KUCANA v. HOLDER
Agron Kucana, a citizen of Albania, entered the United States in 1995 and did not leave when his visa expired. Mr. Kucana applied for asylum but failed to appear at his hearing, after which he was ordered removed from the United States. He filed a motion to reopen his case, which was denied. On appeal, the Board of Immigration Appeals (BIA) affirmed. After failing to remove himself from the United States, Mr. Kucana once again moved to reopen his case, contending that conditions in Albania had deteriorated to the extent where his life would be in danger upon his return. His motion was denied.
On appeal to the U.S. Court of Appeals for the Seventh Circuit, he argued that the BIA "abused its discretion" in denying his claim when it failed to consider an affidavit testifying to the dangerous conditions existing in Albania. The Seventh Circuit held that it lacked jurisdiction to review the matter. It found that the BIA's decision not to reopen Mr. Kucana's case was "discretionary." 8 U.S.C. Section 1252(a)(2)(B)(ii) provides that "no court has jurisdiction to review" any decision that is under the discretion of the BIA. Therefore, the court reasoned that Mr. Kucana's claim was not reviewable by a federal court of appeals.
- Brief for Petitioner
- Brief of National Immigrant Justice Center, American Immigration Lawyers Association, Asian American Justice Center, Florida Immigrant Advocacy Center, Hebrew Immigrant Aid Society, Immigrant Law Center of Minnesota, Mexican American Legal Defense And Edu
- Brief Amicus Curiae of the American Civil Liberties Union In Support of Petitioner
Does 8 U.S.C. § 1252(a)(2)(B)(ii) bar judicial review for both administrative decisions made discretionary by statute and those made discretionary by regulation?
No. The Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii)'s proscription of judicial review applies only to determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation. With Justice Ruth Bader Ginsburg writing for the majority and joined by Chief Justice John G. Roberts and Justices John Paul Stevens, Antonin G. Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer, and Sonia Sotamayor, the Court reasoned that policy, the statute's language, and its history all indicate that § 1252(a)(2)(B)(ii) does not bar judicial review for administrative decisions made discretionary by regulation. At the heart of the Court's concern was preserving the separation of powers and avoiding a scenario where an Executive Branch order could preclude Judicial Branch review over a matter.
Justice Samuel A. Alito filed a separate opinion, concurring in the judgment. He agreed that the Seventh Circuit had jurisdiction to review the denial of Mr. Kucana's petition to reopen his removal proceeding. However, Justice Alito argued for a narrower holding. He stated that while some regulations issued by the Attorney General may be unreviewable, the regulation at issue in this case did not have that effect.
ORAL ARGUMENT OF RICK M. SCHOENFIELD ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument first this morning in Case 08-911, Kucana v. Holder.
Mr. Schoenfield: Mr. Chief Justice, and may it please the Court:
In enacting section 1252(a)(2)(B), Congress limited its reduction of judicial review to where the authority for the Attorney General's discretion is specified under subchapter 2 of chapter 12 of Title 8.
Congress did not express any intent to remove the Court's jurisdiction to review discretionary decisions, the authority for which is specified under any other subchapter or in regulations, nor did Congress express any intent to delegate its constitutional responsibility to determine Federal jurisdiction to the Attorney General--
Chief Justice John G. Roberts: Under what authority were these regulations issued?
Mr. Schoenfield: --The regulation that grants discretion with regard to motions to reopen comes from a section in subchapter 1, not subchapter 2, of the regulations.
And that was authorized by section 1103 of Title 8.
I should say it authorized the statute for the regulations in subchapter 1, not subchapter 2.
Justice Antonin Scalia: How does that -- how does that read?
I -- I recall the briefs say that, but I don't recall reading it.
Is it -- does it appear somewhere?
Mr. Schoenfield: --Section 1103, Your Honor?
Justice Antonin Scalia: The -- the provision that -- that you contend provides the authority for the Attorney General's regulation.
Mr. Schoenfield: Section 1103(g)(2) authorizes the Attorney General--
Justice Antonin Scalia: I know.
Where is it, I'm asking?
Is it -- is it in the brief somewhere?
You know, it's nice to know what we are talking about.
When -- when you are relying on a section, it would be nice to have it in the materials.
I mean, I guess I could send for it, but--
Mr. Schoenfield: --Sure.
It -- it indicates on page 18 of the reply brief, that, quote,
"Establish such regulations. "
"as he deems necessary for carrying out his authority under the provisions of this chapter. "
The fact that the statute we are focused on states that authority must be specified in this subchapter -- being subchapter 2--
Justice Ruth Bader Ginsburg: 2.
The -- the key word that is emphasized in this case is, it's "under", instead of "in".
Mr. Schoenfield: --The words used in the -- in the statute is "under", which, of course, has a variety of definitions.
We believe that taking the statute in context, that the correct definition to apply is "according to" or "within".
Justice Ruth Bader Ginsburg: It would be clearer if they had said "in".
Mr. Schoenfield: Congress could have said "in", but I think Congress made it clear by using the phrase "authority specified under", so we are not -- we don't have a situation where, as Congress usually would do, they would say
"a regulation under such-and-such a statute. "
where Congress uses the word "regulation".
There is the -- the term "regulation" is not used in the statute.
Chief Justice John G. Roberts: If you were to evaluate the validity of the regulation, as opposed to, like, an APA case or similar to that, what statutory provision would you look to to see if the regulation was consistent with that statutory provision?
Mr. Schoenfield: We would look to section 1103 in subchapter 1.
Justice Antonin Scalia: --So it really doesn't matter what "under" means, right?
I mean, even -- even if you accept the other interpretation of "under", to wit, that it includes regulations pursuant to the subchapter, your point is that this regulation is not even pursuant to the subchapter.
Mr. Schoenfield: That's absolutely correct, Your Honor.
Although we don't think regulations are included, even if they were, it's not in the subchapter.
Justice Antonin Scalia: I understand.
Chief Justice John G. Roberts: Well, but -- is that right?
Would -- would subchapter 1 give you much insight into the scope of the regulation and how it was a fair interpretation of the authority under which the Attorney General purported to act?
Mr. Schoenfield: I think that in terms of looking at the discretion of the Attorney General, historically, on motions to reopen, there have been -- there has been discretion.
What the regulation did was to codify that historical authority and to be consistent with what the Court said is always done, but I think, in interpreting the scope of Congress's intent to reduce judicial review, we need to be very careful about that, obviously.
And so, therefore, when it says
"as under authority specified in this subchapter. "
we need to find the authority in the subchapter, which we don't.
Justice Anthony Kennedy: The -- the subchapter 2 does talk about a special rule on reopening for battered spouses, children, and parents.
Is that a statute where the discretion is committed to the Attorney General?
Mr. Schoenfield: No, Your Honor, because subchapter 2 does not say that the Attorney General has discretion to decide motions to reopen.
That language is only found in the regulation.
The only reference--
Justice Anthony Kennedy: So it -- so, absent the regulation, you would interpret the statute as saying there is no discretion?
