A court of appeals also may set aside a decision in which the BIA has abused its discretion in applying the law to the facts-7th Cir

Kucana v. Holder, No. 07-1002
"The Supreme Court remanded this proceeding to the 7th Circuit for decision on the merits after holding that 8 U.S.C. §1252(a)(2)(B) does not affect judicial review of situations in which immigration officials’ discretion is specified by regulation rather than statute. Kucana v. Holder, 130 S. Ct. 827 (2010). Our original opinion, 533 F.3d 534 (7th Cir. 2008), had held that No. 07-1002 a decision by the Board of Immigration Appeals declining to reopen a removal proceeding may be reviewed only to determine whether the Board misunderstood a regulation, a statute, or the Constitution. 8 U.S.C. §1252(a)(2)(D).  The Justices concluded that a court of appeals also may set aside a decision in which the Board has abused its discretion in applying the law to the facts.

Agron Kucana contends that the Board abused its discretion in two ways: by not discussing an affidavit submitted in support of the motion to reopen, and by disregarding his eligibility for adjustment of status. Our 2008 opinion understood the second of these arguments to be a legal one and rejected it as forfeited: Kucana did not make such an argument to the Board, which is not required to consider possibilities never presented for decision. 533 F.3d at 538–39. It is unnecessary for us to revisit that subject. The only remaining question concerns the Board’s decision not to mention the affidavit."

On remand from the Supreme Court for a ruling on the merits after its holding that 8 U.S.C. section 1252(a)(2)(B) does not affect judicial review of situations in which immigration officials' discretion is specified by regulation rather than statute, and that a court of appeals also may set aside a decision in which the Board has abused its discretion in applying the law to the facts, Albanian citizen's petition for review of the BIA's refusal to reopen removal proceedings is denied as the Board's conclusion that the evidence did not show a material adverse change in country conditions between 2002 and 2006 did not constitute an abuse of discretion.

Law professor Amanda Leiter (Catholic) argued as amicus against judicial review because Solicitor General Elena Kagen agreed with the petitioner on the availability of judicial review of the denial of a motion to reopen.

Having overslept, Kucana, a citizen of Albania, missed a hearing on his asylum and withholding of removal claims. He sought a motion to reopen the proceedings, which the immigration court and BIA denied. The Seventh Circuit dismissed the petition for review for lack of jurisdiction, a holding in conflict with six other circuits. The Suoereme Court granted certiorari to resolve the conflict.

Justice Ruth Bader Ginsburg wrote the opinion for the Court. Justice Samuel Alito concurred in the judgment. The Court ruled that the applicable provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 by its terms only barred the review of the discretionary judgments by the Attorney General, not the discretionary determinations delegated by the Attorney General to the Board of Immigration Appeals. Thus, the Court held that courts of appeals have the authority to review denials of motions to reopen by the BIA.

The Court expressed the view that a motion to reopen is an "'important safeguard'" (citing Dada v. Mukasey, 554 U.S. 1 (2008). This is a very different approach to motions to reopen than seen in years past, with the Court (INS v. Wang (1981) and INS v. Abudu (1988)) emphasizing the need for the courts to defer to the judgment of the BIA on motions to reopen. In the Court's estimation, the language of the statute, the history of the statute and regulations, and the presumption favoring judicial review of administrative action, all militated in favor of judicial review of the denial of a motion to reopen.