Kucana v. Holder , 130 S. Ct. 827 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KUCANA v. HOLDER, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 08–911. Argued November 10, 2009—Decided January 20, 2010
The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) amended the Immigration and Nationality Act (INA or
Act), codifying certain rules, earlier prescribed by the Attorney Gen
eral, that govern the process of reopening removal proceedings.
IIRIRA also added a provision stating that no court has jurisdiction
to review any action of the Attorney General “the authority for which
is specified under this subchapter to be in the discretion of the Attor
ney General.” 8 U. S. C. §1252(a)(2)(B)(ii). A regulation, amended
just months before IIRIRA’s enactment, provides that “[t]he decision
to grant or deny a motion to reopen . . . is within the discretion of the
[Board of Immigration Appeals (BIA)],” 8 CFR §1003.2(a). As adjudi
cator in immigration cases, the BIA exercises authority delegated by
the Attorney General.
Petitioner Kucana moved to reopen his removal proceedings, as
serting new evidence in support of his plea for asylum. An Immigra
tion Judge denied the motion, and the BIA sustained that ruling.
The Seventh Circuit concluded that it lacked jurisdiction to review
the administrative determination, holding that §1252(a)(2)(B)(ii) bars
judicial review not only of administrative decisions made discretion
ary by statute, but also of those made discretionary by regulation.
Held: Section 1252(a)(2)(B)’s proscription of judicial review applies only
to Attorney General determinations made discretionary by statute,
not to determinations declared discretionary by the Attorney General
himself through regulation. Pp. 6–18.
(a) The motion to reopen is an “important safeguard” intended “to
ensure a proper and lawful disposition” of immigration proceedings.
Dada v. Mukasey, 554 U. S. 1, ___. Federal-court review of adminis
trative decisions denying motions to reopen removal proceedings
2 KUCANA v. HOLDER
Syllabus
dates back to at least 1916, with the courts employing a deferential
abuse-of-discretion standard of review. While the Attorney General’s
regulation in point, 8 CFR §1003.2(a), places the reopening decision
within the BIA’s discretion, the statute does not codify that prescrip
tion or otherwise “specif[y]” that such decisions are in the Attorney
General’s discretion. Pp. 6–7.
(b) Section 1252(a)(2)(B) does not proscribe judicial review of deni
als of motions to reopen. Pp. 8–16.
(1) The amicus defending the Seventh Circuit’s judgment urges
that regulations suffice to trigger §1252(a)(2)(B)(ii)’s proscription.
She comprehends “under” in “authority . . . specified under this sub
chapter” to mean, e.g., “pursuant to,” “subordinate to.” Administra
tive regulations count for §1252(a)(2)(B) purposes, she submits, be
cause they are issued “pursuant to,” and are measures “subordinate
to,” the legislation they serve to implement. On that reading,
§1252(a)(2)(B)(ii) would bar judicial review of any decision that an
executive regulation places within the BIA’s discretion, including the
decision to deny a motion to reopen. The parties, on the other hand,
read the statutory language to mean “specified in,” or “specified by,”
the subchapter. On their reading, §1252(a)(2)(B)(ii) precludes judi
cial review only when the statute itself specifies the discretionary
character of the Attorney General’s authority. Pp. 8–9.
(2) The word “under” “has many dictionary definitions and must
draw its meaning from its context.” Ardestani v. INS, 502 U. S. 129,
135. Examining the provision at issue in statutory context, the par
ties’ position stands on firmer ground. Section 1252(a)(2)(B)(ii) is far
from IIRIRA’s only jurisdictional limitation. It is sandwiched be
tween two subsections, §1252(a)(2)(A) and §1252(a)(2)(C), both de
pendent on statutory provisions, not on any regulation, to define
their scope. Given §1252(a)(2)(B)’s statutory placement, one would
expect that it, too, would cover statutory provisions alone. Pp. 9–11.
(3) Section 1252(a)(2)(B)(i) places within the no-judicial-review
category “any judgment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255.” Each of the referenced
statutory provisions addresses a different form of discretionary relief
from removal and contains language indicating that the decision is
entrusted to the Attorney General’s discretion. Clause (i) does not re
fer to any regulatory provision. The proximity of clause (i) and the
clause (ii) catchall, and the words linking them—“any other deci
sion”—suggests that Congress had in mind decisions of the same
genre, i.e., those made discretionary by legislation. Read harmoni
ously, both clauses convey that Congress barred court review of dis
cretionary decisions only when Congress itself set out the Attorney
General’s discretionary authority in the statute. Pp. 11–12.
Cite as: 558 U. S. ____ (2010) 3
Syllabus
(4) Also significant is the character of the decisions insulated
from judicial review in §1252(a)(2)(B)(i). The listed determinations
are substantive decisions the Executive makes involving whether or
not aliens can stay in the country. Other decisions specified by stat
ute “to be in the discretion of the Attorney General,” and therefore
shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind.
See, e.g., §1157(c)(1). Decisions on reopening motions made discre
tionary by regulation, in contrast, are adjunct rulings. A court deci
sion reversing the denial of a motion to reopen does not direct the
Executive to afford the alien substantive relief; ordinarily, it touches
and concerns only the question whether the alien’s claims have been
accorded a reasonable hearing. Had Congress wanted the jurisdic
tional bar to encompass decisions specified as discretionary by regu
lation as well as by statute, moreover, Congress could easily have
said so, as it did in provisions enacted simultaneously with
§1252(a)(2)(B)(ii). See, e.g., IIRIRA, §213, 110 Stat. 3009–572.
Pp. 12–14.
(5) The history of the relevant statutory provisions corroborates
this determination. Attorney General regulations have long ad
dressed reopening requests. In enacting IIRIRA, Congress simulta
neously codified the process for filing motions to reopen and acted to
bar judicial review of a number of executive decisions regarding re
moval. But Congress did not codify the regulation delegating to the
BIA discretion to grant or deny reopening motions. This legislative
silence indicates that Congress left the matter where it was pre-
IIRIRA: The BIA has broad discretion, conferred by the Attorney
General, “to grant or deny a motion to reopen,” 8 CFR §1003.2(a), but
courts retain jurisdiction to review the BIA’s decision. It is unsur
prising that Congress would leave in place judicial oversight of this
“important [procedural] safeguard,” Dada, 554 U. S., at ___, where,
as here, the alien’s underlying asylum claim would itself be review
able. The REAL ID Act of 2005, which further amended the INA by
adding or reformulating provisions on asylum, protection from re
moval, and even judicial review, did not disturb the unbroken line of
decisions upholding court review of administrative denials of motions
to reopen. Pp. 14–16.
(c) Any lingering doubt about §1252(a)(2)(B)(ii)’s proper interpreta
tion would be dispelled by a familiar statutory construction principle:
the presumption favoring judicial review of administrative action.
When a statute is “reasonably susceptible to divergent interpreta
tion,” this Court adopts the reading “that executive determinations
generally are subject to judicial review.” Gutierrez de Martinez v.
Lamagno, 515 U. S. 417, 434. The Court has consistently applied
this interpretive guide to legislation regarding immigration, and par
4 KUCANA v. HOLDER
Syllabus
ticularly to questions concerning the preservation of federal-court ju
risdiction. See, e.g., Reno v. Catholic Social Services, Inc., 509 U. S.
43, 63–64. Because this presumption is “ ‘well-settled,’ ” ibid., the
Court assumes that “Congress legislates with knowledge of” it,
McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496. It there
fore takes “ ‘ “clear and convincing evidence” ’ ” to dislodge the pre
sumption. Catholic Social Services, Inc., 509 U. S., at 64. There is no
such evidence here. Finally, reading §1252(a)(2)(B)(ii) to apply to
matters where discretion is conferred on the BIA by regulation would
ignore Congress’ design to retain for itself control over federal-court
jurisdiction. The Seventh Circuit’s construction would free the Ex
ecutive to shelter its own decisions from abuse-of-discretion appellate
court review simply by issuing a regulation declaring those decisions
“discretionary.” Such an extraordinary delegation of authority can
not be extracted from the statute Congress enacted. Pp. 16–17.
533 F. 3d 534, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, BREYER, and SO-
TOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the
judgment.
Cite as: 558 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–911
_________________
AGRON KUCANA, PETITIONER v. ERIC H. HOLDER,
JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[January 20, 2010]
JUSTICE GINSBURG delivered the opinion of the Court.
Petitioner Agron Kucana moved to reopen his removal
proceedings, asserting new evidence in support of his plea
for asylum. An Immigration Judge (IJ) denied the motion,
the Board of Immigration Appeals (BIA or Board) sus
tained the IJ’s ruling, and the U. S. Court of Appeals for
the Seventh Circuit concluded that it lacked jurisdiction to
review the administrative determination. For that conclu
sion, the court relied on a provision added to the Immigra
tion and Nationality Act (INA or Act), 66 Stat. 166, 8
U. S. C. §1101 et seq., by the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), 110
Stat. 3009–546. The provision found dispositive by the
Seventh Circuit, 8 U. S. C. §1252(a)(2)(B), states that no
court shall have jurisdiction to review any action of the
Attorney General “the authority for which is specified
under this subchapter to be in the discretion of the Attor
ney General,” §1252(a)(2)(B)(ii) (emphasis added).
We granted certiorari to decide whether the proscription
of judicial review stated in §1252(a)(2)(B) applies not only
to Attorney General determinations made discretionary by
2 KUCANA v. HOLDER
Opinion of the Court
statute, but also to determinations declared discretionary
by the Attorney General himself through regulation. We
hold that the key words “specified under this subchapter”
refer to statutory, but not to regulatory, specifications. We
so rule based on the longstanding exercise of judicial
review of administrative rulings on reopening motions, the
text and context of §1252(a)(2)(B), and the history of the
relevant statutory provisions. We take account, as well, of
the “presumption favoring interpretations of statutes [to]
allow judicial review of administrative action.” Reno v.
Catholic Social Services, Inc., 509 U. S. 43, 63–64 (1993)
(quoting McNary v. Haitian Refugee Center, Inc., 498 U. S.
479, 496 (1991)). Separation-of-powers concerns, more
over, caution us against reading legislation, absent clear
statement, to place in executive hands authority to remove
cases from the Judiciary’s domain.
I
A
In IIRIRA, Congress for the first time codified certain
rules, earlier prescribed by the Attorney General, govern
ing the reopening process. The amended Act instructs
that reopening motions “shall state the new facts that will
be proven at a hearing to be held if the motion is granted,
and shall be supported by affidavits or other evidentiary
material.” §1229a(c)(7)(B). Congress also prescribed that
“the motion to reopen shall be filed within 90 days of the
date of entry of a final administrative order of removal.”
§1229a(c)(7)(C)(i). Among matters excepted from the 90
day limitation are motions to reopen asylum applications
because of changed conditions in the country of nationality
or removal. §1229a(c)(7)(C)(ii).
Section 1252(a)(2), captioned “Matters not subject to
judicial review,” contains the provision on which this case
turns. Subparagraph (B) of that paragraph, headed “De
nials of discretionary relief,” states:
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Opinion of the Court
“Notwithstanding any other provision of law (statu
tory or nonstatutory), . . . except as provided in sub
paragraph (D),[1] and regardless of whether the judg
ment, decision, or action is made in removal
proceedings, no court shall have jurisdiction to re
view—
“(i) any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or 1255
of this title,[2] or
“(ii) any other decision or action of the Attorney
General . . . the authority for which is specified under
this subchapter[3] to be in the discretion of the Attor
ney General . . . , other than the granting of relief un
der section 1158(a) of this title.”4
——————
1 Subparagraph (D) of §1252(a)(2), enacted in 2005, REAL ID Act of
2005 (REAL ID Act), §106(a), 119 Stat. 310, adds:
“Nothing in subparagraph (B) . . . or in any other provision of this Act
(other than this section) which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an appro
priate court of appeals in accordance with this section.”
The addition of 8 U. S. C. §1252(a)(2)(D) in 2005 did not change the
operative language of §1252(a)(2)(B)(ii) as enacted in 1996.
The REAL ID Act amendments also inserted into this introductory
clause, inter alia, the words “(statutory or nonstatutory).”
§106(a)(1)(A)(ii), 119 Stat. 310. The introductory clause, however, does
not define the scope of 8 U. S. C. §1252(a)(2)(B)(ii)’s jurisdictional bar.
It simply informs that once the scope of the bar is determined, jurisdic
tion is precluded regardless of what any other provision or source of law
might say.
2 Sections 1182(h) and 1182(i) address waivers of inadmissibility
based on certain criminal offenses, and fraud or misrepresentation,
respectively; §1229b addresses cancellation of removal; §1229c, volun
tary departure; and §1255, adjustment of status.
3 “[T]his subchapter” refers to Title 8, Chapter 12, Subchapter II, of
the United States Code, codified at 8 U. S. C. §§1151–1381 and titled
“Immigration.”
4 The exception for relief under §1158(a) refers to administrative deci
sions whether to grant asylum. Kucana’s petition for judicial review is
4 KUCANA v. HOLDER
Opinion of the Court
A regulation, amended in 1996, just months before Con
gress enacted IIRIRA, 61 Fed. Reg. 18904, Pt. 3, §3.2(a),
states that “[t]he decision to grant or deny a motion to
reopen . . . is within the discretion of the Board.” 8 CFR
§1003.2(a) (2009). As adjudicator in immigration cases,
the Board exercises authority delegated by the Attorney
General. See 8 U. S. C. §1103(g)(2); 8 CFR §1003.1. See
also 8 CFR §1003.23(b)(3) (governing motions to reopen
filed with an IJ).
B
Kucana, a citizen of Albania, entered the United States
on a business visa in 1995 and remained after the visa
expired. Alleging that he would be persecuted based on
his political beliefs if returned to Albania, Kucana applied
for asylum and withholding of removal in 1996. An IJ
determined that Kucana was removable and scheduled a
hearing to evaluate his eligibility for asylum. When Ku
cana failed to appear for the hearing, the IJ immediately
ordered his removal in absentia. Kucana filed a motion to
reopen, explaining that he had missed his hearing because
he had overslept. The IJ denied the motion, and the BIA
affirmed in 2002. Kucana did not seek judicial review, nor
did he leave the United States.
Kucana filed a second motion to reopen his removal
proceedings in 2006, contending that conditions in Albania
had worsened.5 The BIA denied relief; it concluded that
conditions in Albania had actually improved since 1997.
Arguing that the BIA had abused its discretion in denying
——————
limited to the denial of his motion to reopen; he does not challenge in
this proceeding the decision denying his application for asylum.
5 The statute “guarantees to each alien the right to file ‘one motion to
reopen proceedings.’ ” Dada v. Mukasey, 554 U. S. 1, __ (2008) (slip op.,
at 12) (quoting §1229a(c)(7)(A)). Attorney General regulations permit
further motions to reopen to seek asylum or withholding of removal
based on changed conditions in the country of nationality or removal.
See 8 CFR §1003.2(c)(3)(ii) (2009).
Cite as: 558 U. S. ____ (2010) 5
Opinion of the Court
his motion, Kucana filed a petition for review in the Sev
enth Circuit.
In a fractured decision, the Seventh Circuit dismissed
the petition for lack of jurisdiction. Kucana v. Mukasey,
533 F. 3d 534, 539 (2008). The court held that 8 U. S. C.
§1252(a)(2)(B)(ii) bars judicial review not only of adminis
trative decisions made discretionary by statute, but also
“when the agency’s discretion is specified by a regulation
rather than a statute.” 533 F. 3d, at 536.6 In so ruling,
the Seventh Circuit created a split between itself and
other Courts of Appeals, all of them holding that denials of
reopening motions are reviewable in court.7
Judge Ripple concurred dubitante. He acknowledged
that the court was following an earlier decision, Ali v.
Gonzales, 502 F. 3d 659 (CA7 2007),8 but “suggest[ed]
that, had Congress intended to deprive th[e] court of juris
diction . . . , it would have done so explicitly, as it did in 8
U. S. C. §1252(a)(2)(B)(i).” 533 F. 3d, at 540. The court,
——————
6 While recognizing that a regulation, rather than the INA itself,
confers on the Board discretion to grant or deny a motion to reopen, the
Court of Appeals said that the regulation, §1003.2(a), “draw[s] . . . force
from provisions in the Act allowing immigration officials to govern their
own proceedings.” 533 F. 3d, at 536. The “force,” according to the
Seventh Circuit, comes from 8 U. S. C. §1229a(c)(7), which it described
as providing “authority for reopening by [the] Board.” 533 F. 3d, at
536. Section 1229a(c)(7), however, is not directed to the agency’s
discretion to grant or deny motions to reopen. In the main, “it simply
lays out the requirements an alien must fulfill when filing a motion to
reopen.” Id., at 541 (Cudahy, J., dissenting) (emphasis added). See
also infra, at 7, n. 9.
7 See Singh v. Mukasey, 536 F. 3d 149, 153–154 (CA2 2008); Jahjaga
v. Attorney Gen. of United States, 512 F. 3d 80, 82 (CA3 2008); Zhao v.
Gonzales, 404 F. 3d 295, 303 (CA5 2005); Miah v. Mukasey, 519 F. 3d
784, 789, n. 1 (CA8 2008); Medina-Morales v. Ashcroft, 371 F. 3d 520,
528–529 (CA9 2004); Infanzon v. Ashcroft, 386 F. 3d 1359, 1361–1362
(CA10 2004).
8 Ali involved a decision, made discretionary by regulation, denying
an alien’s request for a continuance.
