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Tuesday, May 28, 2024 | Back issues
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Supreme Court Rules for Albanian Who Overslept

(CN) - An Albanian immigrant who slept through his alarm and missed his final asylum hearing won another shot at fighting his deportation. The U.S. Supreme Court ruled Wednesday that courts can review an immigration board's refusal to reopen his case.

The justices reversed a 7th Circuit decision that the order denying Agron Kucana's motion to reopen his case was non-reviewable.

Kucana said he arrived at his asylum hearing shortly after the immigration judge ordered his removal. He asked the court to reopen his case, explaining that he accidentally slept in, but was denied.

In 2006, he again moved to reopen his case, saying conditions were worse in Albania. The Board of Immigration Appeals (BIA) denied his motion, and the 7th Circuit said it lacked jurisdiction to review the board's decision.

In making that determination, the 7th Circuit relied on a provision of immigration law barring review of administrative decisions placed in the attorney general's "discretion." But it wasn't clear whether the statute referred to only those decisions made discretionary by law, or if it extended to decisions made discretionary by the attorney general himself, through regulations.

Kucana argued that judicial review is broadly applicable to the BIA's decisions.

Writing for the court, Justice Ruth Bader Ginsburg said the law's language refers "to statutory, but not to regulatory, specifications."

And because a regulation -- not a law -- gave the BIA authority to deny Kucana's motion, that decision is subject to judicial review, the justices ruled.

"Had Congress elected to insulate denials of motions to reopen from judicial review, it could have so specified," Ginsburg wrote.

To rule otherwise would give the executive "the free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions 'discretionary,'" she wrote.

The high court reversed and remanded.

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