US Supreme Court Rejects BIA Deportation Waiver Policy As Arbitrary and Capricious

US Supreme Court Rejects BIA Deportation Waiver Policy As Arbitrary and Capricious

Last week, the US Supreme Court’s unanimous decision in Judulang v. Holder struck down the Board of Immigration Appeals (BIA) approach for deciding when non-citizens are eligible for a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act.

Mr. Judulang had been in proceedings to be removed from the United States on the ground that he had committed an “aggravated felony” involving a “crime of violence.” The BIA ruled that a “crime of violence” was not “comparable” to any ground for exclusion, rendering Mr. Judulang ineligible for Section 212(c) relief. The Ninth Circuit Court of Appeals affirmed this decision before it was accepted by the Supreme Court.

In its unanimous decision written by Justice Kagan, the Supreme Court held that the BIA policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under INA section 212(c) is “arbitrary and capricious.” The Court highlighted that:

“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 resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws.”

In conclusion, the Court ruled,

“We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance—whether lawful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protestations, it is not supported by text or practice or cost considerations. The BIA’s approach therefore cannot pass muster under ordinary principles of administrative law.

Goldstein & Associates, LLC applauds this decision of the US Supreme Court, which marks the end of a policy that turned many deportation cases into a sport of chance. As practitioners that work with complex deportation and removal cases, the attorneys at Goldstein & Associates know the importance of just decisions such as this one. As the case law develops with regard to deportation defense and litigation, we strive to uncover ways to apply new precedent decisions so that they may benefit our existing clients. In Judalong, the Supreme Court strengthened the framework of our immigration laws in a way that will allow for fair hearings on discretionary waiver of deportation cases under former section 212(c) of the INA.

Posted in Uncategorized | Comments Off on US Supreme Court Rejects BIA Deportation Waiver Policy As Arbitrary and Capricious

New Waiver Procedures for Certain Undocumented Immigrants Announced

On January 6, 2012, U.S. Citizenship and Immigration Services (USCIS) announced its intention to change its current process for certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. Specifically, USCIS proposed policy changes which will allow certain immediate relatives of U.S. citizens (ie: individuals unlawfully present in the United States who entered the U.S. without inspection) to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act, prior to departing the United States for consular processing of their immigrant visa applications.

Under current procedures, an immediate relative of a U.S. citizen with an approved Petition for Alien Relative (I-130), must depart the United States and file their permanent resident application and waiver of inadmissibility application at the appropriate U.S. consulate or embassy in their home country. This process causes the foreign national to remain outside the United States while the waiver application is being processed, which frequently takes more than a year. U.S. citizens are often separated from their family members during this long wait.

The proposed new process is intended to reduce the time that U.S. citizens are separated from immediate relatives during the lengthy process of obtaining a waiver of inadmissibility. Under the new procedures, an immediate relative with an approved I-130 will be able to remain in the United States while the waiver of inadmissibility is processing. The spouses and children of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence in order to obtain that visa expeditiously, would apply for a provisional waiver before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad.

The attorneys and staff at Goldstein & Associates have successfully obtained numerous waivers of inadmissibility for our clients. This new policy will not change the way we prepare the substance of a waiver application; it will still be based on proving that the U.S. citizen qualifying relative will suffer extreme hardship if the waiver application is not approved. The change, and the main benefit of this new process for adjudicating waivers, will be that our clients will not be separated for lengthy periods of time during this difficult process. Goldstein & Associates applauds USCIS for proposing this change, and eagerly awaits its implementation.

Posted in Family Immigration | Comments Off on New Waiver Procedures for Certain Undocumented Immigrants Announced