Mr. Schoenfield: --Absent the regulation, I would interpret the statute as being silent as to the--
Justice Anthony Kennedy: No, that wasn't my question.
Let's say there is no regulation.
And the statute says, number one, there shall -- so subchapter 2 of the statute says, number one, there shall be motions to reopen, and then there is a special rule for battered spouses.
Now, you would interpret that statute, absent any regulation, as saying this is not within the discretion of the Attorney General?
Mr. Schoenfield: --I would interpret the statute as not providing for discretion, yes, Your Honor.
Justice Anthony Kennedy: Well, how does an Attorney General decide without -- without using discretion?
He must grant, in any case?
Whether a battered spouse waits for 15 years, he must grant?
Just under the statute, now.
Mr. Schoenfield: No.
Justice Anthony Kennedy: This is hypothetical.
Mr. Schoenfield: Yes.
I'm -- I'm not trying to say that, Your Honor.
What I'm trying to say is--
Justice Anthony Kennedy: Well, then there must be a discretionary component implicit.
Mr. Schoenfield: --I would disagree in -- in this way: If the statute is silent as to whether there is discretion, the Court can look to -- the Court could look to other sources to determine--
Justice Ruth Bader Ginsburg: Could you clarify, what is the provision about battered spouses?
I thought that that had to do with you could have more than one petition to reopen.
Mr. Schoenfield: --That's correct, Your Honor.
Justice Ruth Bader Ginsburg: But the rule is, you may reopen once in that -- that provision on battered spouses, but if you are in that category, you can reopen again?
Mr. Schoenfield: I believe that's correct, Your Honor.
I believe that the provision on battered spouses creates in a -- allows you to bring more than one motion to reopen.
It does -- it does not address the issue of discretion.
Justice Antonin Scalia: Why -- why would it -- I don't -- the big obstacle I find with your position is that it doesn't make any sense.
Why would Congress want to exclude review for discretionary judgments by the Attorney General that are recited explicitly to be discretionary in the statute, but provide judicial review for judgments that are just as lawfully discretionary because the Attorney General is given the authority to make them discretionary and has done so?
I mean, a discretionary judgment is a discretionary judgment.
Why -- at least if it's a legitimate one, I can understand why you would say discretion which is given to the Attorney General under the statute, as opposed to discretion which he has wrongfully assumed, but -- but both -- both exercises of discretion are just as lawful, right, under the statute?
One is explicit in the statute, and the other is pursuant to the authority of the Attorney General to make it discretionary.
Why would Congress want the one to be subject to judicial review and not the other?
Mr. Schoenfield: Judicial review of motions to reopen has -- has been the traditional normal process for the Court to take.
I think what Congress was doing here was saying: In certain specified instances, we are going to remove judicial review, but not in all instances.
And the question is, where did Congress draw the line?
Justice Antonin Scalia: Yes, and I'm saying: Why is it a rational line to say -- I think it's a rational line to say, when lawful discretion is being exercised, since it's a discretionary judgment, you're not entitled to it anyway, and therefore, we won't review it.
That makes some sense.
And I -- but where discretion is lawfully exercised, why would -- why would Congress go, Oh, when the discretion is lawfully exercised because the statute says so, we have one approach, but where discretion is lawfully exercised only because the statute allows the Attorney General to prescribe discretion, we will not allow?
I don't understand why -- why it would want to do that.
Mr. Schoenfield: Well, let me suggest several reasons, Your Honor.
Justice Antonin Scalia: Okay.
Mr. Schoenfield: First, if the Court was to read the statute as allowing a regulation to create discretion and, therefore, to remove judicial review--
Justice Antonin Scalia: Well, you -- you don't -- you don't contest that the regulation can provide discretion.
You -- you don't say the regulation is invalid.
Mr. Schoenfield: --That's correct.
Justice Antonin Scalia: So it is a valid exercise of discretion, right?
Mr. Schoenfield: And courts frequently review decisions for abuse of discretion.
And motions to reopen, I would suggest, are particularly important because it creates a safety net for review.
It deals with -- like, rule 60 of the Federal rules deals with potentially new evidence, matters that weren't available to bring initially, and it's important that potential mistakes be reviewed.
Justice Anthony Kennedy: I just want to return for a moment to the battered spouse provision.
The battered spouse provision specifically says that in the Attorney General's discretion, he may waive the time limit for the one year for the battered spouse.
Now, that surely is discretion specified -- and I think the word 2.
So there should be no judicial review as to that.
You would have to agree with that, wouldn't you?
Mr. Schoenfield: Yes, as to the -- as to waiving -- as to waiving the -- on the number of motions, yes.
From that point on.
Justice Anthony Kennedy: All right.
So then the thing that Congress cares about most is something the Court can't review.
That is counterintuitive.
Mr. Schoenfield: Congress specified some 30 instances of discretion to the Attorney General in subchapter 2, and I believe it drew the line there and said, if we did not specify it in subchapter 2, then it is reviewable, just as courts have traditionally reviewed these matters.
Justice Ruth Bader Ginsburg: The ones that have been codified by statute, those prior to the codification will, by regulation.
Is that -- is that so?
Mr. Schoenfield: The regulation regarding motions to reopen existed before the statute.
Congress could readily have made that part of the statutory scheme if it had chosen to do so, but it did not.
If there are no further questions, I would like to reserve the rest of my time for rebuttal.
Chief Justice John G. Roberts: Thank you, Counsel.
ORAL ARGUMENT OF NICOLE A. SAHARSKY ON BEHALF OF THE RESPONDENT IN SUPPORT OF THE PETITIONER
Ms Saharsky: Mr. Chief Justice, and may it please the Court:
The statute at issue does not bar judicial review of denials of motions to reopen.
And I would like to go right to one of the questions that was asked by Justice Scalia, which is: How do you make sense out of this statute, in terms of what Congress is doing in not allowing judicial review of specifications of discretion in regulations, but -- I'm sorry, and allowing judicial review of things that are specified in regulations, but not things that are specified in the subchapter?
And I think that the answer to this question comes from the text of the statute, particularly if you compare the two things that are in 1252(a)(2)(B)(i) and (ii), that all of the things that are listed in (i) and that are covered by (ii) are subsumate decisions that are made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not.
And those are matters, at the end of the day, that the Executive, in the exercise of its immigration and foreign affairs power, has the authority to decide and that Congress did not want the Federal courts in the business of reviewing.
But what the Federal courts have often reviewed are things where discretion is committed by regulation, and these are procedural matters that relates to whether an alien had a fair shot of getting his claim heard by the agency and by the Federal courts.
Justice Anthony Kennedy: What about my question with reference to motions to -- to reopen?
That is specified under subchapter 2.
That's right there in subchapter 2: There shall be a motion to reopen.
Now, if you had no regulations on it, wouldn't you say that would be within the discretion of the Attorney General?
