Motions
to reopen allow aliens facing removal to have their case reexamined by the
Board of Immigration Appeals in light of new evidence or intervening events,
and are an important procedural safeguard in immigration removal proceedings.  Parties may move to reopen, and the Board may
also reopen removal proceedings under its sua sponte authority. Although
federal courts of appeals may review final removal decisions, the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) severely
curtailed the ability of federal courts to review final removal decisions.  Prior to 2010, circuits were split on the
issue of whether motions to reopen were reviewable by federal courts in light
of IIRIRA.

     In Kucana
v. Holder, the U.S. Supreme Court held that a decision to reopen made pursuant
to a party’s motion was reviewable since the discretion to grant or deny such a
motion had derived from a regulation promulgated by the Attorney General.  The Court held that the Executive could not
use regulations alone to change the ability of the federal courts to review
their decisions, but bracketed the issue of whether the decision not to reopen
sua sponte could be reviewed under this same logic.  Following the Court’s decision in 2010, the courts
of appeals are divided over whether such decisions are reviewable; some circuits
have determined that they lack jurisdiction based on pre-Kucana case law, while
others have urged a reconsideration of pre-Kucana decisions in light of the
Supreme Court’s reasoning.

     This Note
argues that the decision not to reopen sua sponte should be subject to judicial
review under the same reasoning applied in Kucana.  Review of these decisions would also be in
line with the Supreme Court’s movement toward greater judicial review of federal
immigration decisions.