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Posted by attorney Irene Vaisman

On December 12, 2011, the Supreme Court of the United States issued a unanimous decision in Judulang v. Holder, overturning the Board of Immigration Appeals’ (Board or BIA) policy of restricting § 212(c) relief for many lawful permanent residents (LPRs) with old criminal convictions.

Under the Board’s now-rejected policy, LPRs found deportable were eligible for § 212(c) relief only if they could show that the ground of deportation was substantially equivalent to a ground of inadmissibility. The Board’s policy, referred to as the “comparable ground test," was announced in the 2005 decisions Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005). In its decision, the Supreme Court concluded that the Board’s policy did not pass the “arbitrary and capricious" standard under the Administrative Procedures Act.

The Judulang decision remands the case to the Ninth Circuit, where the case originated. Hopefully, that remand should lead to a straightforward reversal of the BIA and a remand to the agency in Mr. Judulang’s case. At some point thereafter, whether in Mr. Judulang’s case or in another case, the BIA should announce a new non-arbitrary and rational policy for determining when an LPR charged with deportability based on a pre-1996 conviction may apply for § 212(c) relief.

While the Supreme Court in Judulang did not set forth what the new policy for determining § 212(c) eligibility should be, the Court referenced the approach proposed by Mr. Judulang in his briefing. Under that approach any LPR whose conviction also falls within a ground of inadmissibility – such as the crime involving moral turpitude inadmissibility ground – would be eligible for § 212(c) relief. Under this approach, it does not matter whether the deportation ground at issue has a comparable ground of inadmissibility. This essentially is the approach adopted by the Second Circuit (New York). See Blake v. Carbone, 489 F.3d. at 104 (“[E]ach petitioner, a deportable lawful permanent resident with an aggravated felony conviction, is eligible for a § 212(c) waiver if his or her particular aggravated felony offense could form the basis of exclusion under § 212(a) as a crime of moral turpitude.").

Although Judulang suggests that the Court has not foreclosed all limits on § 212(c) relief, it is hard to envision an approach that the BIA could adopt that would exclude Mr. Judulang, or others like him from pursuing relief and yet pass muster under Judulang’s “arbitrary and capricious" standard. Moreover, the Court was clear that any limitation on § 212(c) relief must also be consistent with the Court’s prior decision in INS v. St. Cyr, 533 U.S. 289 (2001) (holding that IIRIRA repeal of § 212(c) could not be applied retroactively to pre-IIRIRA guilty pleas). St. Cyr has foreclosed any limitation that was not a restriction on relief that existed prior to § 212(c)’s repeal. It seems unlikely that the BIA could now devise a rule to limit § 212(c) relief that would not run afoul of one of these two Supreme Court opinions.

Who is Potentially Affected by this decision:

  1. Mr. Judulang and other individuals like him charged with deportability based on a pre 1996 guilty plea that also triggers inadmissibility.

Mr. Judulang is an LPR who was charged under a ground of deportability (aggravated felony “crime of violence") that the BIA ruled was not comparable to any ground of inadmissibility even though his offense would have qualified as a “crime involving moral turpitude" under § 212(a). Mr. Judulang argued that, because he would have been able to seek § 212(c) relief if he had traveled abroad and been charged with inadmissibility, he therefore should also be found eligible to seek § 212(c) relief when charged with deportability based on the same offense.

  1. Individuals charged with deportability based on a pre-1996 guilty plea that does not trigger inadmissibility (e.g., firearm offense).

Judulang also provides support for seeking § 212(c) relief for LPRs who are deportable but not inadmissible/excludable, such as LPRs with simple possession firearm convictions. The BIA has long held such individuals ineligible to seek § 212(c) relief. See, e.g., Matter of Granados, 16 I&N Dec. 726, 728 (BIA 1979) (finding § 212(c) ineligibility for a firearm possession offense because the offense did not come within the grounds of excludability as a crime involving moral turpitude), aff’d, 624 F.2d 191 (9th Cir. 1980). But, in 1990, in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; AG 1991), the BIA itself recognized that excluding LPRs from 212(c) relief because the offense at issue did not fit within a ground of excludability would lead to incongruous results not in keeping with the spirit of the statute. Id. at 265 (“This limitation can result in the total unavailability of relief from deportation for longtime resident aliens who . . . may not have committed offenses nearly as serious as those of other aliens who are eligible for the section 212(c) waiver."). The BIA found that § 212(c) may waive all grounds of deportability except those that related to subversives and war criminals, which were the only categories specifically excluded by the then text of § 212(c). Id. at 266.

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