Kucana v. Holder
The Supreme Court ruled that federal courts can still review the denial of a motion to reopen an immigration case, rejecting the government's argument that a regulation alone could strip courts of that power.
The decision means that only Congress, not the Attorney General through regulation, can cut off judicial review of an immigration decision, preserving a long-standing check on how the government handles deportation cases.
“Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.”
The Court rejects the idea that a regulation alone could let the Executive shield its own decisions from judicial review.
How it got here: The Board of Immigration Appeals denied Kucana's motion to reopen; the Seventh Circuit ruled it lacked jurisdiction to review that denial, creating a circuit split the Supreme Court took up.
The Case in Depth
What happened
Agron Kucana, an Albanian citizen, missed his deportation hearing and was ordered removed. He later asked immigration officials to reopen his case, first because he had overslept and later because conditions in Albania had worsened, undermining his asylum claim. Immigration officials denied his second request, and he wanted a federal court to review that denial.
The question before the Court
Can immigration officials block courts from reviewing a denied motion to reopen a deportation case just by writing a regulation that makes the decision "discretionary"?
The Court's answer
No — an agency regulation alone cannot cut off a court's power to review a denied motion to reopen. The Court read the jurisdiction-stripping statute narrowly, holding it applies only when Congress itself, in the statute, specifies that a decision is left to the Attorney General's discretion. Because no statute made the decision on Kucana's motion to reopen discretionary — only a regulation did — the courts retained authority to review it, as they always had.
This outcome rests on reading the disputed provision alongside neighboring statutory bars that all depend on express legislative text, on the more modest, procedural nature of a motion to reopen compared to the substantive relief Congress did shield from review, and on a long-standing presumption that courts can review executive action unless Congress clearly says otherwise.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Immigrants like Agron Kucana who ask to reopen their deportation cases based on new evidence will continue to have access to federal courts if their request is denied. The ruling also limits how far federal agencies generally can go in shielding their own decisions from court oversight simply by labeling them "discretionary" in a regulation.
What changes now
The case goes back to the Seventh Circuit, which must now actually review the merits of Kucana's motion to reopen using the traditional deferential standard, since the Supreme Court has confirmed it has jurisdiction to do so. The ruling is a final decision on the legal question of jurisdiction, though Kucana's individual case still needs to be resolved on remand.
What this does not decide
The Court did not decide whether courts could review a decision not to reopen a case on the Board's own initiative (sua sponte), nor whether review would be barred if a court lacked jurisdiction over the alien's underlying claim. It also left open whether some other regulation, in a different context, might validly be tied to a statutory discretion grant.
Concurrences and dissents
Concurrence — Justice Alito
Justice Alito agreed courts could review the denial but would have decided the case on narrower grounds. He argued the regulation at issue was not actually grounded in the statutory subchapter that triggers the jurisdictional bar, so the broader question of whether regulations can ever trigger the bar did not need to be resolved here.
How the Court got there
The legal reasoning, step by step
- The Court examined the statute that strips courts of jurisdiction over immigration decisions the law says are within the Attorney General's discretion, and asked whether that bar also covers decisions made discretionary only by an agency regulation rather than by Congress itself.
- Reading the disputed catchall provision alongside its neighboring statutory bars, all of which depend on express statutory language rather than any regulation, the Court concluded that the catchall should likewise be limited to discretion granted by Congress in the statute.
- The Court noted that the decisions Congress did expressly shield from review were substantive grants of relief (like waivers of inadmissibility or cancellation of removal), while a motion to reopen is only a procedural safeguard ensuring a fair hearing, suggesting Congress did not intend to treat it the same way.
- The Court observed that Congress knew how to extend a jurisdictional bar to cover both statutes and regulations when it wanted to, since it used that broader language in other provisions passed at the same time, but did not do so here.
- Applying the longstanding presumption that courts should be able to review executive action unless Congress clearly says otherwise, the Court found no clear statement stripping review of motions to reopen made discretionary only by regulation.
- The Court concluded that letting a regulation alone eliminate judicial review would let the Executive, rather than Congress, control the courts' jurisdiction, which the constitutional separation of powers does not allow.