The opinion
LAWSON, District Judge,
concurring in part and concurring in the judgment:
I concur in the majority’s decision to deny the petition and in most of its reasoning. I part company, however, with my colleagues’ conclusion that we have no jurisdiction to review the Board of Immigration Appeals’ (BIA) denial of the petitioner’s motion to accept an untimely brief. The majority’s holding amounts to an extension of circuit precedent laid down in Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002), and Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir.2009), both of which, in turn, took their core premise from Heckler v. Chaney, 470 U.S. 821 , 105 *529 S.Ct. 1649 , 84 L.Ed.2d 714 (1985). In Heckler , the Supreme Court held that when Congress commits to an agency discretionary authority to perform an act without prescribing meaningful governing standards, that exercise of discretion is placed beyond judicial review by section 701(a)(2) of the Administrative Procedures Act (APA). Id. at 830 , 105 S.Ct. 1649 ; see 5 U.S.C. § 701 (a)(2) (authorizing judicial review of final agency action “except to the extent that ... agency action is committed to agency discretion by law”). I believe that Ekimian and Diaz-Covarrubias misread Heckler by applying it to agency decisions made discretionary by regulation, that is, by the agency itself, effectively permitting the agency to insulate its own decisions from judicial review. In Kucana v. Holder, — U.S. —, 130 S.Ct. 827 , — L.Ed.2d — (2010), the Supreme Court concluded that such a scheme contravenes the “presumption ... ‘that executive determinations are generally subject to judicial review,’ ” 130 S.Ct. at 840 (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 , 115 S.Ct. 2227 , 132 L.Ed.2d 375 (1995)), “the longstanding exercise of judicial review of administrative rulings [on procedural matters],” id. at 831, and the “congressional design” that “[Congress], and only [Congress], would limit the federal courts’ jurisdiction,” id. at 840. Consequently, I would not extend Ekimian’s and DiazCovarrubias’s holdings to bar review of other agency actions — such as the decision whether to accept a late brief — that are based on authority made discretionary by the agency itself. I would find, however, that the BIA did not abuse its discretion in refusing the petitioner’s late brief in this case.
I.
Heckler v. Chaney was a case in which the Court was called upon to decide the extent to which Congress restricted federal court jurisdiction to review actions by administrative agencies under the APA. There, the Court rejected a claim by several death row inmates who sought a mandatory injunction to compel the Food and Drug Administration to enforce provisions of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., (FDCA) against officials in states that had adopted the lethal injection method for carrying out a death sentence. The inmates argued that the FDCA prohibited off-label use of drugs, and that the drugs chosen by the states could not be used for that purpose until the FDA approved the drugs as “safe and effective” for human execution. Id. at 827 , 105 S.Ct. 1649 .
The Court held that the FDA’s decision not to institute enforcement action was shielded from judicial review by section 701(a)(2) of the APA. In reaching that conclusion, the Court noted the tension between section 701(a)(2), which bars review of actions “committed to agency discretion,” and section 706(2)(A), which authorizes judicial review to determine whether the agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 (2)(A). In construing section 701(a)(2), the Court cited Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977), which characterized that statutory bar to judicial review as “a very narrow exception.” 401 U.S. at 410 , 91 S.Ct. 814 . The Overton Park Court explained, “The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law *530 to apply.’” Ibid, (citing S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)).
The Heckler Court found that the exception to judicial review in section 701(a)(2) was categorically distinct from the exception in section 701(a)(1), which bars review when “statutes preclude judicial review.” 5 U.S.C. § 701 (a)(1). The Court explained:
[Section 701(a)(1)] applies when Congress has expressed an intent to preclude judicial review.[Section 702(a)(2) ] applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.” In addition, this construction satisfies the principle of statutory construction mentioned earlier, by identifying a separate class of cases to which § 701(a)(2) applies.
Heckler, 470 U.S. at 830 , 105 S.Ct. 1649 . The Court ultimately concluded:
The general exception to reviewability provided by § 701(a)(2) for action “committed to agency discretion” remains a narrow one ..., but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise. In so holding, we essentially leave to Congress, and not to the courts, the decision as to whether an agency’s refusal to institute proceedings should be judicially reviewable.
Id. at 838, 105 S.Ct. 1649 .