Ms Saharsky: --I would say that the Attorney General has the discretion to issue regulations with regard to--
Justice Anthony Kennedy: No.
No, that's not my question.
Hypothetical; not a real case.
Just a hypothetical.
Ms Saharsky: --Yes.
Justice Anthony Kennedy: Just so we can talk about the statute.
The statute says there -- subchapter 2, the one we are most interested in, specifies -- and that's one of the words -- that there shall be a motion to reopen.
Now, don't you think that's within the discretion of the Attorney General absent any regulations.
Ms Saharsky: Yes, because the statute--
Justice Anthony Kennedy: All right.
So absent a regulation, there would be jurisdiction stripping under that provision, right?
Ms Saharsky: --No.
Justice Anthony Kennedy: Why?
Ms Saharsky: Because in the case that you are positing, the discretion of the Attorney General is implicit in the statute.
It's not specified in the statute.
And here, Congress didn't say any time there is a discretionary decision, which is what implicit discretion would go to.
It says: When discretionary authority is specified.
Under this subchapter, that means that there needs to be something specific, specified, explicit, specifically noted in the text of the statute--
Justice Anthony Kennedy: All right.
But you would give me, or would you, the concession that -- or agreement that the Attorney General's discretion to waive the time limit for battered spouses is committed to him?
And that's non-judiciary review, wouldn't you think?
Ms Saharsky: --That's right.
That wouldn't be reviewable.
Congress viewed the language of discretion--
Justice Anthony Kennedy: Again, that seems odd, that the thing Congress cares about so much that it makes a specific provision can't be subject to judicial review.
Ms Saharsky: --I think that that is like the -- the various matters that Congress listed as specified as discretionary within the text of the relevant subchapter, that it decided that this was a matter of Executive grace that it did not want the Federal courts involved in.
But the Federal courts have long reviewed things like denials of motions to reopen, continuance denials, where you have a situation in which the Federal courts wanted to make sure that aliens were getting a fair chance to have their claims heard--
Justice Stephen G. Breyer: So, in fact, if -- what we have is a motion in the category of grace, except for asylum, saying, of course, the Justice Department makes a decision that can't be reviewed.
But then the department, let's imagine, has a regulation, and it says: Anyone can ask the department for rehearing in such a matter, and we'll decide as a matter of grace whether to give you one.
Now, you're saying that would be reviewed?
Ms Saharsky: --No, I'm not saying that--
Justice Stephen G. Breyer: Why wouldn't it be reviewed?
You just said it was.
You said every procedural decision is reviewed, which to me, makes no sense to begin with, because I can't imagine that Congress, while they don't want them to review the substance at all, is perfectly happy to have the courts review every detailed matter of extra time to file a brief, extra time to have an oral argument.
All those matters would be reviewable, I guess, in your view.
Ms Saharsky: --Two answers, Your Honor.
First, the standard review here is abuse of discretion.
It has long been abuse of discretion.
That doesn't mean the Federal courts are involved in second-guessing--
Justice Stephen G. Breyer: Exactly the same is true of the substantive decision.
I mean, that has nothing to do with it.
I want to know -- look, this is where I'm going.
I don't think your -- I can't find a reading of this statute that makes sense, except for one which I am trying on, and I'm sure there is a lot wrong with it, that what Congress meant to do here is to take all the procedural decisions including reopening ones, and treat them the same way that they are treating the substantive decisions.
So that in his case, he wins.
Because he gets review of the substance, he should get review of a reopening.
It's the same thing.
And in some other case, they'd lose, because if you don't get review of the substance, you shouldn't get review of the reopening.
Both are the same thing.
They are just filed at different times.
So that, to me, is the only reading of this statute that I have yet found that made sense.
But since no one argues for it, I'm sure I must be making some huge mistake.
But that's what you can tell me.
Ms Saharsky: --I don't think you are.
If I am understanding you correctly, we actually have a footnote in our opening brief where--
Justice Stephen G. Breyer: Yeah, but you are on the wrong side, if you agree with it, because -- no, you are on the right side, because he wins.
No, you're on the right side.
I take that back.
Ms Saharsky: --Well, let me try to explain.
There are a number of matters that are committed to the Agency's discretion after (i), things like adjustment of status.
And if the alien sought review, judicial review, of an adjustment of status determination, we would say that's unreviewable under -- under (i).
Let's say that he then files a motion to reopen.
Well, he is essentially trying to relitigate his adjustment of status.
Justice Stephen G. Breyer: Oh, but -- well, new things have happened.
He doesn't just want to relitigate it.
New things have happened; that's why he wants it reopened.
Ms Saharsky: What the courts of appeals have said is if what he's challenging is a discretionary determination that the Executive has already made, that that motion to reopen would not be--
Justice Stephen G. Breyer: No, he's not, but his motion to reopen is -- it's my hypothetical; I want to deal with it; I accept yours.
My hypothetical is, something new came up.
That's why he wants it reopened.
Ms Saharsky: --If something new came up--
Justice Stephen G. Breyer: Something new came up.
That's why he -- I think, isn't it true, often people want it reopened because something new came up?
Ms Saharsky: --Well, certainly that's what the statute requires them to do.
It's not our experience that every case that's filed is that way.
But in your hypothetical, when something new comes up, we understand Congress as have -- wanting that to have been judicially reviewable.
Justice Stephen G. Breyer: And I'm asking you, what possible sense could it make?
Ms Saharsky: Because Congress wants to make sense that the alien is getting -- make sure that the alien is getting a fair shot in terms of the process.
Justice Stephen G. Breyer: Look, we're -- two issues.
One is grace in respect to -- let's call it fraud, and he loses.
Something new comes up, and what does he want?
Grace in respect of fraud in light of this new fact.
Now, my question would be: What possible sense does it make to say the courts cannot review the first, but they could review the second?
Ms Saharsky: If what he's seeking is a review of an exercise of discretion, then that is not reviewable, because of the reason that the initial determination is not reviewable--
Justice Stephen G. Breyer: Oh, by the way, this reopening is done by regulation, not done by statute.
That's where I get to the problem.
You are trying to distinguish between whether it's done by regulation or done by statute.
And I'm trying to distinguish on a very different context.
Treat the motion to reopen the same as you treat the initial motion, whether it's done by regulation or whether it's done by statute.
Ms Saharsky: --Right, and what I'm suggesting is that the difference there is between a substantive determination that's a matter of grace and a procedural determination to make sure that an alien gets a fair shot, and--
Chief Justice John G. Roberts: Counsel, I -- I'm sorry, do you want to finish?
I -- I find it curious -- and maybe you can illuminate it for me -- that the Justice Department is before us, arguing that the Justice Department can't be trusted without judicial review.
And I find that doubly curious when the Justice Department won on the opposite position below.
I mean, are you suggesting that the statute is so absolutely clear that you could not stand there and say that your colleague down the hall in the Justice Department could be trusted to exercise his discretion, but in fact you are saying: I know we won on that, but we are not going to defend it because we think the Attorney General needs judicial review to help him stay in line?
Ms Saharsky: --In the vast majority of cases, of course we believe that the Board can be trusted, and that's why review is for an abuse of discretion, and it has been for many years.
This Court has said in Dada--
Chief Justice John G. Roberts: Yes, but if you take -- if you continued to argue the position you won on before the -- before the Seventh Circuit, it wouldn't be that the standard of review is -- is so deferential that it is okay.
It would be there is no review at all.
Ms Saharsky: --That's right, but we did not argue to the Seventh Circuit that there was no jurisdiction here.
In fact, it has been our position since 2004 that the text of this statute, particularly the text, the context, the history, is so clear that we could not reasonably take the alternate position in--
Chief Justice John G. Roberts: And the position of the Department of Justice was the opposite before 2004, correct?
Ms Saharsky: --There are only a handful of cases, and in those cases, several individual attorneys argued that there was no jurisdiction.
And as soon as the leadership of the Office of Immigration Litigation heard of those cases, it sat down with the text of the statute and said: We think that the text here is clear, and we don't think the jurisdiction is taken away.
And it directed all of the attorneys in the Office of Immigration and Litigation not to be making this jurisdiction-stripping argument any more.
And it has been the United States's consistent position since then, and we urged it to the Seventh Circuit below, that when you look at the text of the statute, you look at authorities specified under this subchapter.
It is Congress that specifies authority.
"Specified under this subchapter" means "in this subchapter".
"in the text of the subchapter. "
And we have to answer this question in this case by looking at the text that Congress enacted.
I acknowledge that there is not legislative history, for example, to tell us what Congress intended to do here, but we think that the answer comes from the text of the statute.
That if you are looking at the substantive determinations that Congress was most concerned about in 1996 when it enacted IIRIRA, those were the things where Executive discretion was exercised.
It did not want the Federal courts getting involved in--
Justice Anthony Kennedy: Can you give me an idea of how many motions to reopen are brought to the courts for review each year?
Ms Saharsky: --Well, there are approximately between 8 and 10,000 motions to reopen filed by the Board of -- before the Board of Immigration Appeals each year, and about between 15 and 20 percent of those are granted.
So if you look at the -- the remaining 80 to 85 percent that are denied, the general appeal rate for the courts of appeals is about 30 percent from the Board of Immigration Appeals.
So if you assume that the appeal rate is about the same for motions to reopen, you could get a number that way.
So, you know, we -- there are a substantial number of--
Justice Anthony Kennedy: So we are talking about 2 or 3,000 petitions to the court each year?
Ms Saharsky: --But the -- the point that we are making is that there are these circumstances that Congress has recognized, and this Court recognized it in Dada.
The motions to reopen serve several important purposes, and, yes, they are reviewed under a very deferential abuse-of-discretion standard.
We do not think in many cases that the Board was doing something wrong and that it needs to be overturned.
But, for example, in the -- in a similar context of continuance denials, say there was an immigration judge who did not allow an alien to seek a continuance in order to get an attorney to bring forth his case before the immigration judge.
Continuance denials, some circuits, including the Seventh Circuit, have said, are barred under this language.
We don't think that judicial review of that is barred.
We think that in the rare case--
Justice Anthony Kennedy: Well, because that would be a question of law which is accepted.
Ms Saharsky: --I -- I am not sure that it would be a question of law in that circumstance.
Chief Justice John G. Roberts: So if you think it's so bad, the Attorney General doesn't have to do it.
Why do you need a court to tell you that?
Ms Saharsky: I think that the courts have long served a very important check on the Board's authority and on the Board's exercise, and the Board has many cases before it.
In rare instances, the Federal courts--
Chief Justice John G. Roberts: You keep saying "the Board".
You keep saying "the Board".
Under the statute, it is the Attorney General, correct?
Ms Saharsky: --Yes, that's right, but the statute also -- the Attorney General -- the Board acts on behalf of the Attorney General under the statute, so the Board--
Chief Justice John G. Roberts: And if he doesn't like what they do, he has the authority to act himself.
Whenever somebody delegates authority, they retain authority to act themselves.
Ms Saharsky: --That's right.
The Attorney General does police the Board, but the courts of appeals have long done that too, particularly in the context of motions to reopen.
This Court, just a couple of years ago in Dada, recognized the important functions that motions to reopen serve and assumed that there would be judicial review of motions to reopen.
In fact, it noted that judicial review of motions to reopen, albeit under the abuse-of-discretion standards, goes back to 1916, and we just didn't see anything in 1996 that suggests that Congress wanted to change that.
And I think--
Justice Ruth Bader Ginsburg: Do we know where the motion -- where -- where did it originate?
But it -- it was -- we now know it's in the regulations.
It's in the statute.
But how did motions to reopen BIA decisions originate?
Ms Saharsky: --Before the BIA existed, so back in the 1916 context, there were immigration officers, and you could ask them to reconsider or reopen your case.
In -- I think it was 1940 or 1941, the Board came into being, and the Attorney General quickly enacted regulations that provided for either a sua sponte reopening or for the filing of a motion to reopen.
And those regulations existed in substantially the same form until 1996, when they were amended to make discretion explicit in the regulation, and the 1996 is essentially the same form that it is in today.
So there has -- there has always been an assumption that there could be such a thing as reopening.
And I -- I just want to focus on what Congress was doing in 1996, because I think it's very telling.
We know that Congress was focused on enacting bars to judicial review, and we also know that Congress was codifying for the first time an alien's right to file one motion to reopen.
But Congress just didn't make any effort to make denials of motions to reopen judicially unreviewable, and that's very telling, because there is any number of ways that Congress could have done that.
Justice Samuel Alito: I didn't do the math fast enough in my head when you were answering Justice Kennedy's question, but is he correct that the effect of accepting your argument is about 2,000 additional appeals that -- that the Department of Justice will have to brief and the courts of appeals will have to decide?
Ms Saharsky: You know, I -- I haven't done the math on that, either, and I think it requires the assumptions that I set out--
Justice Samuel Alito: On the assumptions that you made, do you know what the -- the result is?
Ms Saharsky: --I -- I don't, because we haven't calculated the number of motions throughout, and we only have total numbers in the courts of appeals.
But let me say, if you are concerned about the burden on the courts of appeals, every court but the Seventh Circuit that has considered the issue has found that the provision at issue doesn't bar judicial review.
So I don't think that--
Justice Anthony Kennedy: Have any of those courts said that they don't have a workload problem?
Ms Saharsky: --I think you would know better than I would.
We ask the judgment below to be reversed.
Justice Ruth Bader Ginsburg: May I ask you, before you sit down: Your response to the briefs here suggests that all of this is beside the point because this was the -- a second motion to reopen, and the statute allows only one?
Ms Saharsky: Well, this is comprehensively addressed in footnote 18 in our reply brief, so I will just address it briefly here, but if you have follow-up questions -- which is: If you look at the statutory language, it says that an alien may file one motion to reopen.
It doesn't limit the Attorney General's authority to allow more than one motion to reopen in certain circumstances.
And, in fact, it--
Chief Justice John G. Roberts: Thank you, Counsel.
ORAL ARGUMENT OF AMANDA C. LEITER AS AMICUS CURIAE SUPPORTING THE JUDGMENT BELOW
Ms Leiter: Mr. Chief Justice, and may it please the Court: Congress enacted IIRIRA to reduce the burden that immigration cases imposed, and continue to impose, on the Federal courts.
The plain language of the act strictly limits Federal court jurisdiction to review the discretionary decisions of immigration officials.
In fact, as this Court has explained, the theme of the legislation was to protect the Attorney General's discretion from the courts.
Section 1252(a)(2)(B)(ii) is central to that theme.
Before I discuss the language and meaning of the section, I want to make one point very clear.
The section does not preclude judicial review of legal and constitutional claims.
Both of those are expressly preserved by section 1252(a)(2)(D).
Justice Sonia Sotomayor: But that provision came after the original jurisdictional stripping, a number of years after.
So why should we look to that to inform what Congress intended at an earlier time with respect to judicial review or the scope of the review?
Ms Leiter: Well, I have -- I have two answers to that, Your Honor.
The first is, to the extent that the Court is concerned now about taking away judicial review of the really sort of important central motions to reopen, that is not a problem.
Justice Sonia Sotomayor: You are talking about us acting as policymakers.
The question is: Why should we be looking to that to define what Congress intended then, when it--
Ms Leiter: --With respect, Your Honor--
Justice Sonia Sotomayor: --stripped jurisdiction earlier or granted it?
Ms Leiter: --I believe this Court always would have understood and Congress understood that its jurisdiction strip would have had an exception for constitutional claims even as of 1996.
In 1988, this Court issued Webster v. Doe, finding that section 701(a)(2), which is quite parallel to this provision, recognizes certain claims as committed to agency discretion by law.
Congress -- excuse me, this Court in 1988 recognized that provision as requiring a constitutional exception.
And I think Congress, acting in 1996, would have recognized that the same -- that there are very similar language in section 1252(a)(2)(B)(ii) would also have a constitutional exception.
I agree with you that there would not have been a legal exception but for the enactment of 1252(a)(2)(D).
Justice Sonia Sotomayor: Well, couldn't we look at the fact that when Congress was considering whether to put back into the jurisdiction-stripping statute an exception for constitutional claims, it then knew, because the courts of appeals except for the Seventh, who just recently did it, were routinely taking jurisdiction over motions to reopen?
Don't you think that was the time for them to tell us: Hey, you guys got it wrong; we are going to make motions to reopen statutorily discretionary, so if there is any doubt about this, let's clear up what our intent is?
Ms Leiter: Well, Justice Sotomayor, certainly had Congress done that, we wouldn't be here.
However, it is not true that the courts of appeals as of that date had been uniform in their view that section 1252(a)(2)(B)(ii) did not extend to regulation.
None had extended it to motions to reopen, but in CDI Services v. Reno in 2002, the Sixth Circuit recognized section 1252(a)(2)(B)(ii) as extending to regulations.
That was in the context of a -- a petition for a Visa extension.
And Onyinkwa v. Ashcroft in 2004, the -- excuse me -- Eighth Circuit similarly recognized that.
And then in Yerkovich v. Ashcroft in the same year, the Eighth -- excuse me -- the Tenth Circuit also recognized 1252(a)(2)(B)(ii) as extended to regulation.
So the confusion plainly existed as of the date of the real idea.
And I think the burden was on Congress, frankly, in that position, actually to clarify the reverse.
If Congress wanted to make clear at that point--
Justice Sonia Sotomayor: Wait a minute, you are -- you are arguing from a real negative, because some courts had said that other statutes were covered by the jurisdictional bar.
You are arguing that they knew that no court had held that motions to reopen -- that there was no jurisdiction for motions to reopen, that somehow it should have--
Ms Leiter: --With respect, Your Honor, it is the same statute as section 1252(a)(2)(B)(ii).
And they were holding exactly what the Seventh Circuit held and what we argue here, which is that section 1252(a)(2)(B)(ii) extends to things specified as discretionary in regulations issued under the act.
They had not yet considered the issue with respect to motions to reopen, but with respect to other issues specified as discretionary in regulation, they held that the -- that the act clearly extended to those issues and stripped the courts of jurisdiction.
Justice Ruth Bader Ginsburg: But on the motion to reopen, there is -- Seventh Circuit stands alone, doesn't it?
Ms Leiter: It does, Your Honor.
Justice Ruth Bader Ginsburg: And how many circuits are on the other side?
Ms Leiter: I believe there are six.
Justice Ruth Bader Ginsburg: Was there any -- ever a decision in any of those six circuits that went the way the Seventh Circuit went on the motion to reopen?
Ms Leiter: No, Your Honor.
And that appears to be because the circuits, even the Sixth, Eighth, and Tenth, were persuaded by the existence of the consolidation provision, section 1252(b)(6), but motions to reopen should for some reason be treated differently than other things specified as discretionary in regulations.
Justice Antonin Scalia: Have they adhered -- have those other courts that you said originally said that other discretionary judgments made discretionary by regulation were non-reviewable, have they adhered to the -- to that view as to those other--
Ms Leiter: --They have not repudiated the view, but they have not adhered to it with respect to motions to reopen.
They seem to be reading the statute--
Justice Antonin Scalia: --Oh, I understand.
I am asking: Have they treated motions to reopen differently?
Ms Leiter: --Yes, they seem to treat motions to reopen differently as reviewable, and they have been persuaded to do that by the existence of section 1252(b)(6), the consolidation provision.
But as I explained earlier--
Justice Antonin Scalia: Has any of them, since switching to -- or since holding this with respect to motions to reopen, reaffirmed their view with regard to other discretionary judgments?
Ms Leiter: --Not that I have found, Your Honor, but nor have they repudiated it.
I haven't found a situation in which, after considering motions to reopen, they went back again to consider -- these extensions, for example.
Justice Anthony Kennedy: But we are talking about what is specified under subchapter 2.
I think that's an important word, in addition to "under".
And motions to reopen are specified, and it doesn't say discretion.
It just says, there shall be a motion to reopen.
Do you get any mileage from that, or you seem to rest your argument instead on the regulations?
And I think that's almost a weaker argument.
Ms Leiter: Frankly, Your Honor, I do not think that specification of discretion -- with the exception of the battered spouse's provision that you -- that you raised earlier, I do not think the specification of discretion with respect to other aspects of motions to reopen is sufficiently clear in the statute to convey discretion.
Justice Anthony Kennedy: So you -- you consider -- you -- you think it's plausible to have a regime where motions to reopen are not discretionary at all, absent regulation?
That would seem very odd to me.
Ms Leiter: No, Your Honor.
I think when Congress referred to a specification of discretion in section 1252(a)(2)(B)(ii), they intended, effectively, to provide a notice requirement.
