Immigration · Primary-source case analysis

Kucana: Regulations Cannot Eliminate Judicial Review of Reopening Decisions

By Aneeta Mishra and Timothy Chan

Published May 2, 2026

Kucana v. Holder preserves court-of-appeals review of the Board of Immigration Appeals' denial of a motion to reopen when the asserted discretion arises from regulation rather than the statute itself.

The Board denied reopening

Kucana sought to reopen removal proceedings after an unsuccessful asylum application. The Board denied relief, and the Seventh Circuit treated the denial as an unreviewable discretionary determination.

The review bar turns on statutory specification

The relevant INA provision removes jurisdiction over decisions or actions whose discretionary character is specified under the statutory subchapter. The Court held that this wording refers to discretion specified by Congress in the statute, not discretion declared only by the Attorney General through regulation.

Reopening decisions remain reviewable

Because the authority to grant or deny a motion to reopen was designated discretionary by regulation, the jurisdictional bar did not apply. Courts may review such denials under the deferential abuse-of-discretion standard, subject to other jurisdictional limits.

The holding preserves institutional roles

The Court declined to let the Executive determine the scope of federal-court jurisdiction simply by labeling additional actions discretionary in regulations. It also recognized the longstanding judicial role in reviewing reopening decisions.

Key takeaways

• Locate the source of the claimed discretion—statute or regulation.
• Preserve legal and procedural objections in the motion to reopen.
• Expect deferential review rather than de novo factfinding.
• Analyze other jurisdictional restrictions independently.