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Matthew Kolken on Deportation And Removal

Transcript of Oral Argument from Kucana v. Holder (Nov. 10, 2009 SCOTUS)

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The Supreme Court of the United States heard arguments yesterday (Nov. 10, 2009) on the issue of whether 8 U.S.C. Section 1252(a)(2)(B)(ii) precludes federal courts from reviewing rulings of the Board of Immigration Appeals relating to motions to reopen.


Factually the case involves a citizen from Albania who overslept his alarm, and missed his immigration court hearing.  As a result, his application for asylum was denied and the IJ ordered his removal in absentia. 


Mr. Kucana filed a motion to reopen the case which was also denied by the Board of Immigration Appeals (BIA) in 2002.  Despite the denial of his appeal Mr. Kucana was not removed from the United States, and four years later, Kucana filed a second motion to reopen citing changed conditions in Albania that warranted reconsideration of his asylum application.


The BIA denied the second motion to reopen again, and Kucana appealed to the Seventh Circuit Court of Appeals. The Seventh Circuit refused to reverse the BIA finding that it did not have jurisdiction to review the BIA's denial of the motion to reopen in disagreement with several other circuits that have found that they do maintain jurisdiction.


Shockingly, the Supreme Court of the United States granted cert in this case.  As they say in the immigration trenches: bad facts make bad law.  I'm crossing my fingers.  Personally, I just don't have a ton of sympathy for someone who overslept his alarm.  I'm sure I'm not alone.


Click here to read the transcript of the oral argument. 


Click here for the SCOTUS Wiki on the case.


Matthew L. Kolken, Esq.

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