Kucana v. Holder (2009)
- Docket
- 08-911
- Decided
- 2009-01-01
Summary
Question: Does 8 U.S.C. § 1252(a)(2)(B)(ii) bar judicial review for both administrative decisions made discretionary by statute and those made discretionary by regulation? Conclusion: No. The Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii)'s proscription of judicial review applies only to determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation. With Justice Ruth Bader Ginsburg writing for the majority and joined by Chief Justice John G. Roberts and Justices John Paul Stevens, Antonin G. Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer, and Sonia Sotamayor, the Court reasoned that policy, the statute's language, and its history all indicate that § 1252(a)(2)(B)(ii) does not bar judicial review for administrative decisions made discretionary by regulation. At the heart of the Court's concern was preserving the separation of powers and avoiding a scenario where an Executive Branch order could preclude Judicial Branch review over a matter. Justice Samuel A. Alito filed a separate opinion, concurring in the judgment. He agreed that the Seventh Circuit had jurisdiction to review the denial of Mr. Kucana's petition to reopen his removal proceeding. However, Justice Alito argued for a narrower holding. He stated that while some regulations issued by the Attorney General may be unreviewable, the regulation at issue in this case did not have that effect.