Wednesday, January 20, 2010

U.S. Supreme Court ruling preserves the right to judicial review for immigrants facing deportation.

HELD: Section 1252(a)(2)(B)’s proscription of judicial review applies only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation.

Kucana v. Holder (PDF)

(a) 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, ___. Federal-court review of adminis-trative decisions denying motions to reopen removal proceedings dates back to at least 1916, with the courts employing a deferential abuse of discretion standard of review. While the Attorney General’s regulation in point, 8 CFR §1003.2(a), places the reopening decision within the BIA’s discretion, the statute does not codify that prescription or otherwise “specif[y]” that such decisions are in the Attorney General’s discretion. Pp. 6–7.

(b) Section 1252(a)(2)(B) does not proscribe judicial review of denials of motions to reopen. Pp. 8–16.

(1) The amicus defending the Seventh Circuit’s judgment urges that regulations suffice to trigger §1252(a)(2)(B)(ii)’s proscription. She comprehends “under” in “authority . . . specified under this subchapter” to mean, e.g., “pursuant to,” “subordinate to.” Administrative regulations count for §1252(a)(2)(B) purposes, she submits, be-cause they are issued “pursuant to,” and are measures “subordinate to,” the legislation they serve to implement. On that reading,§1252(a)(2)(B)(ii) would bar judicial review of any decision that an executive regulation places within the BIA’s discretion, including the decision to deny a motion to reopen. The parties, on the other hand, read the statutory language to mean “specified in,” or “specified by,” the sub-chapter. On their reading, §1252(a)(2)(B)(ii) precludes judicial review only when the statute itself specifies the discretionary character of the Attorney General’s authority. Pp. 8–9.

(2) The word “under” “has many dictionary definitions and must draw its meaning from its context.” Ardestani v. INS, 502 U. S. 129, 135. Examining the provision at issue in statutory context, the parties’ position stands on firmer ground. Section 1252(a)(2)(B)(ii) is far from IIRIRA’s only jurisdictional limitation. It is sandwiched between two subsections, §1252(a)(2)(A) and §1252(a)(2)(C), both dependent on statutory provisions, not on any regulation, to define their scope. Given §1252(a)(2)(B)’s statutory placement, one would expect that it, too, would cover statutory provisions alone. Pp. 9–11.

(3) Section 1252(a)(2)(B)(i) places within the no-judicial-review category “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255.” Each of the referenced statutory provisions addresses a different form of discretionary relief from removal and contains language indicating that the decision is entrusted to the Attorney General’s discretion. Clause (i) does not re-fer to any regulatory provision. The proximity of clause (i) and the clause (ii) catchall, and the words linking them—“any other decision” suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute. Pp. 11–12.

The Illegal Immigration Reform and Immigrant Responsibility Act of1996 (IIRIRA) amended the Immigration and Nationality Act (INA or Act), codifying certain rules, earlier prescribed by the Attorney General, that govern the process of reopening removal proceedings. IIRIRA also added a provision stating that no court has jurisdiction to review any action of the Attorney General “the authority for which is specified under this sub-chapter to be in the discretion of the Attorney General.” 8 U. S. C. §1252(a)(2)(B)(ii). A regulation, amended just months before IIRIRA’s enactment, provides that “[t]he decision to grant or deny a motion to reopen . . . is within the discretion of the [Board of Immigration Appeals (BIA)],” 8 CFR §1003.2(a). As adjudicator in immigration cases, the BIA exercises authority delegated by the Attorney General. Petitioner Kucana moved to reopen his removal proceedings, asserting new evidence in support of his plea for asylum. An Immigration Judge denied the motion, and the BIA sustained that ruling. The Seventh Circuit concluded that it lacked jurisdiction to review the administrative determination, holding that §1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also of those made discretionary by regulation.

(4) Also significant is the character of the decisions insulatedfrom judicial review in §1252(a)(2)(B)(i). The listed determinations are substantive decisions the Executive makes involving whether or not aliens can stay in the country. Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind. See, e.g., §1157(c)(1). Decisions on reopening motions made discretionary by regulation, in contrast, are adjunct rulings. 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. Had Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation as well as by statute, moreover, Congress could easily have said so, as it did in provisions enacted simultaneously with §1252(a)(2)(B)(ii). See, e.g., IIRIRA, §213, 110 Stat. 3009–572. Pp. 12–14.

