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Argument preview: Judicial review of claims to relief from removal of lawful permanent residents

The following argument preview is written by Kevin R. Johnson,  Dean of the UC Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies.  He is one of the editors of the ImmigrationProf Blog.

The Supreme Court will soon hear oral arguments in a complex immigration case involving the removal of a long-term resident of the United States who, by all appearances, has lost contact with the native country that he left as a child.  Besides raising complex questions of statutory construction, the case implicates far-reaching constitutional questions that go to the heart of U.S. immigration law.

Since the late 1980s, Congress has made increasing numbers of non-citizens convicted of criminal offenses subject to removal from the United States.  In turn, resisting separation from family, friends, and community, noncitizens have resisted removal with increasing numbers of appeals to the courts.  In recent years, the Supreme Court on several occasions (see, for example, here and here) has taken the opportunity to review cases involving the deportation of lawful permanent residents convicted of crimes.

   On October 12, 2011, the Court will hear oral arguments in Judulang v. Holder, another case in which a lawful permanent resident is facing removal based on a criminal conviction.  (As an aside, the Court granted certiorari in September in but another criminal removal case, Vartelas v. Holder).  Mark Fleming of Wilmer Cutler Pickering Hale and Dorr LLP will argue the case for Joel Judulang.  Assistant to the Solicitor General Curtis Gannon will argue the case for the U.S. government.


Over the last several decades, Congress has taken a series of measures to toughen the U.S. immigration laws, especially those relating to immigrants convicted of crimes.  This is in no small part due to the fact that “criminal aliens” are, politically speaking, among the least popular of all immigrants.

Among other things, Congress has greatly expanded the definition of an “aggravated felony,” the commission of which can subject a lawful permanent resident to mandatory detention and removal from the United States.  Indeed, as I have previously explained, Congress has done so to such an extent that a crime need not necessarily be “aggravated” as popularly understood, or even a felony, to constitute an “aggravated felony” under the U.S. immigration laws

While Congress has tightened the U.S. immigration laws, the executive branch has aggressively pursued efforts to deport “criminal aliens.”  Indeed, critics have questioned the Obama administration’s zealous removal of thousands of noncitizens guilty of relatively minor criminal offenses.  Over the last few years, the administration has annually set removal records, with nearly 400,000 immigrants removed from the United States in fiscal year 2010.

Taken together, the ever-tightening U.S. immigration laws, the dramatic increase in removals due to greatly expanded enforcement efforts, and the harshness of removing a long-term resident from family, friends, and community have contributed to the fact that many non-citizens are appealing removal decisions to the federal courts.  Judulang v. Holder falls within this category:  a long-term resident convicted of a serious crime seeks relief from removal under a now-repealed provision of the immigration laws.

A lawful permanent resident is subject to removal if he or she has been convicted of an “aggravated felony.”  Another section of the immigration laws provides that an alien seeking admission into the United States can be denied entry if he or she has been convicted of “a crime involving moral turpitude.”  Judulang v. Holder is about the interplay between these two provisions.

Former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), provides for a kind of relief known as “waiver of excludability,” which, if granted, allows the non-citizen, including lawful permanent resident aliens reentering the United States, to enter the country despite a criminal conviction.  Years ago, the courts extended this relief to lawful permanent residents who are facing deportation from the country rather than simply seeking readmissions after leaving it.  Relatively broad in scope, Section 212(c) relief became an important tool in the arsenal of deportation defense attorneys.

In 1996, Congress repealed Section 212(c).  In its place, Congress created a new form of relief known as “cancellation of removal,” which has different requirements than Section 212(c) and is not available to a non-citizen convicted of an “aggravated felony.”  The Supreme Court has held that Section 212(c) relief remains available to lawful permanent residents who would have been eligible for it at the time of their convictions.

Joel Judulang’s case

Petitioner Joel Judulang, a citizen of the Philippines, came to the United States in 1974, at the age of eight, and has lived here for nearly four decades.  In 1989, Judulang was convicted of voluntary manslaughter.

In 2005, more than sixteen years after his conviction, the U.S. government commenced proceedings to deport Judulang from the United States based on his manslaughter conviction.  Voluntary manslaughter is an aggravated felony “crime of violence” under current law.  Judulang sought a waiver of deportation under now-repealed Section 212(c).  After decades in the United States, he likely has little familiarity with the Philippines; most friends, family, and community no doubt are in the United States.

