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BIA Standards in Deportation Cases are No Better than Rolling Dice, says Supreme Court

657696_55005379_01072012.jpgThe U.S. Supreme Court issued an historic rebuke to the Board of Immigration Appeals (BIA) last week over standards the BIA applies in certain deportation proceedings. Justice Elena Kagan, writing for a unanimous court in Judulang v. Holder, held that the standards make no sense: “We must reverse an agency policy when we cannot discern a reason for it.” The ruling confirms something immigration lawyers have known for years, and hopefully it will cause the BIA to apply more consistent standards in the future.

At issue was the applicability of a type of waiver that “excludable” immigrants could request from the Attorney General. “Excludability” or “inadmissibility,” briefly stated, refers to an immigrant found to have never had legal status to enter the U.S., while deportability describes an immigrant whose legal immigration status is stripped by a court. The Immigration and Nationality Act (INA) sets out separate, sometimes overlapping, grounds for excludability and deportability.

Joel Judulang appealed his deportation order after the BIA held that he was not entitled to a waiver. He had come to the United States from the Phillipines as a child in 1974, and has resided here since then. He was charged as an accessory to a homicide and pleaded guilty to manslaughter in 1988. He later pleaded guilty to a theft-related crime in 2005, at which time the Department of Homeland Security (DHS) began deportation proceedings. DHS argued that the manslaughter conviction made Judulang deportable, as it fit the definition of an “aggravated felony” involving a “crime of violence.” The immigration court ordered him deported, and the BIA affirmed.

Judulang argued that he should qualify for a waiver under section 212(c) of the Immigration and Nationality Act. That section allowed people found to be excludable to request a waiver from the Attorney General. The BIA is an agency of the U.S. Department of Justice and is empowered to make or review decisions on granting 212(c) relief. The BIA has held for years that 212(c) also applies in deportation cases. Congress repealed 212(c) in 1996, but it still applies in cases, like this one, where the criminal offense leading to deportation occurred before 1996. The BIA has long applied a standard it calls “comparable grounds,” meaning that a deportable immigrant may only qualify for 212(c) relief if their particular ground for deportation has a similar counterpart in the list of grounds for excludablity. This is the standard challenged by Judulang and addressed by the Supreme Court.

The Supreme Court reversed the BIA’s ruling and remanded the case, holding that its method of applying 212(c) in deportation cases is “arbitrary and capricious.” The BIA’s decision rested on the fact that the list of crimes included in the two different “crime of violence” statutes did not match up precisely. Making the determination based on whether the two statutes happen to match up, Justice Kagan wrote, is irrelevant to the issue of whether the immigrant is actually fit to remain in the country. The Supreme Court therefore reversed the deportation order, calling the outcome of Judulang’s case no more than a “sport of chance.”

The New Jersey immigration lawyers at Samuel C. Berger, P.C. help immigrants seeking visas to come to, or remain in, the United States. To schedule a consultation with one of our skilled attorneys today, contact us online or at (212) 380-8117.

Web Resources:

Opinion of the Court (PDF), Judulang v. Holder, 565 U.S. _____ (2011), December 12, 2011
More Blog Posts:

Police, Prosecutors Advocate for Lebanese Immigrant Who Helped Crack a Murder Case, New York & New Jersey Immigration Lawyer Blog, January 5, 2011
Federal Officials Launch Immigration Scam Education Campaign, New York & New Jersey Immigration Lawyer Blog, December 22, 2011
Controversial Arizona Immigration Law is Supreme Court-Bound, New York & New Jersey Immigration Lawyer Blog, December 20, 2011
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