Joel Judulang vs. Eric H. Holder, Jr., Attorney General

Petitioner Joel Judulang is a native of the Philippines who entered the United States in 1974 at the age of eight. Since that time, he has lived continuously in the country as a lawful permanent resident. In 1988, Judulang took part in a fight in which another person shot and killed someone. Judulang was charged as an accessory and eventually pleaded guilty to voluntary manslaughter. He received a 6-year suspended sentence and was released on probation immediately after his plea. In 2005, after Judulang pleaded guilty to another criminal offense (one involving theft), DHS commenced an action to deport him. DHS charged Judulang with having committed an “aggravated felony” involving “a crime of violence,” based on his old manslaughter conviction.

 The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed. As part of its decision, the BIA considered whether Judulang could apply for §212(c) relief. It held that he could not do so because the “crime of violence” deportation ground is not comparable to any exclusion ground, including the one for crimes involving moral turpitude. The Court of Appeals for the Ninth Circuit denied Judulang’s petition for review in reliance on circuit precedent upholding the BIA’s comparable-grounds approach. Supreme Court granted certiorari.

Until repealed in 1996, §212(c) of the Immigration and Nationality Act, 66 Stat. 187, 8 U. S. C. §1182(c) (1994 ed.), authorized the Attorney General to admit certain excludable aliens. The Attorney General could order this relief when the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country, unless the alien was excludable on one of two specified grounds. §1182(c) (1994 ed.). But by its terms, §212(c) did not apply when an alien was being deported.

Congress repealed §212(c) in 1996 and substituted a new discretionary remedy, known as “cancellation of removal,” which is available in a narrow range of circumstances to excludable and deportable aliens alike. But in INS v. St. Cyr, 533 U. S. 289, 326 (2001), the Supreme Court concluded that the broader relief afforded by §212(c) must remain available, on the same terms as before, to an alien whose removal is based on a guilty plea entered before§212(c)’s repeal. Accordingly, §212(c) has had an afterlife for resident aliens with old criminal convictions.

The Supreme Court observed that when the BIA is deciding whether to exclude an alien, applying §212(c) is an easy matter. The Board first checks the statutory ground that the Department of Homeland Security (DHS) has identified as the basis for exclusion; the Board may note, for example, that DHS has charged the alien with previously committing a “crime involving moral turpitude,” Unless the charged ground is one of the pair falling outside §212(c)’s scope the alien is eligible for discretionary relief. The Board then determines whether to grant that relief based on such factors as “the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien’s residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces.” By contrast, when the BIA is deciding whether to deport an alien, applying §212(c) becomes a tricky business. So the question arises: How is the BIA to determine when an alien should receive §212(c) relief in the deportation context?

The approach challenged in the present matter definitively adopted in 2005 (after decades of occasional use), it often is called the “comparable-grounds” rule. That approach evaluate whether the ground for deportation charged in a case has a close analogue in the statute’s list of exclusion grounds. If the deportation ground consist 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. But if the deportation ground charged cover significantly different or more or fewer offenses than any exclusion ground, the alien is not eligible for a waiver. Such a divergence make §212(c) inapplicable even if  the particular offense committed by the alien falls within an exclusion ground. The case required the Supreme Court to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary or capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A). The Court held that 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 the country—the BIA has failed to exercise its discretion in a reasoned manner.

The Court observed that the problem with the comparable-grounds policy is that rather than considering factors that might be thought germane to the deportation decision, that policy hinge §212(c) eligibility on an irrelevant comparison between statutory provisions. The BIA ask whether the set of offenses in a particular deportation ground lines up with the set in an exclusion ground. But so what if it does? Does an alien charged with a particular deportation ground become more worthy of relief because that ground happens to match up with another? Or less worthy of relief because the ground does not? The comparison in no way changes the alien’s prior offense or his other attributes and circumstances. Each of these statutory grounds contains a slew of offenses. Whether each contain the same slew has nothing to do with whether a deportable alien whose prior conviction falls within both grounds merits the ability to seek a waiver.

The Supreme Court observed that in commencing Judulang’s deportation proceeding, the Government charged him with an “aggravated felony” involving a “crime of violence” based on his prior manslaughter conviction. That made him ineligible for §212(c) relief because the “crime of violence” deportation ground does not sufficiently overlap with the most similar exclusion ground, for “crimes involving moral turpitude.” The problem, according to the BIA, is that the “crime of violence” ground includes a few offenses—simple assault, minor burglary, and unauthorized use of a vehicle—that the “moral turpitude” ground does not. But this statutory difference in no way relates to Judulang—or to most other aliens charged with committing a “crime of violence.” Perhaps aliens like Judulang should be eligible for §212(c) relief, or perhaps they should not. But that determination is not sensibly made by establishing that simple assaults and minor burglaries fall outside a ground for exclusion. That fact is as extraneous to the merits of the case as a coin flip would be. It make Judulang no less deserving of the opportunity to seek discretionary relief—just as its converse (the inclusion of simple assaults and burglaries in the “moral turpitude” exclusion ground) would make him no more so.

 The Supreme Court rejected all the Government three arguments in defense of the comparable-grounds rule—the first based on statutory text, the next on history, the last on cost. The Court observed that BIA’s comparable-grounds rule was unmoored from the purposes and concerns of the immigration laws. It allowed an irrelevant comparison between statutory provisions to govern a matter of the utmost importance—whether lawful resident aliens with longstanding ties to United States may stay in that country. And contrary to the Government’s protestations, it was not supported by text or practice or cost considerations. The BIA’s approach therefore could not pass muster under ordinary principles of administrative law. The judgment of the Ninth Circuit was thus reversed, and the case was remanded for further proceedings consistent with the opinion.