The immigration court denied the request for relief and ordered Judulang removed from the United States.  The Board of Immigration Appeals (BIA) affirmed, finding that Judulang was ineligible for Section 212(c) relief because an aggravated felony “crime of violence” has no statutory counterpart in the grounds for excludability.  According to the Board, the result was compelled by the fact that the substantive deportability and excludability provisions do not utilize “similar language to describe substantially equivalent categories of offenses.”  The Board’s ruling means that an alien facing removal who has remained in the United States may not seek relief, but an alien in the same circumstances who traveled outside the country could argue upon return that his conviction is a crime of moral turpitude for which he or she is eligible for relief under Section 212(c).  Put differently, if Judulang had left the country after his criminal conviction, he could have argued upon seeking readmission that, although he could be denied entry for having committed a “crime involving moral turpitude,” he was eligible for a waiver under Section 212(c).

In a brief unpublished disposition, the Ninth Circuit denied Judulang’s petition for review.   In a truncated discussion of the issue, the Ninth Circuit agreed with the BIA that, because Judulang’s criminal conviction for voluntary manslaughter was “not substantially similar to any ground for exclusion,” he was ineligible for relief under Section 212(c).

Cert. petition

Judulang’s petition for certiorari highlighted the split among the circuits (explained below) as well as the important constitutional questions and the importance of the issue to numerous lawful permanent residents.  The United States opposed certiorari, emphasizing that “[t]he issue concerns a statutory section repealed almost 14 years ago and is therefore of greatly diminished importance.”  The Court granted certiorari on April 18, 2011.

Merits briefs

The narrow issue in the case before the Court is whether a lawful permanent resident who was convicted of a criminal offense and who is facing removal from the United States can be precluded from relief from removal under the now-repealed Section 212(c) of the Immigration and Nationality Act.

Petitioner’s arguments

In his brief, Judulang emphasizes that Section 212(c)’s application before the BIA’s 2005 rulings in Matter of Blake and Matter of Brieva-Perez was straightforward:  A lawful permanent resident subject to deportation for any criminal conviction, including for an “aggravated felony,” could apply for Section 212(c) relief.  The seminal decision in Francis v. INS (2d Cir. 1976) laid the groundwork for this practice and held that allowing relief for a criminal conviction for exclusion (i.e., when seeking admission into the country) under Section 212(c) but not for deportation (i.e., when resisting removal from the United States) could not survive rationality review under the Equal Protection Clause.  Judulang contends that the BIA’s change in practice in 2005, which the en banc Ninth Circuit followed in Abebe v. Mukasey (2009), is contrary to years of administrative practice — practice that Congress did not disturb.

Judulang contends that the BIA’s new policy also represents an improper retroactive change in the law and fundamentally transformed Section 212(c) relief.  In his view, this new policy cannot be squared with the agency’s past practice and would have a severe effect on many lawful permanent residents, like him, with criminal convictions before 2005.

Moreover, Judulang continues, the BIA’s new policy is arbitrary and capricious.  Contrary to Francis v. INS, it makes eligibility for Section 212(c) relief turn on arcane differences in the exclusion and deportation provisions of the Immigration and Nationality Act — differences that stray far afield from the plain meaning of Section 212(c).  Thus, Judulang argues, the Board resurrects a distinction based on the “irrelevant and fortuitous factor[]”of a lawful permanent resident’s travel history.

Judulang further contends that the distinction among lawful permanent residents facing deportation rather than exclusion violates equal protection or, at a minimum, raises serious equal protection concerns.  There is, in his view, no rational basis for providing different treatment to  lawful permanent residents who traveled abroad and those who did not.  Accordingly, Judulang asks the Court to either construe Section 212(c) to avoid that constitutional difficulty or hold that the BIA’s new policy is unconstitutional.   In the alternative, he argues that the BIA’s change in approach must be vacated and remanded because the agency has not provided a reasoned explanation for the change.

The government’s arguments

Appealing to the ordinary deference accorded to the decisions of administrative agencies, the United States contends that the BIA’s interpretation of Section 212(c) is entitled to deference because it is reasonable.  The Board has reasonably required that Section 212(c) relief only be available to a noncitizen facing deportation when there is a similarity between the grounds for deportation and grounds of inadmissibility.  The United States contends that, in this instance, the BIA reasonably concluded that a crime of violence/aggravated felony is not comparable to inadmissibility for a crime involving moral turpitude.

The United States attempts to elude the claim that the outcome in this case rests on the fortuity that Judulang did not depart the United States.  It contends that the Board’s rule does not hinge on travel abroad but rather on whether an alien has been charged with being inadmissible or deportable. That distinction, however, depends on whether a noncitizen has left the country or not.

The United States denies that the Board’s 2005 ruling on Section 212(c) relief represents a change in the law because, before 2005, there were no precedential opinions of the BIA (or courts of appeals) holding that a crime of violence/aggravated felony satisfied the statutory rule.  The United States also invoked the age-old concern that Judulang’s approach would increase costs to the government and lead to delays.