In Heckler , the Court determined that Congress can restrict the jurisdiction of federal courts over certain agency actions under the APA by deeming them “discretionary” and drafting “statutes” that provide a court “no meaningful standard against which to judge the agency’s exercise of discretion.” Id. at 830 , 105 S.Ct. 1649 . It does not support a conclusion that an agency can strip a court of jurisdiction to review its own actions by enacting regulations that deem these actions discretionary. Recognizing such authority would fundamentally alter the constitutional checks and balances put in place by the separation of powers doctrine.
That point was made clear by the Court’s recent decision in Kucana v. Holder, 130 S.Ct. 827 . In that case, the Court construed the jurisdiction-stripping provision in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009 -546. That provision was found in 8 U.S.C. § 1252 (a) (2) (B) (ii), which states that no court shall have jurisdiction to review any action of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General.” The Seventh Circuit found this statute to bar review of a decision by the BIA denying the petitioner’s late motion to reopen removal proceedings because the Attorney General had made such decisions discretionary by regulation. The Court noted that Congress had not codified the provision in the regulation making such decisions discretionary. The Court read the phrase “specified under this subchapter” in section 1252(a)(2)(B)(ii) to mean that “Congress barred court review of discretionary decisions only when Congress itself set out the Attorney Gen *531 eral’s discretionary authority in the statute.” Kucana, 130 S.Ct. at 829 .
With respect to motions to reopen, the Court concluded that Congress intended judicial review to be as broad as it was before the IIRIRA was enacted: “The BIA has broad discretion, conferred by the Attorney General, ‘to grant or deny a motion to reopen,’ 8 CFR § 1003.2 (a), but courts retain jurisdiction to review, with due respect, the Board’s decision.” 130 S.Ct. at 829 . The Court characterized decisions on motions to reopen as “adjunct rulings,” which remain subject to judicial review. Id. at 829-30 . “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.” Ibid. Decisions to allow the filing of a late brief fall squarely within this category; they are deemed discretionary by the agency, see 8 C.F.R. § 1003.3 (c)(1), but Congress has not placed them beyond the scope of judicial review.
The Court’s holding in Kucana was clear: “While Congress pared back judicial review in IIRIRA, it did not delegate to the Executive authority to do so.” 130 S.Ctat 840. Were it otherwise, “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.’ ” Id. at 839 . That result would upset the “congressional design” in which “Congress ensured that it, and only it, would limit the federal courts’ jurisdiction.” Ibid.
II.
In Ekimian v. INS, the court quoted language recited above from Heckler v. Chaney interpreting section 701(a)(2) and concluded that “[t]he text of [8 C.F.R.] § 3.2(a) [ (now codified at 8 C.F.R. § 1003.2 (a)) ] does not provide a standard controlling or directing the BIA’s decision whether to reopen, and similarly provides no standard for reviewing the BIA’s decision.” 303 F.3d at 1157-58 . • The court in Diaz-Covarrubias quoted the same passage from Heckler and concluded that “the BIA has not set forth any meaningful standard for exercising its discretion to implement an administrative closure.” 551 F.3d at 1118 . Both courts then held that the lack of meaningful standards set out in the regulations, or otherwise described in its own decisions, stripped federal courts of jurisdiction to review the agency decisions to deny an untimely motion to reopen and to implement an administrative closure.
I believe these decisions misapply Heckler for several reasons. First, the Court in Heckler was construing a section of the APA in which Congress barred judicial review under very “narrow” circumstances not present in the context of reviewing BIA decisions. The jurisdictional bar required two legislative acts: (1) Congress barred judicial review of those administrative decisions made discretionary “by law” in the APA; and (2) Congress had to enact the “law” that delegated authority to the agency to act in its sole discretion. Second, the bar set forth in 5 U.S.C. § 701 (a)(2) to discretionary decisions by an agency applies only “if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler, 470 U.S. at 830 , 105 S.Ct. 1649 (emphasis added). There is no statute that commits to agency discretion the decision whether to accept late briefs. Third, neither Heckler nor any other Supreme Court precedent supports the proposition that the absence of review standards in a regulation enacted by an agency renders that agency’s *532 action under that regulation unreviewable. If it were otherwise, the agency could determine the scope of federal court jurisdiction to review its actions by the mere expedient of omitting review standards from its own regulations. Finally, reading Heckler to strip federal courts of jurisdiction to review decisions deemed discretionary by the agency itself collides with “the presumption favoring judicial review of administrative action.” Kucana, 130 S.Ct. at 839 .