6 KUCANA v. HOLDER
Opinion of the Court
he concluded, should revisit both Ali and Kucana and
“chart a course . . . more closely adher[ing] to the statutory
language chosen and enacted by Congress.” 533 F. 3d, at
540.
Judge Cudahy dissented. Given the absence of “specific
[statutory] language entrusting the decision on a motion
to reopen to the discretion of the Attorney General,” ibid.(internal quotation marks omitted), he saw no impediment
to the exercise of jurisdiction over Kucana’s petition. In
support of his position, Judge Cudahy invoked the “strong
presumption that Congress intends judicial review of
administrative action.” Id., at 541 (quoting Traynor v.
Turnage, 485 U. S. 535, 542 (1988)). With four judges
dissenting, the Seventh Circuit denied Kucana’s petition
for rehearing en banc. See 533 F. 3d, at 541–542 (dissent
ing statement of Ripple, J., joined by Rovner, Wood, and
Williams, JJ.).
We granted certiorari, 556 U. S. ___ (2009), to re-
solve the Circuit conflict. As it did before the Seventh
Circuit, the Government agrees with Kucana that
§1252(a)(2)(B)(ii) does not remove federal-court jurisdic
tion to review the denial of a reopening motion. We ap
pointed Amanda C. Leiter to brief and argue the case, as
amicus curiae, in support of the Seventh Circuit’s judg
ment. 557 U. S. ___ (2009). Ms. Leiter has ably dis
charged her assigned responsibilities.
II
The motion to reopen is an “important safeguard” in
tended “to ensure a proper and lawful disposition” of
immigration proceedings. Dada v. Mukasey, 554 U. S. 1,
___ (2008) (slip op., at 15–16); cf. Stone v. INS, 514 U. S.
386, 401 (1995) (analogizing motions to reconsider immi
gration decisions to motions for relief from a judgment
under Federal Rule of Civil Procedure 60(b)). Federal
court review of administrative decisions denying motions
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Opinion of the Court
to reopen removal proceedings dates back to at least 1916.
See Dada, 554 U. S., at ___ (slip op., at 9–10) (citing
cases). This Court has ultimately reviewed reopening
decisions on numerous occasions. See, e.g., INS v. Do
herty, 502 U. S. 314, 322–324 (1992); INS v. Abudu, 485
U. S. 94, 104–111 (1988); INS v. Rios-Pineda, 471 U. S.
444, 449–452 (1985); INS v. Jong Ha Wang, 450 U. S. 139,
141–146 (1981) (per curiam). Mindful of the Board’s
“broad discretion” in such matters, however, courts have
employed a deferential, abuse-of-discretion standard of
review. See Doherty, 502 U. S., at 323 (internal quotation
marks omitted).
The Seventh Circuit held that Congress removed the
authority long exercised by federal courts to review deni
als of an alien’s reopening request. Congress did so, the
Court of Appeals said, in §1252(a)(2)(B)(ii), which removes
jurisdiction to review a decision of the Attorney General
“the authority for which is specified under this subchapter
to be in the discretion of the Attorney General.” All agree
that the Attorney General’s regulation, 8 CFR §1003.2(a),
places “[t]he decision to grant or deny a motion to reopen
. . . within the discretion of the Board.” But the statute
does not codify that prescription,9 and does not otherwise
“specif[y]” that reopening decisions are “in the discretion
of the Attorney General.”10
——————
9 As earlier noted, see supra, at 5, n. 6, the Seventh Circuit stated
that the regulation specifying the Board’s discretion over motions to
reopen, 8 CFR §1003.2(a), “draw[s] [its] force from provisions in the
Act.” 533 F. 3d, at 536 (citing 8 U. S. C. §1229a(c)(7)). It is hard to see
how the regulation could draw force from §1229a(c)(7), for the regula
tion was already in force when that statutory provision was enacted.
The regulation, 8 CFR §1003.2(a), was published April 29, 1996, 61
Fed. Reg. 18900, 18904; 8 U. S. C. §1229a(c)(7) was enacted September
30, 1996, §304, 110 Stat. 3009–593.
10 The only statutory reference to discretion respecting motions to
reopen appears in §1229a(c)(7)(C)(iv)(III), which gives the Attorney
General “discretion” to waive one of the statute’s time limitations in
8 KUCANA v. HOLDER
Opinion of the Court
III
A
1
The Board’s discretionary authority to act on a motion to
reopen, we have thus far explained, is “specified” not in a
statute, but only in the Attorney General’s regulation,
which instructs: “The decision to grant or deny a motion to
reopen . . . is within the discretion of the Board, subject to
the restrictions of this section. The Board has discretion
to deny a motion to reopen even if the party moving has
made out a prima facie case for relief.” 8 CFR §1003.2(a).
Nevertheless, in defense of the Seventh Circuit’s judg
ment, amicus urges that regulations suffice to trigger 8
U. S. C. §1252(a)(2)(B)(ii)’s proscription of judicial review.
The jurisdiction-stripping provision, amicus reminds,
refers to “authority . . . specified under this subchapter.”
As she reads that formulation, the word “under” is key.
She comprehends “under” to mean “pursuant to,” “subor
dinate to,” “below or lower than,” “inferior . . . in rank or
importance,” “by reason of the authority of.” Brief for
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extraordinary circumstances.
Amicus urges that “the statutory language governing motions to
reopen anticipates an exercise of Attorney General discretion when it
states, ‘[t]he motion to reopen shall state the new facts that will be
proven at a hearing to be held if the motion is granted.’ ” Brief for
Court-Appointed Amicus Curiae in Support of Judgment Below 19, n. 8
(quoting §1229a(c)(7)(B)). One can demur to the argument that Con
gress anticipated that decisions on reopening motions would be discre
tionary. Even so, the statutory proscription Congress enacted,
§1252(a)(2)(B)(ii), speaks of authority “specified”—not merely assumed
or contemplated—to be in the Attorney General’s discretion. “Speci
fied” is not synonymous with “implied” or “anticipated.” See Webster’s
New Collegiate Dictionary 1116 (1974) (“specify” means “to name or
state explicitly or in detail”). See also Soltane v. U. S. Dept. of Justice,
381 F. 3d 143, 147 (CA3 2004) (Alito, J.) (“[W]e do not think . . . that the
use of marginally ambiguous statutory language, without more, is
adequate to ‘specif[y]’ that a particular action is within the Attorney
General’s discretion for the purposes of §1252(a)(2)(B)(ii).”).
