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.