There are many things that the Attorney General did under the Immigration Act prior to the enactment of IIRIRA, after the enactment of IIRIRA, that were understood to be discretionary.
What the statute calls for is a different category of discretionary decisions: Those things that are specified as discretionary to be unreviewable; other things that have long been understood to be discretionary remain reviewable.
Justice Stephen G. Breyer: Do you want to say anything about, apparently, this idiosyncratic thought that I have had?
This is -- is -- my thought is that both sides are arguing.
We just looked to see if it's discretion given by statute or given by regulation.
And we draw the line on reviewability there.
Now, what we're talking about is a big set of cases, including frauds and various things where there is some discretion substantively to let the person stay.
Now, on that big set of cases, the statute says if it's fraud, et cetera, we don't want review.
But if it's asylum, we want review; isn't that how it works, basically, basically?
Ms Leiter: Basically.
Justice Stephen G. Breyer: Okay.
So, I'm saying instead of looking to see whether it's a rehearing or procedural or reopening matter, period, you look to see whether it has to do with the basic category.
If it's something that Congress doesn't want courts to meddle in, that carries over to reopening, which is the same thing; it carries over to rehearing petitions, they are all about the same thing.
And if it's something that Congress did want courts to meddle in, like asylum, it carries over to reopening, and it carries over to a rehearing petitions and other such matters.
So Congress has one simple judgment: We want courts to meddle in these affairs substantively or we don't.
And our job would be to say, right, that's what you want, unless its unconstitutional, that's what we give you.
Do you see the way -- I'm just drawing the line vertically instead of horizontally.
But I agree, nobody has.
Now, to me that makes sense, but apparently to no one else.
So I would like to be talked out.
Ms Leiter: With respect, Your Honor, I think that no one includes Congress.
I think that that -- that that line--
Justice Stephen G. Breyer: I didn't leave anyone out.
No one is universal.
Ms Leiter: --That line might have made sense had Congress drawn it, but Congress--
Justice Stephen G. Breyer: How do we know they didn't?
I mean, there is such a thing in the law called -- what we think of often, they often use the word "ancillary" describing.
And when Congress passes a thing that has to do with X, you often interpret a statute to carry with it the application to ancillary matters, the thing that are bound up in X, even though they don't have a separate sentence because you can't think of everything that describes every matter ancillary to X.
That's normal in law.
Ms Leiter: --The words Congress used here, though, are those decisions specified as discretionary--
Justice Stephen G. Breyer: Yes, and we would say those decisions specified includes those decisions that are totally wrapped up in the same thing.
So that if a person tries to escape this, by simply making his main argument in a rehearing petition, he can't escape it, because it's really the same thing.
Ms Leiter: --I agree, Your Honor, that that category of things is unreviewable.
What I'm struggling with is that the regulation at issue here, regulation 1003.2, specifies in no uncertain terms that motions to reopen are discretionary, and therefore, if "specified under" extends to regulations, there is no way in my view not to extend.
Justice Stephen G. Breyer: Well, why not?
This is not a matter that is the subject of the special provision.
A reopening petition is the same kind of thing, identical to the initial petition, and so something that applies to the initial petition applies to the reopening petition because they were the same kind of animal.
If you have a -- you know -- I mean, okay.
I see the point, no point going further.
Ms Leiter: With respect, Your Honor, I think the language Congress used was clear here and extends clearly to decisions -- decisions specified as discretionary under the subchapter.
Congress could easily have said decisions specified as discretionary in the subchapter, but it did not.
And in paragraph--
Justice Ruth Bader Ginsburg: Is there any rhyme or reason why from universe of things that could be reviewed in court, Congress put some of the them in the statute and left others out?
Ms Leiter: --Well, Justice Ginsburg, the description of something as discretionary has consequences for the Attorney General, for the administrative process.
It has only the ancillary consequence of stripping the courts of jurisdiction.
So court -- excuse me, the Attorney General needs to determine a rule of evidence for motions before it, needs to determine rules of procedure, needs to determine a rule of decision, and so there are -- there are categories of matters where I could imagine Congress saying to itself, the rule of decision here is really not something with which we need to concern ourselves.
It is up to the Attorney General to decide whether this is a discretionary decision or whether this is instead a decision that he or she would like to -- to constrain in some way by having certain specific rules of decision to go by--
Justice Ruth Bader Ginsburg: Well, it's -- the question isn't whether the Attorney General or the BIA exercises discretion.
In all of these the Attorney General exercises discretion.
The question is immunity from court review, and ordinarily that's done by statute.
And I do not know of another instance, perhaps you do, where the decision was a matter that the agency rules on will be exempt from judicial review if made by the agency itself -- the very agency that makes the decision, rather than by the legislature.
Ms Leiter: --I will answer your question first.
I can imagine Congress believing that there are categories of decisions where even the rules of decision are best left to the agency to determine.
And in that category Congress leaves it open to the agency to decide whether to specify those matters as discretionary or instead to specify more constraining rules of decision.
With respect to your question about example--
Justice Ruth Bader Ginsburg: And I'm not questioning the discretion.
The Attorney General has been given discretion to rule on the matter, but the question is, does that mean that the exercise of discretion will be immune from judicial review?
Congress might well say, agency, you decide what is in your discretion, but not say, and agency, we delegate to you, too, the matter whether the court will -- will review your exercise of discretion.
Ms Leiter: --Right.
Two things, Your Honor.
First, the jurisdictional consequence of the discretionary specification here attached after the Attorney General applied the label.
So here this is not a situation in which the Attorney General was making a determination as to what things should be reviewable.
The Attorney General was making a -- a decision as to what rule of decision to apply in motions to reopen, and Congress later attached the jurisdictional significance.
Justice Ruth Bader Ginsburg: If -- if your interpretation of "under" is right.
Ms Leiter: Well, Congress acted later and may, if our interpretation is correct, have attached the jurisdictional significance at that point, yes.
With respect to your question about other examples of situations in which an agency is left to make a determination that has jurisdictional consequences, I have a few examples.
The first is the Communications Act of 1934.
This Court recognized in Global Crossing that the agency there could determine that a -- that conduct under the act was unreasonable.
That is an administrative determination under one section of the act.
It has the consequence under another section of the act of creating a cause of action for individuals to recover in damages.
The second example is actually section 701(a)(2) of the Administrative Procedure Act which refers to categories of decisions that are committed to agency discretion by law.
Courts have understood that that is not the broad subset of discretionary decisions but instead that subcategory of discretionary decision for which there is no law to apply, and many courts recognize that the agencies may create the law to apply in those circumstances.
So an agency may enact a regulation that binds the agency's own discretion and renders the issue reviewable where it would not otherwise have been.
Justice Anthony Kennedy: Do you think absent the special provisions of the -- of the immigration act that we are considering if we were just under the APA, that a motion to reopen would be committed by law to agency discretion under 702?
Because it seems to me that, you know there are sources we could look to to see whether or not it's rationally exercised.
