cf Kucuna

Legal Issue: What is the scope of jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and does this statute remove jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?

Pertinent Law:

8 U.S.C.S. § 1252(a)(2)(B) states that no court shall have jurisdiction to review any action of the U.S. Attorney General the authority for which is specified under the subchapter of the statute to be in the discretion of the Attorney General.

A motion to reopen removal proceedings must state the new facts that will be proven at a hearing to be held if the motion is granted, and must be supported by affidavits or other evidentiary material. 8 U.S.C.S. § 1229a(c)(7)(B). The motion to reopen must 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.

When a statute is reasonably susceptible to divergent interpretation, a court adopts the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. The court applies that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. Because the presumption favoring interpretations of statutes to allow judicial review of administrative action is well-settled, the court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption.