Kucana v. Holder and Judicial Review of the Decision Not to Reopen Sua Sponte in Immigration Removal Proceedings

April 2, 2012

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.

April 2012

No. 5