(5) The history of the relevant statutory provisions corroborates this determination. Attorney General regulations have long ad-dressed reopening requests. In enacting IIRIRA, Congress simultaneously codified the process for filing motions to reopen and acted tobar judicial review of a number of executive decisions regarding removal. But Congress did not codify the regulation delegating to the BIA discretion to grant or deny reopening motions. This legislative silence indicates that Congress left the matter where it was pre-IIRIRA: The BIA has broad discretion, conferred by the Attorney General, “to grant or deny a motion to reopen,” 8 CFR §1003.2(a), but courts retain jurisdiction to review the BIA’s decision. It is unsurprising that Congress would leave in place judicial oversight of this “important [procedural] safeguard,” Dada, 554 U. S., at ___, where, as here, the alien’s underlying asylum claim would itself be reviewable. The REAL ID Act of 2005, which further amended the INA by adding or reformulating provisions on asylum, protection from removal, and even judicial review, did not disturb the unbroken line of decisions upholding court review of administrative denials of motions to reopen. Pp. 14–16.

(c) Any lingering doubt about §1252(a)(2)(B)(ii)’s proper interpretation would be dispelled by a familiar statutory construction principle: the presumption favoring judicial review of administrative action. When a statute is “reasonably susceptible to divergent interpretation,” this Court adopts the reading “that executive determinations generally are subject to judicial review.” Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 434. The Court has consistently applied this interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. See, e.g., Reno v. Catholic Social Services, Inc., 509 U. S. 43, 63–64. Because this presumption is “ ‘well-settled,’ ” ibid., the Court assumes that “Congress legislates with knowledge of” it, McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496. It therefore takes “ ‘ “clear and convincing evidence” ’ ” to dislodge the presumption. Catholic Social Services, Inc., 509 U. S., at 64. There is no such evidence here. Finally, reading §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the BIA by regulation would ignore Congress’ design to retain for itself control over federal court jurisdiction. 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. Pp. 16–17. 533 F. 3d 534, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment.

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Sunday, January 17, 2010

Ortega v. Holder: Declaration of nationality

Individuals can file an administrative application for a certificate of citizenship, which if denied, could be pursued by way of an action under 8 U.S.C. section 1503(a). In an action for a declaration of nationality pursuant to 8 U.S.C. section 1503(a), district court's grant of the government's motion to dismiss for lack of subject matter jurisdiction is reversed and remanded as the language of section 1503(a)(1), read within the context of section 1503(a) and also read in conjunction with related provisions of Title 8, makes it clear that Congress intended individuals to pursue one of two routes to establish claims for nationality.

No. 08-3642 (01/15/2010):

Ortega v. Holder (Ripple)
Oral Argument | Full Text

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Thursday, January 14, 2010

Matter of Gabriel GAMERO Perez: BIA will not reinstate voluntary departure absent proof of bond being posted

  1. Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with theDepartment of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted.
  2. Where the Immigration Judge did not provide all the advisals that are required upon granting voluntary departure and the respondent failed to submit timely proof to theBoard that a voluntary departure bond had been posted, the record was remanded for the Immigration Judge to grant a new period of voluntary departure and to provide the required advisals.


Tuesday, January 12, 2010

Immigration suppression motion results, how individual IJs and BIA panels have analyzed the issues

The following are IJ and BIA decisions on motions to suppress and motions to terminate. In each of these cases, the respondents in removal proceedings asked the IJ to suppress or exclude the government’s evidence or otherwise terminate proceedings. These decisions are not meant to be representative of the way in which the agency is deciding these motions, but they do illustrate how individual IJs and BIA panels have analyzed the issues.
LAC collects suppression motion results

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Friday, January 8, 2010

Battle Over Immigration: Washington Post's coverage of the immigration issue, Political Debate, Border & Beyond

The Washington Post's coverage of the immigration issue, from the politics of revising the nation's immigration laws to the impact of illegal immigration on the U.S.-Mexico border and the Washington region.