Supreme Court: Is there Judicial Review of BIA’s Denial of Motion to Reopen?

By University of Denver Sturm College of Law

Apr 30, 2009

After announcing earlier this week that it would hear arguments in Kucana v. Holder, No. 08-911, the Supreme Court is now expected to clarify whether federal courts have jurisdiction to review the BIA’s denial of a motion to reopen. As immigration attorneys know, motions to reopen are frequently filed for a number of reasons.

Kucana’s claim is not out of the ordinary. Kucana, an asylum applicant from Albania, claims to have slept through his alarm and missed a scheduled hearing. The IJ entered an order of removal in absentia. Kucana, who allegedly arrived at the court a few minutes later, filed a timely motion to reopen with the IJ. The IJ denied that motion and Kucana appealed to the BIA. The BIA denied the motion.

Four years later Kucana filed another MTR based on changed circumstances—worsening conditions in Albania and an approved I-130, Petition for Alien Relative, filed by his mother. That motion was also denied and again Kucana appealed to the BIA. The BIA denied that motion as well.

This time Kucana appealed to the Seventh Circuit. Instead of ruling on the merits, the Seventh Circuit held that it did not have jurisdiction to hear the appeal. According to the Seventh Circuit’s decision, the jurisdiction stripping provision of IIRIRA—codified at 8 USC § 1252(a)(2)(b)(ii)–prohibits federal courts from reviewing the BIA’s decision because, according to regulation, motions to reopen are discretionary. Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008).

The United States agrees that the Seventh Circuit’s decision clashes with other circuits, specifically the Second, Third, Fifth, Eight, Ninth, and Tenth Circuits. Interestingly, the government actually sides with the majority of circuits’ interpretation if IIRIRA’s jurisdiction stripping provision—and against the Seventh Circuit’s decision: “Given the general presumption in favor of judicial review, St. Cyr, 533 U.S. at 298, and the terms of Section 1252(a)(2)(b)(ii), the government agrees with the majority of circuit courts that the Board’s discretionary decision to deny a motion to reopen is not covered by the jurisdictional bar in 8 U.S.C. 1252(a)(2)(b)(ii).” The government nonetheless opposed cert because Kucana, it argues, is unlikely to win on the merits even if he wins on the jurisdictional issue.