18 Mar 2010
The short answer, YES, if it relates to a procedural immigration matter and not expressly prohibited by a statute, it may be reviewed as held in the January 2010 Supreme Court decision of Kucana v Holder. cf 130 S. Ct. 827, (2010). This by no means implies that the Albanian immigrant Agron Kucana will ultimately prevail in his motion to reopen his removal proceedings. The Supreme Court merely reversed the lower court decision against judicial review and remanded the case for further consideration consistent with the Supreme Court’s decision.
Agron Kucana arrived in the United States under a three month Business Visa, he then applied for asylum, however he OVERSLEPT and arrived fifteen minutes after his hearing and was therefore ordered removed in absentia. This saga brings up many important factors in immigration law, including congressional intent, executive discretion and the court’s ability to or in some cases the court’s inability to review. This inability to review is often unique in immigration matters as the congress has nearly plenary power to create immigration law and in many cases can prohibit judicial review.