Because Ekimian and Diaz-Covarmbias misapply Heckler , I would not extend that circuit precedent to the present case. 1 Doing so would condone a scheme in which the Executive Branch would have the power to limit the jurisdiction of the federal courts. However, under the separation of powers doctrine, only Congress can expand or contract the subject-matter jurisdiction of a lower Article III court. See Kontrick v. Ryan, 540 U.S. 443, 452 , 124 S.Ct. 906 , 157 L.Ed.2d 867 (2004). That principle is rooted in the text of the Constitution, which vests the judicial power in the Supreme Court “and in such inferior Courts as the Congress may from time to time ordain and establish,” U.S. Const, art *533 III, § 1, and which gives to Congress the power “[t]o constitute Tribunals inferior to the supreme Court,” U.S. Const, art I, § 8, cl. 9. See Keene Corp. v. United States, 508 U.S. 200, 207 , 113 S.Ct. 2035 , 124 L.Ed.2d 118 (1993) (“Congress has the constitutional authority to define the jurisdiction of the lower federal courts.”). Congress may alter federal court jurisdiction through legislation, but to do so it must satisfy the requirements of bicameralism and presentment. See INS v. Chadha, 462 U.S. 919, 957-58 , 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983).
Although Congress may delegate certain legislative powers to administrative agencies, Mistretta v. United States, 488 U.S. 361, 373-74 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989), “[t]he rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law,” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213 , 96 S.Ct. 1375 , 47 L.Ed.2d 668 (1976). Since the agency cannot make law, it cannot restrict judicial review of its actions through its own regulations. See Gladysz v. Donovan, 595 F.Supp. 50 (N.D.Ill.1984) (invalidating the Secretary of Labor’s regulations foreclosing judicial review of the agency action because “[gjiven the absence of legislative intent to foreclose judicial review, the Secretary cannot unilaterally ‘make law,’ ... and prevent judicial review of his own decisions”); of. Chadha, 462 U.S. at 942 n. 13, 103 S.Ct. 2764 (“The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review.”).
The separation of powers doctrine prevents the Executive from unilaterally isolating his actions from judicial review. See Morrison v. Olson, 487 U.S. 654 , 693 n. 33, 108 S.Ct. 2597 , 101 L.Ed.2d 569 (1988) (stating that the purpose of judicial review of the actions of the Executive is to ensure that he executes the law in accordance with the will of Congress as expressed under the statute). “[I]t is the rule, not the exception, that executive actions — including those taken at the immediate direction of the President — are subject to judicial review.” Nixon v. Fitzgerald, 457 U.S. 731, 781 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982). If the actions of the Executive are to be immunized from judicial review, it must be done by the legislative branch clearly expressing its intent to do so. Bowen v. Mich. Acad, of Family Physicians, 476 U.S. 667, 680-81 , 106 S.Ct. 2133 , 90 L.Ed.2d 623 (1986).
III.
In this case, the BIA’s discretionary authority to accept a late brief is set out in a regulation, not a statute. The regulation, 8 C.F.R. § 1003.3 (c)(1), states, “In its discretion, the Board may consider a brief that has been filed out of time.” No statute confers this discretionary authority on the BIA, only the regulation itself. Consequently, the reasoning of Heckler , which is limited to congressional grants of discretion, does not extend to this regulation, nor does it insulate decisions made thereunder from judicial review.
Moreover, despite the lack of standards set out in the regulation, determining whether the BIA abused its discretion when denying the petitioner’s motion to file a late brief is not a difficult task. The BIA’s denial is the type of ruling that district courts regularly make, and which are routinely reviewed by this court. As we observed recently, “[tjhere are countless types of district court rulings that we review for abuse of discretion.” United States v. Whitehead, 532 F.3d 991, 995 (9th Cir.2008). “When a district court makes a discretionary decision, we will affirm so long as the decision is within the range of permissible decisions that the court could *534 have made given the law and the facts confronting it.” United States v. Mancinas-Flores, 588 F.3d 677, 684 (9th Cir. 2009).