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Opinion of the Court
Court-Appointed Amicus Curiae in Support of Judgment
Below 15, 17 (citing, inter alia, Florida Dept. of Revenue v.
Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip
op., at 5); Ardestani v. INS, 502 U. S. 129, 135 (1991)).
Administrative regulations count for §1252(a)(2)(B) pur
poses, she urges, because they are issued “pursuant to,”
and are measures “subordinate to,” the legislation they
serve to implement. The parties, on the other hand, read
“specified under this subchapter” to mean “specified in,” or
“specified by,” the subchapter.11
On the reading amicus advances, §1252(a)(2)(B)(ii)
would bar judicial review of any decision that an executive
regulation places within the BIA’s discretion, including
the decision to deny a motion to reopen. On the parties’
reading, however, §1252(a)(2)(B)(ii) precludes judicial
review only when the statute itself specifies the discre
tionary character of the Attorney General’s authority.
2
As the parties and amicus recognize, their diverse ren
derings of “under,” standing alone, do not equip us to
resolve this case. The word “under” is chameleon; it “has
many dictionary definitions and must draw its meaning
from its context.” Ardestani, 502 U. S., at 135.12 Examin
——————
11 Defining “under,” as used in §1252(a)(2)(B)(ii), to mean “pursuant
to,” or “subordinate to,” and not “in” or “by,” the Attorney General
observes, would give rise to “a fatal anomaly”: “Section 1252(a)(2)(B)(ii)
would apply only to regulations promulgated ‘under the authority of’
the relevant subchapter, and not to specifications of discretion in the
subchapter itself.” Reply Brief for Respondent 6.
12 In an appendix to her brief, amicus lists hundreds of statutory
provisions in which regulations are described as being issued “under” a
statute. See App. A to Brief for Court-Appointed Amicus Curiae in
Support of Judgment Below. In every one of those examples, Congress
expressly used the word “regulations.”
At oral argument, amicus called our attention to three instances in
which Congress used the words “specified under” in Title 8, without any
reference to “regulations,” to encompass agency matters. Tr. of Oral
10 KUCANA v. HOLDER
Opinion of the Court
ing, in statutory context, the provision in which the word
“under” is embedded, we conclude that the parties’ posi
tion stands on firmer ground.
Section 1252(a)(2)(B)(ii), the provision at issue here, is
far from the only jurisdictional limitation in IIRIRA. See
Dada, 554 U. S., at ___ (slip op., at 13) (“In reading a
statute we must not look merely to a particular clause, but
consider in connection with it the whole statute.” (internal
quotation marks omitted)); Davis v. Michigan Dept. of
Treasury, 489 U. S. 803, 809 (1989) (“[T]he words of a
statute must be read in their context and with a view to
their place in the overall statutory scheme.”). Section
1252(a)(2), titled “Matters not subject to judicial review,”
lists a variety of agency determinations the federal courts
lack jurisdiction to review. Those determinations divide
into three categories. The first, §1252(a)(2)(A), concerns
immigration officers’ determinations whether aliens apply
ing for admission are admissible. Next in statutory order
is the provision before us, §1252(a)(2)(B), which involves
denials of discretionary relief. The last category,
§1252(a)(2)(C), concerns final orders of removal entered
against criminal aliens.
Both §1252(a)(2)(A) and §1252(a)(2)(C) depend on statu
tory provisions, not on any regulation, to define their
scope. The latter provision, the criminal alien bar, pre
cludes judicial review of “any final order of removal
against an alien who is removable by reason of having
committed a criminal offense covered in” §1182(a)(2),
§1227(a)(2)(A)(iii), (B), (C), or (D), or certain offenses
covered in §1227(a)(2)(A)(ii). All the defining references
are statutory; none invokes a regulation. The same holds
——————
Arg. 47–48, 54–55 (citing §§1227(a)(1)(H), 1375a(a)(6), and 1537(b)(1)).
These three provisions point to other parts of the Act, which in turn
rely on administrative determinations. Amicus’ research underscores
the point that context defines “under.”
Cite as: 558 U. S. ____ (2010) 11
Opinion of the Court
for the admissibility bar in §1252(a)(2)(A). Given
§1252(a)(2)(B)’s statutory placement, sandwiched between
subsections (a)(2)(A) and (a)(2)(C), one would expect that
it, too, would cover statutory provisions alone.
3
Focusing on §1252(a)(2)(B), we note the lead line serving
to introduce both of the subparagraph’s two clauses: “[N]o
court shall have jurisdiction to review . . . .” Clause (i)
then places within the no-judicial-review category “any
judgment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255.” Each of the
statutory provisions referenced in clause (i) addresses a
different form of discretionary relief from removal, see
supra, at 3, n. 2, and each contains language indicating
that the decision is entrusted to the Attorney General’s
discretion. See, e.g., §1182(h) (“The Attorney General
may, in his discretion, waive [inadmissibility based on
certain criminal offenses].”). Clause (i) does not refer to
any regulatory provision.
To the clause (i) enumeration of administrative judg
ments that are insulated from judicial review, Congress
added in clause (ii) a catchall provision covering “any
other decision . . . the authority for which is specified
under this subchapter.” The proximity of clauses (i) and
(ii), and the words linking them—“any other decision”—
suggests that Congress had in mind decisions of the same
genre, i.e., those made discretionary by legislation.13 The
clause (i) enumeration, we find, is instructive in determin
——————
13 Congress excepted from §1252(a)(2)(B)(ii) “the granting of relief
under [§]1158(a).” Section 1158 concerns applications for asylum.
Absent the exception, asylum applicants might fall within
§1252(a)(2)(B)(ii)’s jurisdictional bar because a statutory provision,
§1158(b)(1)(A), specifies that “the Attorney General may grant asylum.”
(Emphasis added.) See Zadvydas v. Davis, 533 U. S. 678, 697 (2001)
(“ ‘may’ suggests discretion”).
12 KUCANA v. HOLDER
Opinion of the Court
ing the meaning of the clause (ii) catchall. Read harmoni
ously, both clauses convey that Congress barred court
review of discretionary decisions only when Congress itself
set out the Attorney General’s discretionary authority in
the statute. See Hall Street Associates, L. L. C. v. Mattel,
Inc., 552 U. S. ___, ___ (2008) (slip op., at 9) (“[W]hen a
statute sets out a series of specific items ending with a
general term, that general term is confined to covering
subjects comparable to the specifics it follows.”).14
4
We also find significant the character of the decisions
Congress enumerated in §1252(a)(2)(B)(i), thereby insulat
ing them from judicial review. As the Government ex
plained at oral argument, the determinations there listed
are “substantive decisions . . . made by the Executive in
the immigration context as a matter of grace, things that
involve whether aliens can stay in the country or not.” Tr.
of Oral Arg. 14.15 They include waivers of inadmissibility
based on certain criminal offenses, §1182(h), or based on
fraud or misrepresentation, §1182(i); cancellation of re
——————
14 Amicus suggests that the word “any” in §1252(a)(2)(B)(ii) should be
read expansively to draw in decisions made discretionary by regulation.
Brief for Court-Appointed Amicus Curiae in Support of Judgment
Below 21–23. But §1252(a)(2)(B)(ii) does not say “any decision”; it says
“any other decision.” And as we have just explained, other decisions
falling within §1252(a)(2)(B)(ii)’s compass are most sensibly understood
to include only decisions made discretionary by Congress. See Brief for
Respondent 19–20, and n. 11 (noting that “over thirty provisions in the
relevant subchapter of the INA . . . explicitly grant the Attorney Gen
eral . . . ‘discretion’ to make a certain decision”).
15 Counsel offered this explanation in response to the question: “Why
would Congress want to exclude review for discretionary judgments by
the Attorney General that are recited explicitly to be discretionary in
the statute, but provide judicial review for judgments that are just as
lawfully discretionary because the Attorney General is given the
authority to make them discretionary and has done so?” Tr. of Oral
Arg. 9; see id., at 13–14.
Cite as: 558 U. S. ____ (2010) 13
Opinion of the Court
moval, §1229b; permission for voluntary departure,
§1229c; and adjustment of status, §1255.
Other decisions specified by statute “to be in the discre
tion of the Attorney General,” and therefore shielded from
court oversight by §1252(a)(2)(B)(ii), are of a like kind.
See, e.g., §1157(c)(1) (discretion to admit refugees “deter
mined to be of special humanitarian concern to the United
States”); §1181(b) (discretion to waive requirement of
documentation for readmission); §1182(a)(3)(D)(iv) (discre
tion to waive, in certain cases, inadmissibility of aliens
who have affiliated with a totalitarian party). Decisions
on reopening motions made discretionary by regulation, in
contrast, are adjunct rulings: The motion to reopen is a
procedural device serving to ensure “that aliens [a]re
getting a fair chance to have their claims heard.” Tr. of
Oral Arg. 17. A court decision reversing the denial of a
motion to reopen does not direct the Executive to afford
the alien substantive relief; ordinarily, it touches and
concerns only the question whether the alien’s claims have
been accorded a reasonable hearing.
If Congress wanted the jurisdictional bar to encompass
decisions specified as discretionary by regulation along
with those made discretionary by statute, moreover, Con
gress could easily have said so. In other provisions en
acted simultaneously with §1252(a)(2)(B)(ii), Congress
expressed precisely that meaning. See IIRIRA, §213, 110
Stat. 3009–572 (“immigration benefits pursuant to this
Act; or the regulations promulgated thereunder”), codified
at 8 U. S. C. §1324c(e)(2); IIRIRA, §372, 110 Stat. 3009–
646 (“any of the powers, privileges, or duties conferred or
imposed by this Act or regulations issued thereunder”),
codified at 8 U. S. C. §1103(a)(10). “[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.” Nken v. Holder,
14 KUCANA v. HOLDER
Opinion of the Court
556 U. S. ___, ___ (2009) (slip op., at 11) (internal quota
tion marks omitted).
B
The history of the relevant statutory provisions corrobo
rates our determination that §1252(a)(2)(B)(ii) does not
proscribe judicial review of denials of motions to reopen.
Attorney General regulations have long addressed reopen
ing requests. See 6 Fed. Reg. 71–72 (1941). The current
regulations, adopted in 1996, 61 Fed. Reg. 18904–18906,
derive from rules published in 1958, see 23 Fed. Reg.
9118–9119; Dada, 554 U. S., at ___ (slip op., at 10).
Enacting IIRIRA in 1996, Congress “transform[ed] the
motion to reopen from a regulatory procedure to a statu
tory form of relief available to the alien.” Id., at ___ (slip
op., at 12). IIRIRA largely codified the Attorney General’s
directions on filing reopening motions. See §1229a(c)(7)
(guaranteeing right to file one motion, prescribing con
tents, and setting deadlines).
In the same legislation, Congress amended the INA
aggressively to expedite removal of aliens lacking a legal
basis to remain in the United States. See Reno v. Ameri
can-Arab Anti-Discrimination Comm., 525 U. S. 471, 475
(1999). Among IIRIRA’s several proscriptions of judicial
review is the one here at issue, §1252(a)(2)(B)(ii), barring
review of administrative decisions Congress placed within
the Attorney General’s discretion.