Ms Leiter: --I do not, Your Honor.
I believe there is law to apply in this circumstance.
Particularly after enactment of IIRIRA, Congress now has provided guidelines for when some motions to reopen should be granted, the timeliness of motions to reopen, et cetera.
So I do not think this is the broad category of -- or sorry, the narrow category of things that are committed to agency discretion by law.
I was using the example solely to show there are other circumstances in which an agency action has the consequence of restoring--
Justice Anthony Kennedy: Well, I actually think it helps you because -- there is -- there is something to review, the agency does have discretion.
But this statute strips it, because it provides for motions to reopen, specifically.
But of course--
Ms Leiter: --Yes--
Justice Anthony Kennedy: --you don't take that--
Justice Antonin Scalia: Are you going to talk about "under"?
Ms Leiter: --I would love to talk about under, Your Honor.
Justice Antonin Scalia: Yeah.
Ms Leiter: And if I may, I would like to start on pages 6a and 7a.
I have an illustration here -- excuse me, of the -- of the government's opening brief.
I have an illustration here of the fact that Congress knows what it is doing when it chooses prepositions.
If you look at the section that immediately precedes 1252(a)(2)(B)(11) -- that is section 1252(a)(2)(A).
Justice Antonin Scalia: Where is this?
Justice Anthony Kennedy: --What page?
Ms Leiter: --I'm sorry.
Pages 6a and 7a of the government's opening brief.
Justice Antonin Scalia: --the government's--
Ms Leiter: --And pages 6a and 7a in the appendix.
This is -- this is provision 1252(a)(2)(A), and borrowing the term Romanette, Romanette (i), (ii) and (iv), refer clearly to things provided in subsection (e) in the statute whereas Romanette (iii) refers to the application of such section to individual aliens including the determination made under section 1225(b)(1)(B) of this title.
That is a determination by immigration officials at the border as to whether an individual who is otherwise inadmissible may have grounds to be detained and go through asylum proceedings.
Clearly there, where Congress recognized that there was an administrative determination to be made, it used the preposition "under" to reach through the statute to the administration determination.
I also have three examples, Your Honor, of situations in chapter 8 in which Congress actually uses the phrase "specified under", the same phrase at issue here, to refer again through the statute to administrative determinations.
These are not unfortunately in the briefs.
8 U.S.C. 1227 -- excuse me.
Let me start with 8 U.S.C. 1375a(a)(4) and (a)(6).
This is a provision that calls for the preparation of a pamphlet on the legal rights of immigrant victims of domestic violence.
Paragraph 1375a(a)(6) calls for the pamphlet to be distributed and made available, quote
"in the language as specified under paragraph (4). "
Turning to paragraph (4) then, it clearly anticipates an administrative determination, because it says the Secretary of Homeland Security in consultation with the Attorney General and the State Department shall determine at least 14 languages into which the pamphlet is translated.
So that's an example of Congress using 2, but it is a situation in which the statutory language to which "specified under" refers clearly anticipates some exercise of administrative authority.
Here, the exercise of administrative authority is to specification of languages.
In our example, it is the specification of procedures for motions to reopen.
Justice John Paul Stevens: May I ask this question before you -- this is an appropriate time.
What is your response to their argument they raise in the reply brief that this was specified under subchapter 1, rather than subchapter 2?
Ms Leiter: Your Honor, subchapter 1 includes the language that grants authority broadly to the Attorney General to issue regulations implementing the chapter, and the language implemented by the motions to reopen regulations exists in subchapter 2.
The motion to reopen regulations very clearly implements Section 1229(a), which is in subchapter 2, and a question asked earlier was where one would look to determine whether Regulation 1003.2 is a valid regulation, a reasonable interpretation of the statute, and for that, I believe one would have to look at the content of Section 1229(a), which is in subchapter 2, so although--
Justice Antonin Scalia: --Except that the text refers not just to the -- the discretion, it refers -- it says the authority for which is specified under this subchapter and the authority to issue that -- the authority to issue the regulation is under subchapter 1.
Ms Leiter: --Yes, Justice Scalia.
I am certainly not--
Justice Antonin Scalia: No.
You would have to say, no, Justice Scalia, if you want to win this.
Ms Leiter: --Yes.
The phrase includes the word the authority, Justice Scalia, but I don't think it can bear the weight that Petitioner and the government put on it.
I believe the authority there references the authority that is clearly granted in Section 1103 to implement the entire chapter.
But what the section does is to indicate where the specification of discretion must be located, and in this case, it must be located in either the statute or the regulations issued under it, and to see that, I think the easiest illustration is to suppose that the statute read: No court shall have jurisdiction to review any decision specified as discretionary -- excuse me -- decision, the authority for which is specified as discretionary in the subchapter or in regulations issued thereunder.
If Congress had used belts and suspenders in that way and made itself doubly clear, there would be no question here that the word "authority" was somehow superfluous or misplaced.
Justice Stephen G. Breyer: Do you have any reason why Congress would have taken great trouble to make certain that courts can review asylum decisions, that Congress would not have wanted a court to review a reopening of an asylum matter, which can be done, after all, only if something new comes up that justifies asylum?
For example, a new government comes and takes over the country, and now, they are going to murder the person, and that couldn't be considered the first time because the old government was there, and they were just going to torture him, all right?
So -- so there's something new here.
Now, why would any human being say, we want to get courts involved in the first decision, but we want to keep them out of the second decision?
Ms Leiter: The -- the best answer I have, Justice Breyer, is that Congress wanted to cut off review at some point, and it was a question of numbers of bites at the apple.
I understand your point, that -- that--
Justice Stephen G. Breyer: Reopening is not a bite at the apple.
Reopening is a new thing; at least, by and large, it is supposed to be -- a change.
Ms Leiter: --And that may have been part of Congress's concern, that, of course, by and large, it's supposed to be, but it may not always be used in that way, and, at some point, Congress wanted to draw the line, and I note here that Congress did not -- I mean what Congress did here was to set up a regime under which things that are specified as discretionary are unreviewable.
But there is some room here for the Attorney General to remove the specification of discretion if that system is unlawful--
Justice Antonin Scalia: And, of course, if your interpretation produces the anomaly that Justice Breyer just described, the government's interpretation produces the opposite anomaly.
Ms Leiter: --Certainly, Your Honor.
Justice Stephen G. Breyer: Exactly, and that's why I ended up with this unusual--
Chief Justice John G. Roberts: And I suppose it's a large question, if you are talking about, presumably, the unusual cases in which the motion to reopen is -- is justified, that you are talking about 2,000 or 3,000 cases, and the question is whether or not those are -- should be reviewed in the executive branch or should be reviewed in the judicial branch.
Ms Leiter: Well, the math that we were given earlier, I believe, does come out to about 2,000 appeals per year, but I remind the Court that Section 1252(a)(2)(D) preserves those that raise questions of law or constitutional questions for review.
