1988)) emphasizing the need for the courts to defer to the judgment of the BIA on motions to reopen.  In the Court's estimation, the language of the statute, the history of the statute and regulations, and the presumption favoring judicial review of administrative action, all militated in favor of judicial review of the denial of a motion to reopen.


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