Supreme Court Hears Immigration Case: Kucana v. Holder (08-911)

On November 10, 2009, the United States Supreme Court heard oral arguments on a case that arose from the United States Court of Appeals for the Seventh Circuit, Kucana v. Holder (08-911).

The issue in the case involves whether 8 U.S.C. Section 1252(a)(2)(B)(ii) precludes federal courts from reviewing rulings of the Board of Immigration Appeals relating to motions to reopen.

Factually the case involves a citizen from Albania that over slept his alarm, and missed his immigration court hearing. As a result, his application for asylum was denied and the IJ ordered his removal in absentia.

Kucana ultimately appealed to the Seventh Circuit Court of Appeals to review the Board's ruling denying his motion to reopen, but the Seventh Circuit refused to reverse the BIA, ruling that the Circuit Court did not have jurisdiction to review the BIA's denial of the motion to reopen in disagreement with several other Circuits that have found that they do maintain jurisdiction.

Shockingly, the Supreme Court of the United States granted cert in this case. As they say in the immigration trenches: bad facts make bad law. I'm crossing my fingers. Personally, I just don't have a ton of sympathy for someone who overslept his alarm. I'm sure I'm not alone.

The U.S. Supreme Court granted certiorari in order to clarify whether a court has jurisdiction to review a decision by the Board of Immigration Appeals to reopen an alien’s immigration proceeding under 8 U.S.C. § 1252(a)(2)(B)(ii).

The question presented is whether Judicial review of an immigrant's legal claim is set forth in 8 U.S.C. § 1252(a)(2)(B)(ii), which limits judicial review of discretionary denials by the Attorney General or the Secretary of Homeland Security, and in what situation does a Federal Appeals Court have jurisdiction to review an immigrant’s petition to reopen an immigration proceeding that was based on a discretionary denial.

More specifically, the Court must address whether the Attorney General's discretionary authority is "specified" under 8 U.S.C. § 1252(a)(2)(B)(ii) and includes a decision of the Board of Immigration to deny an alien’s motion to reopen an immigration proceeding.

Click here to read the transcript of the oral argument.

Click here for the SCOTUS Wiki on the case.