A motion to reopen is an important safeguard intended to ensure a proper and lawful disposition of immigration proceedings and federal court review of administrative decisions denying motions to reopen removal proceedings dates back to at least 1916. This court has ultimately reviewed reopening decisions on numerous occasions. However, mindful of the BIA’s broad discretion in such matters, however, courts have employed a deferential, abuse-of-discretion standard of review.
Even though it is agreed that the Attorney General’s regulation, 8 CFR §1003.2(a), places the decision to grant or deny a motion to reopen within the discretion of the BIA, 8 USC § 1252(a)(2)(B)(ii) does not codify that prescription, and does not otherwise specify that reopening decisions are “in the discretion of the Attorney General.”
The BIA’s discretionary authority to act on a motion to reopen is “specified” not in a statute, but only in the Attorney General’s regulation, which instructs: “The decision to grant or deny a motion to reopen . . . is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”
The word “under” in the jurisdiction-stripping provision at 8 USC 1252(a)(2)(B)(ii) is chameleon; it has many dictionary definitions and must draw its meaning from its context. Examining, in statutory context, the provision in which the word “under” is embedded, this court concludes that the parties’ position that “specified under this subchapter” means “specified in,” or “specified by,” the subchapter stands on firmer ground.
Both 8 USC §1252(a)(2)(A) and 8 USC §1252(a)(2)(C) depend on statutory provisions, not on any regulation, to define their scope. All the defining references are statutory; none invokes a regulation. Given 8 USC 1252(a)(2)(B)’s statutory placement, sandwiched between subsections (a)(2)(A) and (a)(2)(C), one would expect that it, too, would cover statutory provisions alone.
The proximity of clauses (i) enumeration of administrative judgments that are insulated from judicial review and (ii) a catchall provision covering “any other decision . . . the authority for which is specified under this subchapter,” and the words linking them—“any other decision”—suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. The clause (i) enumeration, this court finds, is instructive in determining the meaning of the clause (ii) catchall. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.
This court finds significant the character of the decisions Congress enumerated in 8 USC §1252(a)(2)(B)(i), thereby insulating them from judicial review. They are substantive decisions made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not. Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind. By contrast, decisions on reopening motions made discretionary by regulation are adjunct rulings: A motion to reopen is a procedural device serving to ensure that aliens are getting a fair chance to have their claims heard. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing.
If Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation along with those made discretionary by statute, moreover, Congress could easily have said so. In other provisions enacted simultaneously with 8 USC §1252(a)(2)(B)(ii), such as 8 U. S. C. §1324c(e)(2) and 8 U. S. C. §1103(a)(10), Congress expressed precisely that meaning. Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.
The history of the relevant statutory provisions corroborates this court’s determination that 8 USC §1252(a)(2)(B)(ii) does not proscribe judicial review of denials of motions to reopen.
Enacting IIRIRA in 1996, Congress transformed the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien. In the same legislation, Congress amended the INA aggressively to expedite removal of aliens lacking a legal basis to remain in the United States. Among IIRIRA’s several proscriptions of judicial review is the one at issue, 8 USC §1252(a)(2)(B)(ii), barring review of administrative decisions Congress placed within the Attorney General’s discretion. Congress thus simultaneously codified the process for filing motions to reopen and acted to bar judicial review of a number of executive decisions regarding removal. But Congress did not codify the regulation delegating to the BIA discretion to grant or deny motions to reopen. Had Congress elected to insulate denials of motions to reopen from judicial review, it could have so specified together with its codification of directions on filing reopening motions. From the Legislature’s silence on the discretion of the Attorney General (or his delegate, the BIA) over reopening motions, this court takes it that Congress left the matter where it was pre-IIRIRA: The BIA has broad discretion, conferred by the Attorney General, to grant or deny a motion to reopen, but courts retain jurisdiction to review, with due respect, the BIA’s decision. It is unsurprising that Congress would leave in place judicial oversight of this important procedural safeguard designed to ensure a proper and lawful disposition of immigration proceedings where the alien’s underlying claim (for asylum) would itself be reviewable. Although adding or reformulating provisions on asylum, protection from removal, even judicial review, the REAL ID Act did not disturb the unbroken line of decisions upholding court review of administrative denials of motions to reopen.
Any lingering doubt about the proper interpretation of 8 U. S. C. §1252(a)(2)(B)(ii) would be dispelled by a familiar principle of statutory construction: the presumption favoring judicial review of administrative action. When a statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. This court has consistently applied 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, this court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption and there is no such evidence in the instant case.
By defining the various jurisdictional bars by reference to other provisions in the INA itself, Congress ensured that it, and only it, would limit the federal courts’ jurisdiction. To read 8 USC §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the Board by regulation, rather than on the Attorney General by statute, would ignore that congressional design. This is a paramount factor in this court’s determination that federal courts have jurisdiction to review BIA’s discretion in denying motions to reopen. If the Seventh Circuit’s construction of 8 USC §1252(a)(2)(B)(ii) were to prevail, the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions “discretionary.” Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.
A statute affecting federal jurisdiction must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes. As this court has noted, many provisions of IIRIRA were aimed at protecting from court review exercises of the Executive’s discretion. But no law pursues its purpose at all costs and the textual limitations upon a law’s scope are no less a part of its purpose than its substantive authorizations. While Congress pared back judicial review in IIRIRA, it did not delegate to the Executive authority to do so. Action on motions to reopen, made discretionary by the Attorney General only, therefore remain subject to judicial review. For the reasons stated, the judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
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