Congress thus simultaneously codified the process for
filing motions to reopen and acted to bar judicial review of
a number of executive decisions regarding removal. But
Congress did not codify the regulation delegating to the
BIA discretion to grant or deny motions to reopen. See 8
CFR §1003.2(a) (reopening may be entertained not only on
application; Board “may at any time reopen . . . on its own
motion any case in which it has rendered a decision”).
Had Congress elected to insulate denials of motions to
Cite as: 558 U. S. ____ (2010) 15
Opinion of the Court
reopen from judicial review, it could have so specified
together with its codification of directions on filing reopen
ing motions.
From the Legislature’s silence on the discretion of the
Attorney General (or his delegate, the Board) over reopen
ing motions, see supra, at 7–8, n. 10, we take it that Con
gress left the matter where it was pre-IIRIRA: The BIA
has broad discretion, conferred by the Attorney General,
“to grant or deny a motion to reopen,” 8 CFR §1003.2(a),
but courts retain jurisdiction to review, with due respect,
the Board’s decision.16 It is unsurprising that Congress
would leave in place judicial oversight of this “important
[procedural] safeguard” designed “to ensure a proper and
lawful disposition” of immigration proceedings, Dada, 554
U. S., at ___ (slip op., at 15–16), where, as here, the alien’s
underlying claim (for asylum) would itself be reviewable.17
In the REAL ID Act, Congress further amended the
INA. By 2005, two Courts of Appeals had already ruled
that 8 U. S. C. §1252(a)(2)(B)(ii) did not preclude them
——————
16 A statement in the House Conference Report on IIRIRA, amicus
suggests, supports her argument that Congress intended broadly to
foreclose judicial review of reopening denials. Brief for Court-
Appointed Amicus Curiae in Support of Judgment Below 32–34. The
report states that §1252(a)(2)(B) “bars judicial review . . . of any deci
sion or action of the Attorney General which is specified to be in the
discretion of the Attorney General.” H. R. Conf. Rep. No. 104–828,
p. 219 (1996). That statement, as we read it, simply summarizes the
statutory text at a general level. It does not home in on the question
whether decisions made discretionary only by regulation are judicially
reviewable.
17 We do not reach the question whether review of a reopening denial
would be precluded if the court would lack jurisdiction over the alien’s
underlying claim for relief. Some courts confronting that question have
refused to consider petitions for review of a reopening denial that seeks
to revisit the denial of the underlying claim; they have reasoned that
hearing the petition would end-run the bar to review of the petitioner’s
core claim. See, e.g., Assaad v. Ashcroft, 378 F. 3d 471, 473–475 (CA5
2004) (per curiam).
16 KUCANA v. HOLDER
Opinion of the Court
from reviewing denials of motions to reopen, see Infanzon
v. Ashcroft, 386 F. 3d 1359, 1361–1362 (CA10 2004); Me
dina-Morales v. Ashcroft, 371 F. 3d 520, 528–529 (CA9
2004), and no court had reached a contrary result. Al
though adding or reformulating provisions on asylum,
§101(a), (b), 119 Stat. 302–303, protection from removal,
§101(c), (d), id., at 303–305, even judicial review, §106, id.,
at 310–311, the REAL ID Act did not disturb the unbroken
line of decisions upholding court review of administrative
denials of motions to reopen. See supra, at 6–7; supra, at
3, n. 1.18
IV
Any lingering doubt about the proper interpretation of 8
U. S. C. §1252(a)(2)(B)(ii) would be dispelled by a familiar
principle of statutory construction: the presumption favor
ing judicial review of administrative action. When a
statute is “reasonably susceptible to divergent interpreta
tion, we adopt the reading that accords with traditional
understandings and basic principles: that executive de
terminations generally are subject to judicial review.”
Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 434
(1995). We have consistently applied that interpretive
guide to legislation regarding immigration, and particu
larly to questions concerning the preservation of federal
court jurisdiction. See, e.g., INS v. St. Cyr, 533 U. S. 289,
298 (2001); Catholic Social Services, Inc., 509 U. S., at 63–
64; McNary, 498 U. S., at 496. Because the “presumption
favoring interpretations of statutes [to] allow judicial
——————
18 We express no opinion on whether federal courts may review the
Board’s decision not to reopen removal proceedings sua sponte. Courts
of Appeals have held that such decisions are unreviewable because
sua sponte reopening is committed to agency discretion by law, see 5
U. S. C. §701(a)(2). See, e.g., Tamenut v. Mukasey, 521 F. 3d 1000,
1003–1004 (CA8 2008) (en banc) (per curiam) (agreeing with ten other
Courts of Appeals).
Cite as: 558 U. S. ____ (2010) 17
Opinion of the Court
review of administrative action” is “well-settled,” Catholic
Social Services, Inc., 509 U. S., at 63–64 (quoting McNary,
498 U. S., at 496), the Court assumes that “Congress
legislates with knowledge of” the presumption, id., at 496.
It therefore takes “clear and convincing evidence” to dis
lodge the presumption. Catholic Social Services, Inc., 509
U. S., at 64 (internal quotation marks omitted). There is
no such evidence here.
Finally, we stress a paramount factor in the decision we
render today. By defining the various jurisdictional bars
by reference to other provisions in the INA itself, Congress
ensured that it, and only it, would limit the federal courts’
jurisdiction. To read §1252(a)(2)(B)(ii) to apply to matters
where discretion is conferred on the Board by regulation,
rather than on the Attorney General by statute, would
ignore that congressional design. If the Seventh Circuit’s
construction of §1252(a)(2)(B)(ii) were to prevail, the Ex
ecutive would have a free hand to shelter its own decisions
from abuse-of-discretion appellate court review simply by
issuing a regulation declaring those decisions “discretion
ary.” Such an extraordinary delegation of authority can
not be extracted from the statute Congress enacted.
V
A statute affecting federal jurisdiction “must be con
strued both with precision and with fidelity to the terms
by which Congress has expressed its wishes.” Cheng Fan
Kwok v. INS, 392 U. S. 206, 212 (1968). As we have noted,
see supra, at 14, and as amicus emphasizes, “many provi
sions of IIRIRA [we]re aimed at protecting [from court
review exercises of] the Executive’s discretion.” American-
Arab Anti-Discrimination Comm., 525 U. S., at 486 (em
phasis deleted). But “no law pursues its purpose at all
costs, and . . . the textual limitations upon a law’s scope
are no less a part of its ‘purpose’ than its substantive
authorizations.” Rapanos v. United States, 547 U. S. 715,
18 KUCANA v. HOLDER
Opinion of the Court
752 (2006) (plurality opinion). While Congress pared back
judicial review in IIRIRA, it did not delegate to the Execu
tive authority to do so. Action on motions to reopen, made
discretionary by the Attorney General only, therefore
remain subject to judicial review.
* * *
For the reasons stated, the judgment of the United
States Court of Appeals for the Seventh Circuit is re
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 558 U. S. ____ (2010) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–911
_________________
AGRON KUCANA, PETITIONER v. ERIC H. HOLDER,
JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[January 20, 2010]
JUSTICE ALITO, concurring in the judgment.
I agree that the Court of Appeals had jurisdiction to
review the denial of petitioner’s motion to reopen his
removal proceeding, but I would decide this case on nar
rower grounds. The controlling statutory provision, 8
U. S. C. §1252(a)(2)(B)(ii), states that “no court shall have
jurisdiction to review . . . any . . . decision . . . of the Attor
ney General . . . the authority for which is specified under
this subchapter to be in the discretion of the Attorney
General.” (Emphasis added.) The phrase “under this
subchapter” refers to Subchapter II of Chapter 12 of Title
8, 8 U. S. C. §§1151–1381, see ante, at 3, n. 3, and, as the
Court notes, no provision of Subchapter II confers discre
tionary authority on the Attorney General to decide mo
tions to reopen. See ante, at 7–8, 14–15. The Court of
Appeals, however, held that the Attorney General’s deci
sion in this case was unreviewable because a regulation, 8
CFR §1003.2(a) (2009), made that decision discretionary.
If this regulation had been promulgated pursuant to
authority conferred by a provision of Subchapter II, we
would have to confront the question that the opinion of the
Court addresses. But it seems clear that 8 CFR §1003.2,
at least insofar as it gave the Attorney General the discre
tionary authority that he exercised in this case, is
grounded on authority conferred under Subchapter I of
2 KUCANA v. HOLDER
ALITO, J., concurring in judgment
Chapter 12 of Title 8, 8 U. S. C. §§1101–1107. See 8
U. S. C. §1103(a) (1994 ed.) (giving the Attorney General
the authority to “establish such regulations . . . as he
deems necessary for carrying out his authority under
[Chapter 12 of Title 8 of the U. S. Code]”).
The amicus curiae whom we appointed to defend the
decision of the Court of Appeals has attempted to link 8
CFR §1003.2 to Subchapter II. She notes that the Attor
ney General, in promulgating that regulation, cited not
only 8 U. S. C. §1103(a), but also a provision of Subchapter
II, 8 U. S. C. §1252b (1994 ed.). See 61 Fed. Reg. 18900,
18904 (1996).1 This latter statutory provision2 conferred
the authority to reopen a narrow set of deportation orders,
i.e., those issued after the alien failed to appear at the
deportation hearing. Although this statutory provision
——————
1 Two other provisions in Subchapter II refer to motions to reopen,
but both were enacted after the implementation of 8 CFR §1003.2(2009), and therefore that regulation cannot be said to implement these
provisions. See ante 7, n. 9. Title 8 U. S. C. §1229a(c)(7), which ad
dresses the procedural requirements for filing such a motion, and
§1252(b)(6), which requires consolidation of a motion to reopen with the
underlying removal order, were enacted as part of the Illegal Immigra
tion Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in
September 1996 and made effective in April 1997. See 110 Stat. 3009–
593, 3009–609. Prior to that time, the consolidation provision was
found in Subchapter I. See 8 U. S. C. §1105(a)(6) (1994 ed.).
2 This provision conferred the authority to rescind a deportation order
“upon a motion to reopen filed within 180 days after the date of the
order of deportation if the alien demonstrates that the failure to appear
was because of exceptional circumstances . . . or upon a motion to
reopen filed at any time if the alien demonstrates that the alien did not
receive notice . . . or the alien demonstrates that the alien was in
Federal or State custody and did not appear through no fault of the
alien.” 8 U. S. C. §1252b(c)(3) (1994 ed.).
A similar provision, enacted as part of IIRIRA, is now contained in 8
U. S. C. §1229a(b)(5)(C) (2006 ed.). As the Government notes, this
provision does not apply in this case because petitioner challenges the
denial of his second motion to reopen, which the parties agree is gov
erned by §1229a(c)(7). Brief for Respondent 21, n. 13; id., at 6, n. 4.
Cite as: 558 U. S. ____ (2010) 3
ALITO, J., concurring in judgment
does not apply to petitioner’s motion to reopen, amicus
argues that “the section’s brief allusion to motions to
reopen clearly presupposed that the Attorney General had
in place a more general procedure for reviewing all mo
tions to reopen removal proceedings.” Brief for Court-
Appointed Amicus Curiae in Support of Judgment Below
41–42.
Amicus’ argument is ingenious but ultimately unper
suasive. At most, 8 U. S. C. §1252b (1994 ed.) may be read
as implicitly authorizing the promulgation of a regulation
giving the Attorney General the discretion to reopen cer
tain deportation orders that were issued in absentia.
Petitioner’s second motion to reopen, however, seeks re
opening on grounds outside of §1252b, and therefore 8
CFR §1003.2, insofar as it applies to petitioner’s case, was
not issued pursuant to Subchapter II and does not imple
ment any provision of that Subchapter.
For these reasons, this case can and should be decided
on the narrow ground that, even if some regulations can
render a decision of the Attorney General unreviewable,
the regulation at issue in this case does not have that
effect.