Kucana v. Holder

• Decision Date: 20 January 2010
• Docket Number: No. 08–911.,08–911.
• Citation: 558 U.S. 233,130 S.Ct. 827,175 L.Ed.2d 694
• Parties: Agron KUCANA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General.
• Court: U.S. Supreme Court

558 U.S. 233

130 S.Ct. 827

175 L.Ed.2d 694

Agron KUCANA, Petitioner

v.Eric H. HOLDER, Jr., Attorney General.

No. 08–911.

Supreme Court of the United States

Argued Nov. 10, 2009.

Decided Jan. 20, 2010.

Rick M. Schoenfield, Chicago, IL, for petitioner.

Nicole A. Saharsky, Washington, DC, for respondent supporting petitioner.

Amanda C. Leiter, appointed by this court as amicus curiae, supporting judgment below.

Elena Kagan, Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for respondent.

Elaine J. Goldenberg, Lindsay C. Harrison, Jenner & Block LLP, Washington, DC, Rick M. Schoenfield, Counsel of Record, DiVincenzo Schoenfield Swartzman, Chicago, IL, Michael R. Lang, Michael R. Lang & Associates, Chicago, IL, for petitioner.

Elena Kagan, Solicitor General, Counsel of Record, Tony West, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Juan Osuna, Deputy Assistant Attorney General, Nicole A. Saharsky, Assistant to the Solicitor General, Donald E. Keener, Bryan S. Beier, Jennifer P. Levings, Melissa Neiman–Kelting, Department of Justice, Washington, DC, for petitioner.

Elaine J. Goldenberg, Lindsay C. Harrison, Eric R. Haren, Julia K. Martinez, Caroline D. Lopez, not admitted in DC, supervised by principals of the firm, Jenner & Block LLP, Washington, DC, Rick M. Schoenfield, Counsel of Record, DiVincenzo Schoenfield Swartzman, Chicago, IL, Michael R. Lang, Michael R. Lang & Associates, Chicago, IL, for Petitioner.

Opinion

Justice GINSBURG delivered the opinion of the Court.

Petitioner Agron Kucana moved to reopen his removal proceedings, asserting new evidence in support of his plea for asylum. An Immigration Judge (IJ) denied the motion, the Board of Immigration Appeals (BIA or Board) sustained the IJ's ruling, and the U.S. Court of Appeals for the Seventh Circuit concluded that it lacked jurisdiction to review the administrative determination. For that conclusion, the court relied on a provision added to the Immigration and Nationality Act (INA or Act), 66 Stat. 166, 8 U.S.C. § 1101 et seq ., by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546. The provision found dispositive by the Seventh Circuit, 8 U.S.C. § 1252(a)(2) (B), states that no court shall have jurisdiction to review any action of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General,” § 1252(a)(2)(B)(ii) (emphasis added).

We granted certiorari to decide whether the proscription of judicial review stated in § 1252(a)(2)(B) applies not only to Attorney General determinations made discretionary by statute, but also to determinations declared discretionary by the Attorney General himself through regulation. We hold that the key words “specified under this subchapter” refer to statutory, but not to regulatory, specifications. We so rule based on the longstanding exercise of judicial review of administrative rulings on reopening motions, the text and context of § 1252(a)(2)(B), and the history of the relevant statutory provisions. We take account, as well, of the “presumption favoring interpretations of statutes [to] allow judicial review of administrative action.” Reno v. Catholic Social Services, Inc., 509 U.S. 43, 63–64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (quoting McNary v. Haitian Refugee Center, Inc ., 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) ). Separation-of-powers concerns, moreover, caution us against reading legislation, absent clear statement, to place in executive hands authority to remove cases from the Judiciary's domain.

I

A

In IIRIRA, Congress for the first time codified certain rules, earlier prescribed by the Attorney General, governing the reopening process. The amended Act instructs that reopening motions “shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.” § 1229a(c)(7)(B). Congress also prescribed that “the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.” § 1229a(c)(7)(C)(i). Among matters excepted from the 90–day limitation are motions to reopen asylum applications because of changed conditions in the country of nationality or removal. § 1229a(c)(7)(C)(ii).

Section 1252(a)(2), captioned “Matters not subject to judicial review,” contains the provision on which this case turns. Subparagraph (B) of that paragraph, headed “Denials of discretionary relief,” states:

“Notwithstanding any other provision of law (statutory or nonstatutory), ... except as provided in subparagraph (D),^{[ 1 ]} and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—

“(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title,^{[ 2 ]} or

“(ii) any other decision or action of the Attorney General ... the authority for which is specified under this subchapter ^{[ 3 ]} to be in the discretion of the Attorney General ..., other than the granting of relief under section 1158(a) of this title.”⁴

A regulation, amended in 1996, just months before Congress enacted IIRIRA, 61 Fed.Reg. 18904, Pt. 3, § 3.2(a), states that “[t]he decision to grant or deny a motion to reopen ... is within the discretion of the Board.”8 CFR § 1003.2(a) (2009). As adjudicator in immigration cases, the Board exercises authority delegated by the Attorney General. See 8 U.S.C. § 1103(g)(2) ; 8 CFR § 1003.1. See also 8 CFR § 1003.23(b)(3) (governing motions to reopen filed with an IJ).

B

Kucana, a citizen of Albania, entered the United States on a business visa in 1995 and remained after the visa expired. Alleging that he would be persecuted based on his political beliefs if returned to Albania, Kucana applied for asylum and withholding of removal in 1996. An IJ determined that Kucana was removable and scheduled a hearing to evaluate his eligibility for asylum. When Kucana failed to appear for the hearing, the IJ immediately ordered his removal in absentia . Kucana filed a motion to reopen, explaining that he had missed his hearing because he had overslept. The IJ denied the motion, and the BIA affirmed in 2002. Kucana did not seek judicial review, nor did he leave the United States.

Kucana filed a second motion to reopen his removal proceedings in 2006, contending that conditions in Albania had worsened.⁵ The BIA denied relief; it concluded that conditions in Albania had actually improved since 1997. Arguing that the BIA had abused its discretion in denying his motion, Kucana filed a petition for review in the Seventh Circuit.

In a fractured decision, the Seventh Circuit dismissed the petition for lack of jurisdiction. Kucana v. Mukasey, 533 F.3d 534, 539 (2008). The court held that 8 U.S.C. § 1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also “when the agency's discretion is specified by a regulation rather than a statute.” 533 F.3d, at 536.⁶ In so ruling, the Seventh Circuit created a split between itself and other Courts of Appeals, all of them holding that denials of reopening motions are reviewable in court.⁷

Judge Ripple concurred dubitante . He acknowledged that the court was following an earlier decision, Ali v. Gonzales, 502 F.3d 659 (C.A.7 2007),⁸ but “suggest[ed] that, had Congress intended to deprive th[e] court of jurisdiction ..., it would have done so explicitly, as it did in 8 U.S.C. § 1252(a)(2)(B)(i).” 533 F.3d, at 540. The court, he concluded, should revisit both Ali and Kucana and “chart a course ... more closely adher [ing] to the statutory language chosen and enacted by Congress.” 533 F.3d, at 540.

Judge Cudahy dissented. Given the absence of “specific [statutory] language entrusting the decision on a motion to reopen to the discretion of the Attorney General,” ibid. (internal quotation marks omitted), he saw no impediment to the exercise of jurisdiction over Kucana's petition. In support of his position, Judge Cudahy invoked the “strong presumption that Congress intends judicial review of administrative action.” Id., at 541 (quoting Traynor v. Turnage, 485 U.S. 535, 542, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) ). With four judges dissenting, the Seventh Circuit denied Kucana's petition for rehearing en banc. See 533 F.3d, at 541–542 (dissenting statement of Ripple, J., joined by Rovner, Wood, and Williams, JJ.).

We granted certiorari, 556 U.S. ––––, 129 S.Ct. 2075, 173 L.Ed.2d 1132 (2009), to resolve the Circuit conflict. As it did before the Seventh Circuit, the Government agrees with Kucana that § 1252(a)(2)(B)(ii) does not remove federal-court jurisdiction to review the denial of a reopening motion. We appointed Amanda C. Leiter to brief and argue the case, as amicus curiae, in support of the Seventh Circuit's judgment. 557 U.S. ––––, 130 S.Ct. 30, 174 L.Ed.2d 613 (2009). Ms. Leiter has ably discharged her assigned responsibilities.

II

The motion to reopen is an “important safeguard” intended “to ensure a proper and lawful disposition” of immigration proceedings. Dada v. Mukasey, 554 U.S. 1, ––––, 128 S.Ct. 2307, 2317–19, 171 L.Ed.2d 178 (2008); cf. Stone v. INS, 514 U.S. 386, 401, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (analogizing motions to reconsider immigration decisions to motions for relief from a judgment under Federal Rule of Civil Procedure 60(b) ). Federal-court review of administrative decisions denying motions to reopen removal proceedings dates back to at least 1916. See Dada, 554 U.S., at ––––, 128 S.Ct., at 2314–15 (citing cases). This Court has ultimately reviewed reopening decisions on numerous occasions. See, e.g., INS v. Doherty, 502 U.S. 314, 322–324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) ; INS v. Abudu, 485 U.S. 94, 104–111, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) ; INS v. Rios–Pineda, 471 U.S. 444, 449–452, 105 S.Ct....