Finally, the United States denies that the Board’s interpretation raises equal protection concerns.  Interestingly, the government’s brief does not directly invoke the venerable “plenary power” doctrine, a bedrock of immigration law (see below) to claim that there is no room for judicial review of the U.S. immigration laws.  Rather, it contends that the Board’s position is rational and based on a facially legitimate and bona fide reason.  The United States argues that it is not irrational for the Board to distinguish between inadmissible and deportable aliens.  Indeed, the Board’s interpretation that Section 212(c) relief is available on more favorable terms during admission into the United States creates an incentive for aliens to bring themselves (and their past) to the attention of immigration officials.

Amicus briefs

Five amicus briefs were filed in support of Judulang and are available here.  One of those briefs in particular stands out.  A group of former immigration officials, including two former general counsel of the INS, filed a brief in support of the petition in which they argue that Judulang’s arguments are correct and that the BIA’s ruling represents a significant change in past practice, is not a reasonable interpretation of the statute, and is unconstitutional.

Implications of Judulang v. Holder

The Judulang case sounds remarkably similar to the seminal case of Francis v. INS (1976), in which the Second Circuit deemed unconstitutional a BIA ruling that a noncitizen with a criminal conviction was eligible for Section 212(c) relief only if he sought readmission to the country, but not if he faced removal from it.  The court of appeals reasoned that the Board’s position failed to survive rationality review under the Equal Protection  Clause and emphasized that “[f]undamental fairness dictates that permanent resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner.” (emphasis added).

The Francis decision is well known among law professors because it implicates fundamental questions surrounding the judicial review of the constitutionality of the U.S. immigration laws.  Forged well over a century ago by the Supreme Court in upholding the discriminatory laws dramatically restricting immigration from China the “plenary power” doctrine has often been invoked by the Supreme Court to shield the U.S. immigration laws from constitutional scrutiny.  Put bluntly, legal scholars love to hate the plenary power doctrine.  However, the doctrine remains the law of the land in the United States and is a prominent example of immigration exceptionalism from modern constitutional jurisprudence.

Generally speaking, rationality review is often thought of as the most toothless form of constitutional review in U.S. constitutional law.  However, given the plenary power doctrine, it –  as seen in cases like Francis v. INS – is about as rigorous a form of constitutional review as one generally sees in immigration law.  While Congress has abrogated Section 212(c) relief and the Court’s ruling with respect to relief for that relief will have a limited life-span, the issue of judicial review of the immigration laws will no doubt remain.

The Supreme Court has the opportunity to intervene and ensure minimal constitutional review of the immigration laws.  It could do so by ensuring rationality review under the Equal Protection Clause as followed by Francis v. INS.  The Roberts Court may be unwilling in Judulang v. Holder to engage in a frontal assault on the plenary power doctrine.   Indeed, last Term, an equally divided Court (with Justice Kagan recused), affirmed a Ninth Circuit decision, which was founded on plenary power principles, upholding a gender-based distinction in the nationality laws.  The Court would appear more likely to take a limited step, with Justice Kagan’s participation, to confirm the efficacy of Francis and its limited rationality review.

An emerging circuit split probably contributed to the Court’s decision to grant certiorari in this case, as the Ninth Circuit moved away from the Second Circuit’s holding in Francis on the expansiveness of Section 212(c) relief.  The issue will no doubt arise again as the Executive Branch continues to aggressively seek to remove lawful permanent residents based on relatively old convictions – recall, for example, that the U.S. government in 2005 sought to deport Judulang based on a 1989 conviction.

Interestingly, the BIA and Ninth Circuit approach at some level may be more in sync with the will of Congress (as well as public opinion) today, which has continually tightened the vise on relief from removal for noncitizens convicted of crimes.  That helps explain why Congress repealed Section 212(c) and added a narrower form of relief (cancellation of removal).  However, the Board’s approach does seem to represent a change from past practice and creates a serious difference in treatment of noncitizens with identical criminal convictions who face removal from the United States as opposed to those seeking re-admission into the country.

If nothing else, Judulang v. Holder is likely to remind Court watchers once again just how complicated the U.S. immigration laws are.  The accretion of incremental reforms over nearly sixty years have made the Immigration and Nationality Act so complex that confusion is often the norm.  In considering – and hopefully someday passing – comprehensive immigration reform, Congress will have an opportunity to, if nothing else, simplify the Immigration & Nationality Act, the omnibus immigration statute passed in the middle of the Cold War.

Recommended Citation: Kevin Johnson, Argument preview: Judicial review of claims to relief from removal of lawful permanent residents, SCOTUSblog (Oct. 6, 2011, 3:29 PM),