Discretion. The better part of valor. A sentiment that the foolish lack. The only thing more dangerous than a friend without discretion is the inability to police it. Like the jewel of gold in the swine’s snout, so too is the Immigration & Nationality Act without judicial review of the Attorney General’s discretionary decisions.

We like Kucana v. Holder, __ U.S. __, 08-911, the Supreme Court’s decision from January 20, 2010. It doesn’t sweep broadly, it doesn’t reach out and decide unnecessary issues. But it also didn’t avoid the issues presented by adopting Justice Alito’s overly narrow reading of the statute (in his concurrence). Its effect will be modest but positive. Courts will now again review denials of reopening – and continuances and similar rules – for abuse of discretion. Which is how it should be.

Our belief that the Supreme Court would get it right was shaken after oral arugment. But reading the justices is like reading tea leaves; an art form not best suited for the suit-n-tie crowd.

In particulars, the question before the Supreme Court was:

Whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals.

Motions to reopen are specified as discretionary in the regulations, but not the statute. The Supreme Court had to decide whether it was sufficient to trigger 1252(a)(2)(B)(ii) for something to be specified as discretionary under the regulations. The answer, in short, was no. Justice Ginsburg wrote for a unanimous court, with Justice Alito concurring in the judgment, reversing the CA7′s decision to the contrary.

The analysis was impressively textual (not a surprise from Justice Ginsburg). In isolation, the Court thought the term, specified “under,” to be ambiguous. Relying on fairly standard canons of statutory construction, the Court looked to other indicia. It looked to the placement of (B)(ii), noting that 1252(a)(2)(A) and 1252(a)(2)(C) are both entirely focused on other statutory provisions. It compared (B)(ii) with (B)(i), which bars review over specified types of relief in the statute. It also compared the types of relief for which (B)(i) bars jurisdiction, noting that they were “substantive decisions” which decide whether someone can stay or must go.

Decisions on reopening motions made discretionary by regulation, in contrast, are adjunct rulings: The motion to reopen is a procedural device serving to ensure “that aliens [a]re getting a fair chance to have their claims heard.” Tr. of Oral Arg. 17. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing

The Court also looked to the the history of the statute. In 1996, at the same time Congress adopted IIRIRA’s jurisdiction-stripping provisions (including (a)(2)(B)(ii)), Congress it codified most of the regulations pertaining to reopening, but left the discretionary language in the regulations out of the statute. Nor did Congress change that in Real ID, though a ton of CtApps had interpreted (B)(ii) as not barring jurisdiction over reopening.

And then of course, there’s a general presumption in favor of reviewability of administrative decisions.

Thus, the Kucana decision put to rest a question that had been percolating for some time in the Courts of Appeal.

Other issues remain (and we are grateful that the Court did not reach out to decide these questions). The Court flagged two issues which it did not decide: (a) whether the bars to review over discretionary relief (e.g., adjustment of status) would thus bar review over reopening decisions in that context, and (b) whether sua sponte reopening would be beyond federal court jurisdiction, notwithstanding today’s decision. Unflagged but no less important were several other issues not addressed in Kucana. The Court didn’t take a position on the holdings of many Courts of Appeals (endorsed by Zadvydas) that 1252(a)(2)(B) only bars review over discretionary decisions, as opposed to findings of law or fact. It didn’t address what precise language would be required to trigger 1252(a)(2)(B)(ii); i.e., does the statute need to use the actual word “discretion”; is it sufficient to use permissive language such as “may”; or must the courts examine the entire statutory context to determine whether something is discretionary? The Court didn’t say. Finally, it might be that Kucana’s claims could have been characterized as questions of law under 1252(a)(2)(D), at least under the CA9′s rule in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007); but the Supreme Court said nothing of that.

Justice Alito concurred separately to note that the regulations had promulgated under the authority of 8 USC 1103(a), which is in subchapter 1 of the INA. Because 1252(a)(2)(B)(ii) only applies to items specified as discretionary in subchapter 2 of Title 8; thus, if the reopening regs were specified under 1103(a), there would be no need to reach the questions decided by the Court. He would have decided the case on those narrower grounds.

–guest blogging by Chuck Roth. Chuck is the Director of Litigation at the National Immigrant Justice Center, www.immigrantjustice.org, and is the author of a blog of federal court decision summaries at www.immigrantjustice.org/litigationupdate

Things have been busy in the federal courts of appeals and the Board of Immigration Appeals. Plus, the Supreme Court weighed in on jurisdictional issues. In the last week, several major decisions have been announced — new posts soon!

In Matter of Neto, 25 I&N Dec 169, the Board vacated an earlier decision, Matter of Perez-Vargas, 23 I&N Dec. 829 (2006), and held that Immigration Judges and the Board have jurisdiction to determine whether a job is “portable” under INA 204(j). There are good reasons that the Board reversed Matter of Perez-Vargas, including the fact that every court of appeals to consider the question had rejected their reasoning after finding that the statute unambiguously made the 204(j) determination part of the adjustment adjudication and not that of the visa petition. The Board had scheduled oral argument on the case, but after DHS weighed in & agreed that Matter of Perez-Vargas was wrongly decided, oral argument was canceled.

We aren’t sure what to make of Neto just yet. Sure, it reached the right result thanks to some excellent advocacy work by the petitioner’s counsel and a strongly written amicus brief by AIC and AILA (drafted by Mary Kenney & Trina Realmuto). But there are still some analytical oddities in the reasoning of the majority opinion. Amici AIC and AILA argued that the statute was plain and, therefore, the case is resolved at Chevron step-one. That’s not so, Board Member Filppu, writing for the majority explained. Eschewing a statutory interpretation analysis, he explained that the statute isn’t so plainly written. Over four pages of decision, he offers a mode of analysis that Harry Truman might find meaningful: no one else will make the 204(j) determination and the Circuit Courts won’t let us off the hook either, therefore, someone’s gotta do it and so we will because the buck stops here. What this has to do with what the statutory language means is a point lost on us.

The American Immigration Lawyers Association participates as amicus curiae in matters of
interest to the Association that advance the interest of the Association, its members, and
generally promotes the orderly and beneficial development of the law. AILA generally drafts
its own briefs on matters of importance to it and actively seeks out cases in which the
Association has an interest. From time to time, AILA will also sign on to briefs written by
others. AILA members are encouraged to seek out Amicus assistance on important cases
early in the course of litigation. The complete guidelines are here.

How To Obtain AILA Amicus Assistance

If you wish to obtain AILA Amicus assistance in a particular case or wish to raise an issue
that merits AILA’s consideration because it could impact the Association’s interest, you may
contact any member of the AILA Amicus Committee. When making a request, it is
important to explain how the case impacts AILA’s interest. There is an on-line form for
submitting requests for assistance which can be accessed here:

http://spreadsheets.google.com/embeddedform?key=pw6-Ghz9CaSUFcVWGAaksIw

The Board has scheduled oral argument on Matter of T-, a case in which AILA appeared as an amicus along with the American Immigration Council and the Northwest Immigrant Rights Project. The BIA queried the parties on:

(a) Whether the Board, invoking the Supreme Court’s decision in Brand X, may decline to follow the Ninth Circuit’s “disfavored group” analysis?
(b) What is the impact the Ninth Circuit’s decisions in Sael v. Ashcroft, 386 F.3d 922 (CA9 2004) and Wakkary v. Holder, 558 F.3d 1049 (CA9 2009) on the disfavored group analysis?

The petitioner’s is represented by Drew Sieminski of the law offices of Chung Phang. Individuals with cases before the Board raising a similar issues might wish to contact AILA amicus.