So this is a far narrower -- I assume, although I do not have the numbers, but I assume a far narrower subset of those decisions that would be rendered unreviewable here, only those for which a discretionary factual determination has been made by the agency.
Chief Justice John G. Roberts: So we are looking for needles in -- in a haystack, right?
Ms Leiter: I don't have the numbers, Your Honor.
I don't know what percent.
I am not sure whether it's a fraction of the haystack or a needle within it, but -- but it is certainly a subset of the -- of the category of cases.
Justice Ruth Bader Ginsburg: Do you have other examples where the under is commonly used statute and regulations thereunder, but in the appendix that you have given us, it says, "under regulations".
Under is always coupled with regulations, and you want us to transpose that to a statute that conspicuously did not say, "regulations".
Ms Leiter: Justice Ginsburg, we included the appendix to illustrate how Congress uses the preposition under, when it is talking about regulations, so we specifically looked for examples where Congress was talking already about regulations, and the preposition that accompanies that is always under.
I do have--
Justice Antonin Scalia: You said, earlier, that you had three examples--
Ms Leiter: --I have--
Justice Antonin Scalia: --that were not in your brief.
You better spit them out, or we won't know about them.
What are the other two?
Ms Leiter: --Thank you, Justice Scalia.
The other two are Section 1227(a)(1)(H), which refers to 1182(a)(5)(A), 1227(a)(1)(H), both in Chapter 8, refers to grounds of inadmissibility -- excuse me -- specified under paragraph (5)(A) of Section 1182(a).
Turning to paragraph (5)(A) of Section 1182(a), that calls for the Labor Department to determine whether the United States needs immigrant laborers in a particular category.
So, again, it's a use of the phrase "specified under" to refer to statutory language, but through the statutory language to what is clearly an anticipated exercise of administrative discretion.
Justice Antonin Scalia: 1227(a)(1)(H).
What is the third one?
And then I am going to ask you what the first one was because I forgot it.
Ms Leiter: Okay.
The third one is Section -- again, Chapter 8, Section 1537(b)(1) and (b)(2).
(B)(1) says that, after judicial review affirming a removal order, the Attorney General
"shall remove the alien to a country 2. "
And then, in paragraph 2, the statute says that the alien may choose the country, but that the Attorney General has the authority to review the alien's choice of country, and if the alien refuses to choose a country, the Attorney General has the authority to specify the country.
Justice Antonin Scalia: Yes.
What was the first one?
Just -- just give me the -- the cite for the first one.
I didn't write it down.
I should have.
Ms Leiter: --1375(a) -- (a)(4) and (a)(6).
Justice Antonin Scalia: Thank you.
Ms Leiter: If there are no further questions, Your Honor?
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Schoenfield, you have three minutes remaining.
REBUTTAL ARGUMENT OF RICK M. SCHOENFIELD ON BEHALF OF THE PETITIONER
Mr. Schoenfield: Section 1252(b)(6) mandates that review of the underlying decision should be consolidated with review of a motion to reopen.
I think that tells us several things.
The first and foremost of which is Congress intended there to be review of motions to reopen -- at least some motions to reopen.
To try to go back to Justice Breyer's questions, I think one can extrapolate from the consolidation provision that, if it is impossible to consolidate because there is no review of the underlying decision, you do not get to have a review of those motions to reopen.
And that is referenced, I believe, in the government's brief, at footnote 15 -- excuse me, with some cases cited, where courts have so held.
We did not focus on that because that is not Mr. Kucana's issue.
As the court has alluded to, Mr. Kucana's issue is the nature of asylum based upon changed country conditions, and those situations are where it may be a matter of life and death, certainly, also a matter of -- of liberty, to be able to bring forward new evidence, which did not exist before, about changed country conditions, and it is not two bites at the apple.
It's the first bite at current conditions, which is essential.
With regard to the case of Webster v. Doe, that my colleague cited orally, that was an extremely unusual case in which the Court essentially said that it could not -- it did not have any criteria to evaluate the discretion used by the director of the CIA.
That is certainly not the situation we have here, where we are dealing with motions to reopen, which are analogous to Rule 60 (b) and which are routinely reviewed on abuse of discretion standard.
Additionally, let me note that, if you were to determine that the statutory language "specified under" is ambiguous that the applicable canons both point us to favoring judicial review, favoring judicial -- favoring judicial review and not essentially allowing the executive to pass a regulation which insulates itself from judicial review.
That would be both the clear statements requirement, as well as the principle laid down by this Court that, in an ambiguous situation dealing with deportation, ambiguities are to be construed in favor of the alien.
If there are no further questions?
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Schoenfield: Thank you.
Chief Justice John G. Roberts: Ms. Leiter, you briefed and argued this case in support of the judgment below, at the invitation of the Court, and have ably discharged that responsibility, for which we are grateful.
The case is submitted.
Chief Justice John G. Roberts Jr.: Justice Ginsburg has our opinion this morning in case 08-911, Kucana versus Holder.
Justice Ruth Bader Ginsburg: The motion to reopen removal proceedings formally called deportation proceedings is an important safeguard to ensure the juxtaposition of immigration matters.
Federal courts have reviewed administrative decisions denying reopening of immigration proceedings since at least 1916.
This case concerns access to that check on executive determinations.
The petitioner, a citizen of Albania, moved to reopen his removal proceedings alleging new evidence in support of his plea for asylum.
An immigration judge denied the motion and the Board of Immigration Appeals sustained that ruling.
Petitioner sought judicial review in the US Court of Appeals for the Seventh Circuit.
The court dismissed his petition holding that it lacked jurisdiction to review the board's determination.
For that ruling the court relied on a statute barring judicial review of certain administrative actions, those specified as discretionary under the relevant part of the Immigration and Nationality Act.
Although nothing in that act specifies the board's discretion to rule on reopening motions, a regulation published by the Attorney General does so.
The Seventh Circuit held that the Attorney General's regulation suffices to insulate the board's decision from court oversight.
We reverse the Court of Appeals judgment and hold that Federal courts retain jurisdiction to review reopening denials in immigration matters.
That is so we explain because Congress reserved to itself and did not vest in the Attorney General authority to bar judicial review.
Examination of the relevant statute’s text and context leads us to this determination.
We note that other similar limitations of judicial review placed in the statute just before and just after the provision in question depends solely on statutory provisions not on any administrative regulation to define the scope of the limitation.
Our reading of the controlling provision keeps it in harmony with its surrounding provisions.
We also take into account the character of many of the immigration decisions Congress has expressly shielded from judicial review.
They are in the main substantive decisions about an alien’s plea to remain in the USA, decisions made by the executive as a matter of grace.
Decisions on reopening motions in contrast are not matters of grace, they are adjunct rulings concerned primarily with procedural fairness.
Finally two basic considerations strongly support our determination.
First, separation of powers concerns appreciation that Federal Court jurisdiction is controlled by Congress not by the executive and second the familiar presumption favoring judicial review of administrative actions.
Justice Alito has filed an opinion concurring in the judgment.