Kucana v. Holder: Judicial Review of Reopening Denials

Kucana v. Holder, 558 U.S. 233, 237–39, 248–53 (2010), held that the jurisdictional bar for decisions specified by statute to be in the Attorney General's discretion did not bar judicial review of a motion-to-reopen denial whose discretionary character came from regulation. Reviewability and success on the motion remain separate questions.

The motion to reopen and dismissed petition

Kucana sought to reopen removal proceedings based on new evidence supporting his asylum claim. The Board denied the motion. The Seventh Circuit dismissed his petition for review, reasoning that the decision was discretionary and therefore outside its jurisdiction. The Supreme Court took up the antecedent issue: Whether Congress had actually withdrawn judicial review of this category of Board decision. Id. at 237–40.

Motions to reopen are an established procedural mechanism, but filing one does not guarantee a new hearing. The governing regulation described the Board's authority in discretionary terms. The Court asked whether that regulatory description could supply the statutory condition needed to trigger the review bar. Id. at 242–47.

Congress-specified versus agency-specified discretion

Section 1252(a)(2)(B)(ii) bars review of certain decisions whose authority is “specified under” the relevant statutory subchapter to be in the Attorney General's discretion. The Court read “specified” as a congressional specification, not one an agency could create by regulation. Reading the bar to cover every regulatory grant of discretion would let the executive decide the scope of judicial review for itself. The text and background presumption favoring review supported the narrower construction. Id. at 246–52.

The Court reversed the jurisdictional dismissal and remanded. It did not decide that Kucana had new material evidence, that his motion was timely, or that the Board abused its discretion. Those merits and procedural questions remained open. Id. at 252–53.

The boundary of the rule

The holding concerns this statutory review bar and this regulation-based category of discretion. Other jurisdictional restrictions, exhaustion rules, filing deadlines, or standards of review may still matter. A reopening analysis should identify the challenged agency action, the source of its discretion, the applicable review provision, the motion's procedural posture, and the evidentiary basis for reopening before citing Kucana for judicial access.

Review-record checklist

• Preserve the final order, motion, supporting evidence, Board decision, and petition deadline.
• Locate the provision making the decision discretionary: Statute or regulation.
• Separate jurisdiction to review from the likelihood of winning under the governing standard.