Supreme Court Says Courts May Review Motions to Reopen

Earlier this year, the U.S. Supreme Court ruled that individuals who seek to reopen their deportation orders have the right to appeal to the federal courts if the immigration court refuses to hear the appeal.

In that case, Agron Kucana moved to reopen his removal proceedings on the basis of new evidence in support of his plea for asylum. An Immigration Judge denied the motion and the Board of Immigration Appeals sustained the ruling.  The Seventh Circuit (unlike many other circuits) concluded that it lacked jurisdiction to review the administrative determination due to a provision added to the Immigration and Nationality Act stating 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).

The central issue before the Court was whether this provision only applied to decisions made discretionary by statute, or whether (as the Seventh Circuit believed) it also applied to decisions made discretionary by regulation.  The regulations contain a provision stating 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).

The Court stated while the Board of Imigration Appeals has broad discretion to grant or deny a motion to reopen, the courts retain jurisdiction to review that decision.  The Court went on to describe the ability to review as an important procedural safeguard in immigration proceedings.