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Opinion analysis: Judulang v. Holder

In Judulang v. Holder, the Supreme Court addressed a case in which the federal government sought to remove from the United States a lawful permanent resident who has lived here since 1974, based on a 1989 voluntary manslaughter conviction.  Former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), provides for a “waiver of excludability,” which allows a noncitizen to enter the country despite a criminal conviction.  For many years, the courts have required such waivers to be available to lawful permanent residents facing deportation as well as those seeking admission into the country.

In 2005, the Department of Homeland Security sought to remove Joel Judulang from the United States on the ground that he had committed an “aggravated felony” involving a “crime of violence.”  The Board of Immigration Appeals (BIA) ruled, and the Ninth Circuit affirmed, that a “crime of violence” was not “comparable” to any ground for exclusion, including the one for crimes involving moral turpitude, rendering Judulang ineligible for Section 212(c) relief.

Among other things, Judulang argued that the BIA’s interpretation of the relevant statutory provisions, which denied him eligibility for Section 212(c) relief, was arbitrary and capricious.  He further contended that it made eligibility for 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).  (A full preview of the issues in the case is available here, while my summary of the oral argument is available here.)  In a stinging rejection of the U.S. government’s position, the Court unanimously ruled in favor of Joel Judulang.  Reversing and remanding for a unanimous Court, Justice Elena Kagan began the opinion for the Court as follows:

This case concerns the Board of Immigration Appeals’ . . . policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious.

The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it.

The Court initially outlined the statutory and administrative history behind exclusion and deportation proceedings.  The Court observed that, in Francis v. INS (2d Cir. 1976), the Second Circuit found that allowing deportable aliens who had left the country and returned to be eligible for Section 212(c) relief, but those who did not to be ineligible, violated equal protection principles.  The Court found that the BIA’s “comparable-grounds” approach, that is, “evaluat[ing] whether the ground for deportation charged in a case has a close analogue in the statute’s list of deportation grounds,” was arbitrary and capricious under the Administrative Procedure Act.

In reaching that conclusion, the Court applied ordinary administrative law principles.  Justice Kagan cited Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co. (1983), which administrative law professors generally understand as requiring “hard look” review of agency action.  The Court held that the BIA’s ruling “flunked” minimal judicial review:

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 this country – the BIA has failed to exercise its discretion in a reasoned matter.  (emphasis added).

The Court specifically found that “the comparable-grounds” approach of the BIA was not reasonable.  “Rather than considering factors that might be thought germane to the deportation decision, that policy hinges § 212(c) eligibility on an irrelevant comparison between statutory provisions.”  The statutory distinction, the Court reasoned, made little sense as applied to Judulang’s case.  The Court also found arbitrary the fact that, under the BIA’s policy, the noncitizen’s eligibility for relief might turn on how the U.S. government charged the noncitizen with removal.

In so holding, the Court emphasized that:

[i]n a foundational deportation case, this Court recognized the high stakes for an alien who has long resided in the country, and reversed an agency decision that would “make his right to remain here dependent on circumstances so fortuitous and capricious.”  Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947).  We think that the policy before us is similarly flawed.  The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported.  It instead distinguishes among aliens – decides who should be eligible for discretionary relief and who should not – solely by comparing the metes and bounds of diverse statutory categories in which an alien falls.  The result[ has] no connection to the goals of the deportation process or the rational operation of the immigration laws.

The Court proceeded to reject the textual, historical, and cost-based arguments of the U.S. government.  In conclusion, the Court emphasized that “[w]e must reverse an agency policy when we cannot discern a reason for it.  That is the trouble in this case.”

As in Judulang v. Holder, the Supreme Court has in recent years subjected the immigration decisions of the government to the same standards of judicial review as applied to other agency action.  The Court also has applied the principles of statutory interpretation to the immigration laws that it applies to other statutes.  In a number of cases, the noncitizen has won and the U.S. government’s position has been rejected.  The U.S. government, and specifically the Board of Immigration Appeals, should pay heed to the growing number of cases in recent years in which the Supreme Court has rejected its positions in removal cases.

Recommended Citation: Kevin Johnson, Opinion analysis: Judulang v. Holder , SCOTUSblog (Dec. 13, 2011, 10:40 AM),