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Matthew Kolken on Deportation And Removal

Kucana v. Holder (08-911)

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On November 10, 2009, the United States Supreme Court is set to hear oral arguments on a case that arose from the United States Court of Appeals for the Seventh Circuit, Kucana v. Holder (08-911).

The case involves, Kucana, an immigrant from Albania, who applied for asylum but overslept his hearing, which resulted in him being ordered removed in absentia by the Immigration Judge. Kucana then filed a motion with the Court requesting that it reopen his proceeding and vacate the removal order.  His motion was denied, and the Board of Immigration Appeals affirmed the IJ's decision. 

A second motion to reopen was then filed with an affidavit from a professor of Balkan history, who stated that there was a reasonable fear of future political persecution in Albania. The second motion was also denied partially on the basis that conditions in Albania had improved since the filing of the 1997 asylum application.

Kucana appealed to the Seventh Circuit Court of Appeals to review the Board's ruling, but the 7th ruled that the Court lacked jurisdiction to review the Board's decision in this case.

The U.S. Supreme Court granted certiorari in order to clarify whether a court has jurisdiction to review a decision by the Board of Immigration Appeals to reopen an alien's immigration proceeding under 8 U.S.C. 1252(a)(2)(B)(ii).

The question presented is whether Judicial review of an immigrant's legal claim is set forth in 8 U.S.C. 1252(a)(2)(B)(ii), which limits judicial review of discretionary denials by the Attorney General or the Secretary of Homeland Security, and in what situation does a Federal Appeals Court have jurisdiction to review an immigrant's petition to reopen an immigration proceeding that was based on a discretionary denial.

More specifically,the Court will address whether the Attorney General's discretionary authority is "specified" under 8 U.S.C. 1252(a)(2)(B)(ii) and includes a decision of the Board of Immigration to deny an alien's motion to reopen an immigration proceeding.

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