WASHINGTON (CN) – An Albanian refugee candidate who slept through his alarm and missed his final asylum hearing managed to get to the U.S. Supreme Court on Tuesday to challenge a law barring the courts from reviewing expulsion orders. The Justice Department changed its tune during the litigation and is now arguing for increased judicial review.
“I find it curious that the Justice Department is before us, arguing that the Justice Department can’t be trusted without judicial review,” Chief Justice John Roberts said.
Agron Kucana said he arrived at the asylum hearing in 1995 shortly after the judge ordered his removal, and the Board of Immigration Appeals denied his motion to reopen the case.
Because oversleeping does not fall into the same category of excuses like battery, serious illness or death that would have legally justified Kucana’s tardiness, the judge’s expulsion order was considered final.
Now, it is a question of whether the courts can go back to reexamine the Board of Immigration Appeals’ expulsion order. Congress amended laws in the 1990s to exempt some immigration orders from judicial review and the 7th Circuit decided that this asylum proceeding is one of those non-reviewable orders.
Both Kucana and the Justice Department argued that judicial review is broadly applicable to the decisions of immigration officials. The amicus appointed by the Court to take the original stance of the Justice Department argued that a much narrower set of immigration decisions can be reviewed by the courts.
The Justice Department changed its stance in 2004.
Rick Schoenfield, with Schoenfield, Schwartzman & Massin, argued on Kucana’s behalf. He said the expulsion sentence could be a matter of life and death for his client and claimed that his client’s case was not part of the category Congress meant to exempt from judicial review in granting the Attorney General discretion.
“In interpreting the scope of Congress’ intent to reduce judicial review, we need to be very careful about that, obviously,” Schoenfeld said.
Justice Antonin Scalia asked Schoenfield how he would determine which cases are subject to review, instead of allowing the Attorney General broad discretion. “The big obstacle I find with your position is that it doesn’t make any sense,” Scalia said. “Why would Congress want one to be subject to judicial review and not the other?”
Assistant Solicitor General Nicole Saharsky also argued for Kucana, saying that in procedural cases like this where it’s a question of whether the immigrant gets a fair shot in terms of the process, then the decision should be reviewable by the courts.
Justice Anthony Kennedy appeared concerned about the burden the courts would have if such cases were allowed for review. “Can you give me an idea of how many motions to reopen are brought to the courts for review each year?” he asked.
Saharsky noted that the six courts that have reviewed the case apart from the seventh circuit have found that the Kucana’s case should be subject to review.
To that, Kennedy asked to laughter, “Have any of those courts said that they don’t have a workload problem?”
Amanda Leiter, from the Columbus School of Law, was appointed by the court to defend the opposing position. She argued that the decision to reject asylum can be reviewed by the courts, but the decision to reopen the matter cannot.
She said Congress limited the federal judiciary’s jurisdiction in reviewing the decisions of immigration officials.
“Do you have any reason why Congress would have taken great trouble to make certain that courts can review asylum decisions, that Congress would not have wanted a court to review a reopening of an asylum matter?” Justice Stephen Breyer asked.
Leiter replied that Congress likely wanted to cut off review at some point.
Justice Ruth Bader Ginsburg appeared critical of the power granted to the Attorney General if some of his decisions were immune from judicial scrutiny. “Congress might well say, ‘Agency, you decide what is in your discretion,’ but not say, ‘We delegate to you, too, the matter whether the court will review your exercise of discretion,'” she said.
Kucana arrived in the United States 15 years ago with a three-month visa, but filed nearly a year later for asylum, citing political unrest and how he was beaten, arrested and threatened for his former involvement in Albanian politics.