Discretion. The better part of valor. A sentiment that the foolish lack. The only thing more dangerous than a friend without discretion is the inability to police it. Like the jewel of gold in the swine’s snout, so too is the Immigration & Nationality Act without judicial review of the Attorney General’s discretionary decisions.
We like Kucana v. Holder, __ U.S. __, 08-911, the Supreme Court’s decision from January 20, 2010. It doesn’t sweep broadly, it doesn’t reach out and decide unnecessary issues. But it also didn’t avoid the issues presented by adopting Justice Alito’s overly narrow reading of the statute (in his concurrence). Its effect will be modest but positive. Courts will now again review denials of reopening – and continuances and similar rules – for abuse of discretion. Which is how it should be.
In particulars, the question before the Supreme Court was:
Whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals.
Motions to reopen are specified as discretionary in the regulations, but not the statute. The Supreme Court had to decide whether it was sufficient to trigger 1252(a)(2)(B)(ii) for something to be specified as discretionary under the regulations. The answer, in short, was no. Justice Ginsburg wrote for a unanimous court, with Justice Alito concurring in the judgment, reversing the CA7′s decision to the contrary.
The analysis was impressively textual (not a surprise from Justice Ginsburg). In isolation, the Court thought the term, specified “under,” to be ambiguous. Relying on fairly standard canons of statutory construction, the Court looked to other indicia. It looked to the placement of (B)(ii), noting that 1252(a)(2)(A) and 1252(a)(2)(C) are both entirely focused on other statutory provisions. It compared (B)(ii) with (B)(i), which bars review over specified types of relief in the statute. It also compared the types of relief for which (B)(i) bars jurisdiction, noting that they were “substantive decisions” which decide whether someone can stay or must go.
Decisions on reopening motions made discretionary by regulation, in contrast, are adjunct rulings: The motion to reopen is a procedural device serving to ensure “that aliens [a]re getting a fair chance to have their claims heard.” Tr. of Oral Arg. 17. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing
The Court also looked to the the history of the statute. In 1996, at the same time Congress adopted IIRIRA’s jurisdiction-stripping provisions (including (a)(2)(B)(ii)), Congress it codified most of the regulations pertaining to reopening, but left the discretionary language in the regulations out of the statute. Nor did Congress change that in Real ID, though a ton of CtApps had interpreted (B)(ii) as not barring jurisdiction over reopening.
And then of course, there’s a general presumption in favor of reviewability of administrative decisions.
Thus, the Kucana decision put to rest a question that had been percolating for some time in the Courts of Appeal.
Other issues remain (and we are grateful that the Court did not reach out to decide these questions). The Court flagged two issues which it did not decide: (a) whether the bars to review over discretionary relief (e.g., adjustment of status) would thus bar review over reopening decisions in that context, and (b) whether sua sponte reopening would be beyond federal court jurisdiction, notwithstanding today’s decision. Unflagged but no less important were several other issues not addressed in Kucana. The Court didn’t take a position on the holdings of many Courts of Appeals (endorsed by Zadvydas) that 1252(a)(2)(B) only bars review over discretionary decisions, as opposed to findings of law or fact. It didn’t address what precise language would be required to trigger 1252(a)(2)(B)(ii); i.e., does the statute need to use the actual word “discretion”; is it sufficient to use permissive language such as “may”; or must the courts examine the entire statutory context to determine whether something is discretionary? The Court didn’t say. Finally, it might be that Kucana’s claims could have been characterized as questions of law under 1252(a)(2)(D), at least under the CA9′s rule in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007); but the Supreme Court said nothing of that.
Justice Alito concurred separately to note that the regulations had promulgated under the authority of 8 USC 1103(a), which is in subchapter 1 of the INA. Because 1252(a)(2)(B)(ii) only applies to items specified as discretionary in subchapter 2 of Title 8; thus, if the reopening regs were specified under 1103(a), there would be no need to reach the questions decided by the Court. He would have decided the case on those narrower grounds.
–guest blogging by Chuck Roth. Chuck is the Director of Litigation at the National Immigrant Justice Center, www.immigrantjustice.org, and is the author of a blog of federal court decision summaries at www.immigrantjustice.org/litigationupdate