Supremes Hear Case Hinging on Immigrants' Right to Get Cases Reviewed in Fed Courts

Last week, the Supreme Court heard arguments in a case that involves an important safeguard for immigrants facing removal from the United States—access to federal court review. The case, Kucana v. Holder, was brought by an asylum seeker from Albania. Mr. Kucana is seeking court review of a government decision depriving him of the opportunity to present his asylum claim. The Seventh Circuit Court of Appeals (based in Chicago) refused to review the government’s decision. Instead, the Seventh Circuit found that in his case, the government has unfettered discretion over a potentially life and death decision. The Supreme Court now is considering whether the Seventh Circuit was right.


Although the Supreme Court ultimately may decide Mr. Kucana’s case on a technical reading of a law, his case serves as an important reminder about the importance of federal court review over immigration cases. Court review provides necessary oversight of government decision-making – review which is essential in immigration cases given that removal can mean permanent separation form family in the U.S. or being returned to a country where a person fears for his/her life.

In some cases, the government misinterprets or misapplies the law or makes other mistakes. This is particularly true given the high volume of cases heard before the immigration agency. Last year, about 230 immigration judges decided approximately 339,000 cases. As a TRAC report points out:

In a single week … the typical judge was scheduled to preside over 69 hearings, … higher than it has been in any recent year. While the judge’s hearings often involve … matters that are dealt with quickly, many others are extremely time consuming: analogous to actual trials …

To make matters worse, the majority of immigrants do not have lawyers to ensure a fair proceeding. Although individuals facing deportation can appeal an immigration judge’s decision to an administrative appeal board (the Board of Immigration Appeals or BIA), the BIA’s case load also is staggering. Fewer than the authorized fifteen BIA members decided just over 38,000 appeals in 2008. These appeals often involve factually complex issues about conditions in other countries and require BIA members to address complicated legal issues in an area of law that constantly changes.

Federal court review adds an important layer of protection—courts can catch inadvertent government mistakes and help ensure that the government is properly interpreting and applying the immigration laws. Even the government acknowledges the importance of federal court review. In Kucana, the government refused to defend the Seventh Circuit’s decision. And, at argument before the Supreme Court, the government lawyer, acknowledging the BIA’s heavy caseload, told the Justices, “I think that the courts have long served a very important check on the Board’s authority and on the Board’s exercise [of its authority].”

Admittedly, the courts find that the government decision was correct and uphold the decision in most cases. Each year, however, the federal courts reverse hundreds of immigration decisions. This means that hundreds of people are not unlawfully separated from their family and homes and not unlawfully returned to countries where they may face persecution. As the Supreme Court deliberates over Mr. Kucana’s case, however, it should be mindful of the integral role federal courts play in the removal process.

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