On January 20, the U.S. Supreme Court held in Kucana v. Holder that a law barring judicial review of discretionary decisions of the Attorney General applies only to decisions made discretionary by statute, not to decisions that the Attorney General himself declares as discretionary by regulation. In effect, the court reversed the Seventh Circuit Court’s ruling that it could not review the Board of Immigration Appeals’ denial of Kucana’s motion to reopen asylum proceeding based on 8 U.S.C. 1252(a)(2)(B)(ii). This law 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.” Before this law was enacted, the then-attorney general passed a regulation stating that decisions to grant or deny motions to reopen removal proceedings are within the Board’s discretion.

The Supreme Court reviewed the case to see whether a court may review a foreign national’s petition to reopen a removal proceeding. Kucana, a citizen of Albania, entered the United States on a business visa but remained beyond authorization and applied for political asylum. Kucana failed to appear at his immigration court hearing because he overslept. As a result, the immigration court denied his asylum application and issued a removal order against him.

Kucana filed a motion to reopen in 2002, which the Board denied. Four years later, having not yet been removed from the United States, Kucana filed a second motion to reopen, this time arguing that changed conditions in Albania made it more dangerous for him to return to his country, and asked for reconsideration of his asylum claim. After the Board denied Kucana’s second motion to reopen, he appealed to the Seventh Circuit, which dismissed his petition for lack of jurisdiction.

The Court observed that while the Attorney General's regulation gives the Board broad discretion to grant or deny motions to reopen, the courts retain jurisdiction to review the Board’s decision. As the Court noted, Congress did not codify the regulation or otherwise specify that such decisions are in the Attorney General's discretion.

In reversing the Seventh Circuit, the Supreme Court noted, “The motion to reopen is an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” The Court added that there was no "clear and convincing evidence" that Congress intended to preclude judicial review of motions to reopen. The Court also stated, “The Seventh Circuit’s construction would free the Executive to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions ‘discretionary.’ Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.”

The Court found that decisions on motions to reopen removal proceedings are essentially procedural decisions that have traditionally been subject to judicial review, and that the law had not changed in this regard. Ultimately, the Court reversed and remanded the case for further review. Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Roberts and Justices Stevens, Scalia, Kennedy, Thomas, Breyer, and Sotomayor joined. Justice Alito filed a separate opinion concurring in the judgment.

While the Kucana opinion benefits foreign nationals seeking to reopen removal proceedings, it leaves open several issues that the lower circuit courts will need to address. The Supreme Court limited its Kucana holding to the review of motions to reopen where the underlying form of relief sought by the foreign national is one that Congress specifically authorized the federal courts to review, including asylum. The Court declined to review whether jurisdiction exists where the relief underlying the motion to reopen is discretionary and usually not reviewable by the circuit courts, such as adjustment of status or cancellation of removal. Nonetheless, Kucana generally preserves judicial review for foreign nationals facing removal from the United States, particularly asylum seekers who are likely to be persecuted, tortured or killed if they return to their home countries.