WLF Legal Opinion Letter
High Court's Kucana Ruling Will Further Burden Immigration System
By Benjamin Haskins
March 26, 2010 (Vol. 19 †No. 7)
†Each year the immigration system becomes more strained. †In 2008, 339,071 disputes were resolved by the Immigration Courts.1† Of this number about nine percent were appealed and decided by the Board of Immigration Appeals (BIA).2† And while current statistics are difficult to come by, as of 2006, the Federal Courts of Appeal were receiving nearly 1,000 appeals per month from BIA decisions.3
Even though Congress has long sensed the need to stem the tide of immigration appeals, aliens who have been ordered to depart the country by an Immigration Judge (IJ) are guaranteed review before the BIA and, following the Supreme Court's ruling in Kucana v. Holder, to the federal circuits. †The concern, however, is that the current process is extremely lengthy and a final determination of an alien's status ever fleeting. †The law currently allows illegal immigrants to start that process over again by filing for asylum as a last ditch effort to avoid deportation, even if they have already exhausted their statutory right to reopen their case. †This gives illegal immigrants multiple opportunities for rehearing that are unnecessarily burdensome on the country's legal system.
Agron Kucana's story epitomizes the abuse the current system endures. †Having entered the United States in July 1995 on a 90-day immigrant business visitor visa, Kucana remained in the country for almost 15 years. †He filed for asylum in 1996 but overslept the day of his hearing and the IJ ordered his removal in absentia. †His motion to reopen his removal proceedings was denied by the IJ and BIA, and he did not seek further judicial review. †Four years later, Kucana filed a second motion to reopen his final order of removal which was similarly denied.
Kucana sought review before the U.S. Court of Appeals for the Seventh Circuit, but the court in a split decision dismissed for lack of jurisdiction. Regulations currently provide that the BIA has discretion to grant or deny motions to reopen. Further, sec. 1252(a)(B)(ii) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 bars judicial review of actions "the authority for which is specified under [the IIRIRA] to be in the discretion of the Attorney General or the Secretary of Homeland Security." †The Seventh Circuit, following its precedent, held that sec. 1252(a)(B)(ii) also barred review of actions made discretionary by "regulations that are based on and implement[ing] the Immigration and Nationality Act."4† Since Kucana did not raise any constitutional issues or questions of law, his appeal was dismissed for lack of jurisdiction.
The Supreme Court unanimously reversed. It held that the IIRIRA only barred judicial review of actions specified as discretionary by statute, and not by implementing regulations.5† The Court acknowledged the long history of judicial review of "administrative decisions denying motions to reopen removal proceedings [that] dates back to at least 1916."6† Therefore, the Court viewed the issue as whether Congress "removed the authority long exercised by federal courts to review" such denials.7† Based on "the presumption favoring judicial review of administrative action,"8 and the Court's interpretation of the statute, Congress simply did not intend to keep actions specified as discretionary by regulation from review. †Had it so intended, Congress would have included the regulation in the statutory language. By codifying some past regulation in the IIRIRA and excluding others, the Court argues, Congress clearly intended to not preclude the BIA's denial of a motion to reopen from judicial review.
However, if the maxim expressio unius est exclusio alterius is to apply, Kucana reveals a glaring conflict between the IIRIRA and current regulations. †IIRIRA sec. 1229a(c)(7) gives an alien the right to file one motion to reopen, and the only exception to this "limitation" is for battered spouses, children, and parents. †The section specifically addresses asylum, but only extends the ninety-day filing deadline and not the numerical limitation. †Cleary Congress intended this provision to contract the number of appeals by limiting each alien to one motion to reopen. †This stands at odds with the regulation under which Kucana and other immigrants making a last ditch effort to avoid deportation seek relief.9† Thus, the BIA is not statutorily authorized to grant Kucana's motion unless it decides to reopen his case sua sponte, an action generally recognized as not subject to judicial review. †Kucana did not reach this issue, but it is ripe for resolution.
Immigrants adjudged illegal should not be able to conduct multiple assaults upon their removal order. †And while the Court's statutory analysis of the IIRIRA is certainly tenable, its justifications for judicial review do not fully extend to multiple motions to reopen. Judicial review generally "concerns only the question whether the alien's claims have been accorded a reasonable hearing,"10 but, at a point, aliens like Kucana are being accorded so much procedure that it is only amounting to delay. †Aliens may always seek review based on "constitutional claims or questions of law," but allowing abuse-of-discretion challenges to cases long since closed cuts against judicial efficiency and the finality of judgments long prized in our judicial system. †Congress has intentionally provided considerable opportunities for immigrants to receive a fair hearing and review, but Kucana shows that further legislative action may be necessary to prevent fair procedure from also being a means of abuse.
Benjamin Haskins is a recent graduate of the George Mason School of Law and a Legal Fellow with Washington Legal Foundation.
1. FY 2008 Statistical Yearbook at B2, U.S. Dept. of Justice: Executive Office of Immigration Review, available at http://www.justice.gov/eoir/statspub/fy08syb.pdf.
2. In 2008, the BIA completed 38,369 matters. Id. at S1.
3. BIA Streamlining Fact Sheet p. 2, U.S. Dept. of Justice, Executive Office for Immigration Review (revised March 9, 2006), available at http://www.justice.gov/eoir/press/06/BIAStreamliningFactSheet030906.pdf.
4. Kucana v. Mukasey, 533 F.3d 534, 536 (7th Cir. 2008) (citing Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007)).
5. Kucana v. Holder, _ U.S. _, 130 S. Ct. 827, 831 (2010).
6. Id. at 834.
8. Id. at 839.
9. See 8 C.F.R. ß 1003.23(b)(4)(i).
10. Kucana, 130 S. Ct. at 837.