Friday, January 16, 2015
The Supreme Court granted certiorari today in Mata v. Holder. The issue in the case is whether the Fifth Circuit (per curiam) erred in in holding that it lacked jurisdiction to review petitioner's request that the Board of Immigration Appeals (BIA) equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).
The Court's order invited William Peterson of Houston, Texas to brief and argue this case, as amicus curiae, in support of the judgment below. In responding to the cert petition, the United States agreed with petitioner that the court of appeals erred in denying his petition for review for lack of jurisdiction. It is always hard to say but my bet is that judicial review will prevail in this instance.
This is not the first time that the Obama administration has not defended a court of appeals ruling that the court of appeals lacked jurisdiction to review a BIA decision. In Kucana v. Holder, law professor Amanda Leiter argued as amicus against judicial review of a BIA denial of a motion to reopen because Solicitor General Elena Kagan agreed with the petitioner on the availability of judicial review. The Seventh Circuit, in an opinion by Chief Judge Frank Easterbrook, had dismissed the petition for review for lack of jurisdiction, a holding in conflict with six other circuits. Justice Ruth Bader Ginsburg wrote the opinion for the Court finding that judicial review had not been precluded by 1996 immigration reforms.
Although the judicial review issue arises in very different setting, the Obama administration is aggressively arguing against judicial review of State Department consular officer visa decisions (and in favor of the doctrine of consular nonreviewability) in Kerry v. Din, which will be argued before the Supeme Court on February 23.