United States Supreme Court Protects Aliens' Right to Judicial Review of Motions to Re-open

United States Supreme Court Protects Aliens’ Right to Judicial Review of Motions to Re-open.

The Supreme Court of the United States recently handed down a well reasoned and unanimous opinion defending an Alien’s right to have a motion to re-open heard by the Federal Circuit Courts. The practical effect of this decision is to re-affirm what has become the general operating procedure for immigration practitioners in the federal court system. In fact, only two federal circuits felt compelled to comment on the issue previously, and in both instances upheld the right of a motion to re-open to be heard by the federal circuits. The legal conclusion reached is that motions to re-open removal proceedings are not purely a discretionary relief, but rather a right with a deeply rooted tradition in American jurisprudence.

Case Background

In the case before the Supreme Court, Kucana v. Holder 533 F. 3d 534 (January 20, 2009), Mr. Kucana, a citizen of Albania overstayed the time permitted on his visa while visiting on business. Seeking relief from removal, Mr. Kucana applied for asylum. The immigration iudge hearing his claim deemed him to be removable and ordered him to later appear at an immigration hearing to determine the merits of his asylum claim Mr. Kucana later failed to appear for the hearing, stating that he had overslept. The immigration judge ordered him removed from the country even though he was not present at the hearing. Mr. Kucana filed a motion to the immigration judge to re-open his case because he had overslept. The immigration judge denied his motion to re-open. His subsequent appeal to the Board of Immigration Appeals (BIA) was also denied.

Years later, Mr. Kucana again appealed to the BIA to re-open his case, arguing that the conditions in his native Albania had worsened and that his case should be heard in light of the new evidence. The BIA again denied his appeal.

Mr. Kucana then appealed to the Federal Circuit Court for the Seventh Circuit, arguing that the BIA had abused its discretion in not re-opening his case. The Seventh Circuit shockingly declined to hear the appeal stating that it lacked jurisdiction to hear discretionary rulings by the BIA.

Mr. Kucana appealed the circuit court’s decision to the Supreme Court of the United States. The United States Attorney General, sensing the futility of the Seventh Circuit’s position, declined to argue before the Supreme Court in opposition to Mr. Kucana. Instead, an amicus curie, or proponent of the Seventh Circuit’s decision argued in place of the Attorney General.

Crash Course in Administrative Agency Law and the Immigration Court System

In order to appreciate the importance of judicial review of motions to re-open before the federal courts, it is necessary to understand the interplay between the immigration courts and the Federal Circuits.

The immigration courts are not the traditional federal court that you and I may think of as portrayed in the movies. In fact, the immigration court system is a branch of the Department of Justice, headed by the Attorney General of the United States. Both the EOIR Immigration Court (trial court) as well as the Board of Immigration Appeals (BIA or appeals court) are underneath the Department of Justice. This is part of the reason why Attorney General Eric Holder is the named opponent of Mr. Kucana in the case we are discussing here.

The Department of Justice is a federal agency. For the purposes of this discussion, a federal agency is an entity to which Congress gives powers enabling the agency to enforce laws on a specific subject. Federal agencies, such as the Department of Justice are often given leeway or “discretion” to create regulations that specify how the broad general laws of congress will be applied to specific situations. For example, the immigration courts are given discretion to overlook certain criminal convictions that an immigrant may have, and grant asylum to the Alien. This type of relief is “discretionary” and is left for the immigration court and the BIA to decide. Discretionary relief cannot be appealed out of the immigration court system. In other words, the BIA is the highest court that will hear appeals on discretionary relief.

Decisions on certain traditional rights, such as motions to re-open a case because of new evidence, can be appealed out of the immigration court system to the federal circuit courts and eventually the US Supreme Court. The federal circuit courts are an entirely different branch of the federal government, not controlled by the Department of Justice or the Attorney General. Although the federal courts normally do not interfere with the decisions made by federal agencies, the federal courts will hear cases that were decided by agencies when the agencies make decisions regarding certain fundamental rights or raise questions of federal law.

What’s the Point of All of This?

Essentially, the Supreme Court re-affirmed that the motion to re-open is a fundamental principal of American jurisprudence and should be able to be heard by the federal courts in order to ensure that aliens in removal proceedings are given a fair opportunity to have their cases decided. The Supreme Court found evidence that motions to re-open in immigration proceedings had a long history of being heard by the federal courts all the way back to 1914.

The federal courts will give the agencies broad discretion in deciding immigration matters, even deciding such cases under the tough to prove “abuse of discretion” standard. In Kucana, the proponent of the Seventh Circuit’s opinion argued that congress had given the Department of Justice the discretion to hear motions to re-open. Because the decision to re-open a case was within the department’s discretion, it was argued that motions to re-open were “discretionary relief.” As discretionary relief, the Federal Courts could not hear an appeal from a motion to re-open.

Thankfully, the Supreme Court disagreed with this interpretation, stating that the motion to re-open in an “important safeguard” intended to ensure “proper and lawful disposition” of immigration proceedings. Furthermore, it was decided that the Attorney General cannot simply label a method of relief to be “discretionary” and therefore keep the case out of the hands of the federal circuits. Congress decides what relief is discretionary and what relief is obligatory if a proper case is made by an Alien, not the Attorney General alone.


It is easy to imagine that the federal circuits would like to remove many of these immigration cases from their dockets. It makes political and economic sense to cut off yet another form of relief for Aliens who wish to continue to reside in the country. But a clear signal was sent in Kucana v. Holder. Specifically, the federal courts are still available to hear cases where new evidence has come to light that materially changes the potential harm to the Alien if he or she were to be deported. The Kucana case is one refreshing instance where the Supreme Court has reaffirmed its position as the steady hand of justice, ready to deliver a fair opportunity to be heard, no matter what the political or economic pressures of the current times may be.