Kucana v. Holder

Summary

The Supreme Court held that 8 U.S.C. §1252(a)(2)(B)(ii)—which strips courts of jurisdiction over Attorney General actions 'the authority for which is specified under this subchapter to be in the discretion of the Attorney General'—reaches only determinations Congress itself made discretionary by statute, not determinations the Attorney General made discretionary by regulation; accordingly, federal courts retain jurisdiction to review BIA denials of motions to reopen removal proceedings. The Court reasoned from statutory context (neighboring jurisdictional bars defined solely by statute), the genre of decisions enumerated in clause (i), legislative history showing Congress never codified the regulation delegating reopening discretion to the BIA, and the well-settled presumption favoring judicial review, reinforced by separation-of-powers concerns that the Executive must not be able to shelter its own decisions from review by regulation. It reversed the Seventh Circuit, which had dismissed Kucana's petition for review on the theory that regulation-made discretion triggers the bar. Justice Alito concurred in the judgment on narrower grounds, contending the governing regulation rested on Subchapter I rather than Subchapter II authority, so the broader question whether regulations can ever trigger the bar need not be resolved.