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Supreme Court: BIA’s policy for applying §212(c) in deportation cases is “arbitrary and capricious”

Published: Dec 12, 2011 4:30 pm

The United States Supreme Court rendered an immigration related decision today.  The unanimous 9-0 opinion was delivered by Justice Kagan.  See Judulang v. Holder, No. 10–694, December 12, 2011.

The case involved the application of Section 212(c) of the Immigration and Nationality Act (INA) in the deportation context.  Prior to its repeal in 1996, §212(c) gave the Attorney General the authority to grant discretionary relief to an individual charged with being excludable from the United States, where the alien had lawfully resided in the United States for at least seven years prior to a temporary departure so long as the individual was not excludable on one of two specified grounds.  

To determine continuing eligibility for §212(c) in a deportation context the BIA used a test called the “comparable grounds” rule, which evaluates whether a charged ground for deportation is analogous to the list of exclusion grounds contained in the INA.  

The rule works as follows. If a conviction that subjects an individual to a ground for deportation is “substantially equivalent” to a conviction that constitutes a ground for exclusion, an individual is eligible for §212(c) relief.  Conversely, if the deportation ground covers "different or more or fewer offenses than any exclusion ground",  the individual is ineligible for §212(c) relief, even if the particular conviction is a ground for exclusion.

The Supreme Court held that the comparable grounds rule is arbitrary and capricious under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), reversing and remanding the decision below rendered by the 9th Circuit Court of Appeals. 

The Court used particularly strong language in rendering its decision calling the Board's current approach fundamentally flawed because it doesn't even rest on factors that are relevant to whether an individual should be deported, characterizing the test as a “sport of chance” that circumvents the protections established by the APA. The Court further ruled that the Board's approach has no connection to the purposes of the immigration laws or the appropriate operation of the immigration system, and eligibility is tied to "irrelevant comparison between statutory  provisions."

The Government attempted to argue that the test is valid because it saves time and money, but the Court dismissed this argument stating that "cheapness alone cannot save an arbitrary agency policy."

Score one for the little guy.

Click here to read the full decision.

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