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People's Law Guide


What does the recent Supreme Court decision in Kucana mean to you?

Steven Goldstein


Since the Supreme Court issued its decision in Kucana v. Holder, 558 U. S. ____ (2010) on January 20th of this year, rumors about the decision have been rampant. A couple of well-known attorneys have explained the significance of the decision in the media in very imaginative ways. The media then turned this analysis into news and so the snowball of expectations keeps growing. While most United States Supreme Court decisions tend to be relatively long and discuss the law in a very analytical or academic manner, it is important for you to understand the main holding in the case.

In Kucana, the Supreme Court held that the United States Courts are barred from reviewing discretionary decisions related to sections of the Immigration and Nationality Act where the discretion is based on statutory authority. The issue here was related to the regulatory exercise of discretion in motions to reopen removal, deportation, or exclusion proceedings.

Before you contact the Immigration Court that handled your case, the Board of Immigration Appeals, or the Department of Homeland Security, you must first BE AWARE that you are exposing yourself to the very realistic possibility that Immigration and Customs Enforcement will try to enforce the order entered against you - even if you are right.

The Kucana decision principally deals with the authority (a simpler way of saying jurisdiction) of United States Courts of Appeals, the courts before which one files a petition for review of decisions of the Board of Immigration Appeals. Within that limited scope, this case specifically deals with whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) bans any United States Court from reviewing the discretionary decision of the Attorney General authorized in certain statutes.

Two things are especially important with respect to this case: The first is that a Federal statute is a law passed by the Congress and signed by the President of the United States. Regulations are rules created by the Executive Branch to enforce these statutes. The second thing you need to remember is that Immigration Courts and the Board of Immigration Appeals are part of an agency within the Department of Justice, that is, the Attorney General. How a case is decided in a United States Court is different than how a case is decided by agencies in the Executive Branch. United States Courts give great deference to decisions of Federal agencies in enforcing the decisions delegated to them by Congress through statutes.

If you have survived this discussion so far, you realize that Kucana is a limited legal decision. The Supreme Court remanded or returned the case to the Seventh Circuit Court of Appeals to act according to the instructions in its opinion. An opinion in the legal sense is an explanation of a court's decision. What could this mean for you? The bottom line is that we DO NOT know how the Department of Justice will implement this seemingly technical decision.

If you are in a situation where you are about to file a petition for review, have one pending with a court of appeal, or may have had one denied based on this issue, you may want to contact your attorney and discuss how this ruling applies to you. If you already have a final order of removal, deportation, or exclusion, understand that this ruling does not change the statutory restrictions on motions to reopen, including the number and timeliness restrictions. It certainly does not address the substance or merits of a motion to reopen proceedings.


Steven A. Goldstein is an attorney in Miami, Florida, provides legal representation throughout the State of Florida in immigration law matters. He represents immigration matters such as deportation defense, family visa petitions, employment visa petitions, motions to reopen and appeals. Steven A. Goldstein's law office phone number is (305) 856-0400

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