• Supreme Court Decides Judulang v. Holder
  • December 13, 2011 | Authors: Aaron D. Van Oort; Marie E. Williams
  • Law Firms: Faegre Baker Daniels - Minneapolis Office ; Faegre Baker Daniels - Denver Office
  • On December 12, the Supreme Court decided Judulang v. Holder, No. 10-694, holding that the Board of Immigration Appeals' comparable-grounds policy for applying § 212(c) of the Immigration and Nationality Act in deportation cases is arbitrary and capricious.

    Until its repeal in 1996, § 212(c) of the Immigration and Nationality Act gave the Attorney General discretion to admit into the United States certain excludable aliens, unless the alien was excludable on one of two specified grounds. This statutory section did not, by its terms, apply when an alien was being deported, but the Board of Immigration Appeals (BIA) adopted a policy of allowing aliens in deportation proceedings to apply for § 212(c) discretionary relief whenever they had left and reentered the country after becoming deportable. The BIA later modified its policy so that § 212(c) was applied in deportation proceedings, regardless of an alien's travel history. Although § 212(c) was repealed in 1996, the Court decided in 2001 that § 212(c) must remain available to an alien whose removal is based on a guilty plea entered before that section's repeal.

    When the BIA decides whether to exclude an alien from admission into the United States, the application of § 212(c) is relatively straightforward. The application of § 212(c) to deportation proceedings, however, is not so clear. As relevant in this case, the BIA sometimes applied the so-called "comparable-grounds" rule. That approach evaluates whether the ground for deportation has a close analogue in § 212(c)'s list of exclusion grounds. If the deportation ground consists of a set of crimes substantially equivalent to the set of offenses making up an exclusion ground, then the alien can seek § 212(c) relief. If the deportation charge covers significantly different, more, or fewer offenses than any exclusion ground, however, the alien is not eligible for discretionary relief.

    The Supreme Court found this policy to be arbitrary and capricious under the Administrative Procedure Act. "By hinging a deportable alien's eligibility for discretionary relief on the chance correspondence between statutory categories - a matter irrelevant to the alien's fitness to reside in this country - the BIA has failed to exercise its discretion in a reasoned manner." The Court specifically declined to decide whether the standards for discretionary relief for excludable and deportable aliens must be the same, but noted that if the BIA is going to narrow the scope of relief in deportation cases, it must do so in some rational way. Because the method employed by the BIA bears no relation to the purposes of the immigration laws or the appropriate operation of the immigration system, it is arbitrary and capricious.

    Justice Kagan delivered the opinion for a unanimous Court.