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.
18 Mar 2010
Legal Issue: What is the scope of jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and does this statute remove jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?
8 U.S.C.S. § 1252(a)(2)(B) states that no court shall have jurisdiction to review any action of the U.S. Attorney General the authority for which is specified under the subchapter of the statute to be in the discretion of the Attorney General.
A motion to reopen removal proceedings must state the new facts that will be proven at a hearing to be held if the motion is granted, and must be supported by affidavits or other evidentiary material. 8 U.S.C.S. § 1229a(c)(7)(B). The motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal. § 1229a(c)(7)(C)(i). Among matters excepted from the 90-day limitation are motions to reopen asylum applications because of changed conditions in the country of nationality or removal.
When a statute is reasonably susceptible to divergent interpretation, a court adopts the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. The court applies that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. Because the presumption favoring interpretations of statutes to allow judicial review of administrative action is well-settled, the court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption.