Kucana v Holder: Just a Bit Less Court Stripping

This week the Supreme Court issued its opinion in Kucana v Holder. The Court unanimously recognized the right of judicial review in motion to reopen immigration removal decisions. (Justice Alito wrote a separate concurrence) The decision is a victory for immigrant rights, the rule of law and the principle of judicial review.

The decision is also a delusional win of sorts because the case revolved around a provision that was never written into statute. In short, the Court is really just saying the 7th circuit had no business reading discretionary powers that congress never intended.

And I dare say these aspects of the Court’s decision were incidental to the Roberts’ Court commitment to the principle of judicial restraint.  After a broad defense of the principle of judicial review, the opinion really emphasized the notion of judicial deference to congress.

The Court reversed the seventh circuit in part because even the administration wanted it to (almost a case w/o a controversy). In larger part, it reversed because  almost reactionary court stripping provision in the 1996 IIRIRA immigration law forgot to include motions to reopen removal decisions by the BIA. According to the Court, it could not read into Congress’ intent in the absence of specific wording in this IIRIRA provision. Thus, even though AG regulations  subsequently included motions to reopen, the Court refused to read these regulations into the statute.

Of concern is that the Court would likely have reached a different conclusion and permitted court stripping in motions to reopen removal decisions if only congress had included these words back in 1996.  Further, this decisions leaves open the question about the constitutionality of the enumerated court stripping provisions in IIRIRA as well as in AEDPA (1996) and in Real ID.  The larger outcome of jurisdiction stripping in many immigration cases remains on the books. And, immigrants possess no additional rights under the constitution after Kucana.

It is also regrettable that it was incidental to the Court that but for congress’ likely omission in 1996, Mr. Kucana, an Albanian refugee, might well have been returned to an uncertain fate in his homeland. Since the real issue had to do with the Court’s deference to the political branches/ congress, had the IIRIRA included motions to repon in its court stripping provision, Mr. Kucana likely would be back in Albania.

Although the correct decision was made in this case, the Court’s reluctance to include immigration as a constitutional issue keeps immigrants hostage to the whims of poorly scrutinized and often draconian immigration statutes, and an all too deferential court.


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