U.S. Supreme Court Overturns Deportation Decision For Filipino Man

Judulang v. Holder, 565 U.S. ___ (Dec. 12, 2011): The BIA's "comparable grounds" approach to INA §212(c) waivers is arbitrary and capricious.

Joel Judulang is an LPR who entered the United States in 1974, when he was eight, and has lived here since. In 1988, he received a six-year suspended sentence for voluntary manslaughter after a fight in which another person fatally shot someone. In 2005, after he pleaded guilty to a theft offense, DHS charged him with removability for having been convicted of a crime of violence (manslaughter), and the BIA affirmed. The BIA also ruled that he was ineligible for relief under INA §212(c), 8 U.S.C. §1182(c), relief because there was no comparable ground of excludability to the crime-of-violence deportability ground. The Ninth Circuit upheld the BIA, and the U.S. Supreme Court granted certiorari.

The Supreme Court (Kagan) unanimously reversed. It began by describing the different grounds and available relief for exclusion and deportation proceedings. It then traced the history of the availability of §212(c) relief in deportation cases. Next, the Court explained that the issue was whether the comparable-grounds approach was arbitrary and capricious under 5 U.S.C. §706(2)(A), part of the Administrative Procedure Act. The Court relied on the explanation of the approach in Matter of Brevia, 23 I. & N. Dec. 766 (BIA 2005), and Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005). It concluded that the BIA had based eligibility "on the chance correspondence between statutory categories-a matter irrelevant to the alien's fitness to reside in this country," and so had "flunked" the arbitrary-and-capricious test. Furthermore, the Court observed that "underneath this layer of arbitrariness lies yet another, because the outcome of the Board's comparable-grounds analysis itself may rest on the happenstance of an immigration official's charging decision." The Court drew on its holding in Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947), to denounce making so much depend on the "fortuity" of how an official charges someone. Finally, the Court rejected the government's arguments for the comparable-grounds approach: statutory text, history (which the Court found inconsistent), and efficiency.

Consequently, the Supreme Court remanded for further consistent proceedings. It commented that Judulang was asking the agency to do what it had done for years in exclusion cases. He argued that deportation and exclusion cases must be treated the same way. The Court offered that other approaches also could be good. It declared that it was not precluding the BIA "from trying to devise another, equally economical policy [as comparable-grounds], so long as it comports with everything held in both this decision and St. Cyr."

NOTE: For more on this subject, see Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure §74.04.