Like motions to reopen, decisions on whether to allow a late brief are “adjunct rulings,” which the Supreme Court described as “a procedural device serving to ensure ‘that aliens are getting a fair chance to have their claims heard.’ ” Encana, 130 S.Ct. at 837 (internal quotation marks and alterations omitted). The decision denying leave to file a brief out of time, therefore, requires consideration of the reasons the brief was not filed on time, the ability of the movant to present his case to the BIA if the brief is not considered, the BIA’s need to enforce its own procedural rules and control its docket, and possible prejudice to other parties. In many ways, review of the decision tracks the same considerations discussed by the majority in determining that the petitioner was not deprived of procedural due process when his late brief was not accepted. I am satisfied that the BIA did not abuse its discretion by rejecting the late brief in this case because the petitioner was aware of the deadline, the BIA extended it once on its own motion, the petitioner’s issues were set out adequately in his notice of appeal to permit meaningful review, and the delay was attributable solely to the petitioner and not to an outside agency.
TV.
The BIA’s authority to accept late briefs plainly is committed to its discretion by 8 C.F.R. § 1003.3 (c)(1). There is no act of Congress that restricts the jurisdiction of the circuit courts from reviewing decisions under this regulation. Supreme Court precedent does not support the proposition that an agency in the Executive Branch can regulate the jurisdiction of the federal courts, nor does it provide support for the idea that judicial review is barred as a result of .the absence of governing standards in the regulation. I would hold, therefore, that we have jurisdiction to review, with due respect, the BIA’s decision not to accept the petitioner’s late brief. I also would conclude that the BIA did not abuse its discretion. Therefore, I concur in the majority’s opinion except for section III(A)(i), and in the judgment denying the petition.
. The majority notes that the Supreme Court in Kucana specifically expressed no opinion on whether federal courts could review BIA refusals to reopen sua sponte, and therefore Ekimian remains good law. See maj. op. at 523 n.4 (citing Kucana, 130 S.Ct. at 839 n.18). The majority correctly cites the footnote in Kucana , but I respectfully suggest that its conclusion does not follow. Ekimian relies exclusively on Heckler for its doctrinal premise that the absence of meaningful standards to guide an agency’s discretion deprives the courts of jurisdiction to review agency decisions. The Ekimian court applied Heckler by stating: "The text of § 3.2(a) does not provide a standard controlling or directing the BIA's decision whether to reopen, and similarly provides no standard for reviewing the BIA’s decision.” Ekimian, 303 F.3d at 1157 -58 (citing 8 C.F.R. § 3.2 (a)). This obvious reference to a discretion-conferring regulation as the premise for application of Heckler's rule, which requires congressional action, undermines Ekimian’s continuing validity in light of the Supreme Court's clear statement that when enacting the INA, "Congress ensured that it, and only it, would limit the federal courts' jurisdiction.” Kucana, 130 S.Ct. at 839 . There is no statute that speaks to the BIA’s authority to reopen proceedings sua sponte.
The majority of cases finding no jurisdiction to review denials of motions to reopen sua sponte on account of Heckler do so on the basis of standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245 , 246 (4th Cir.2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Ekimian, 303 F.3d at 1159 ; Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). The only two cases that cite a statute in concluding that such decisions are unreviewable point to 8 U.S.C. § 1103 (g)(2), which generally authorizes "[t]he Attorney General [to] establish such regulations ... as the Attorney General determines to be necessary for carrying out this section.” See Tame-nut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir.2008) (en banc) (per curiam) ("The regulation establishing the BIA's authority to reopen sua sponte was promulgated pursuant to a general grant of regulatory authority that sets no standards for this decision. See 8 U.S.C. § 1103 (g).”); Lenis v. U.S. Attorney Gen., 525 F.3d 1291, 1293 (11th Cir.2008) ("[N]o statute expressly authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue derives from a statute that grants general authority over immigration and nationalization matters to the Attorney General, and sets no standard for the Attorney General’s decision-making in this context. See 8 U.S.C. § 1103 (g)(2).”). Under that rationale, however, any agency decision made under a regulation in which the agency grants itself discretion to act would be beyond judicial review where Congress granted general authority to the agency to make rules, which is to say, in virtually every case. That result directly contradicts Kucana’s central holding.