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High Court finds deportation policy ‘arbitrary and capricious’

The Board of Immigration Appeals’ policy for deciding when resident aliens may apply for discretionary relief from deportation under §212(c) is arbitrary and capricious, the U.S. Supreme Court has ruled.

The defendant in the case, who has lived continuously in the United States as a lawful permanent resident since 1974, pleaded guilty to voluntary manslaughter in 1988.

After he pleaded guilty to another crime in 2005, the Department of Homeland Security commenced a deportation action, charging him with having committed an “aggravated felony” involving “a crime of violence” based on his manslaughter conviction.

An immigration judge ordered the defendant deported.

He appealed, arguing that he qualified for discretionary relief from removal under §212(c) of the Immigration and Nationality Act, which applied at the time. That provision allowed for discretionary relief in cases where residents left the country for a short period of time and sought reentry but were determined inadmissible. Because the law allowed relief for similar residents who faced deportation and did not leave the country, the defendant argued that he should qualify.

But the Board of Immigration Appeals dismissed the appeal and affirmed the deportation order, finding that the defendant was ineligible for §212(c) relief because the “crime of violence” ground for deportation was not comparable to any exclusion ground.

The 9th Circuit denied review. The Supreme Court agreed to hear the case.

In a unanimous decision the Court reversed, holding that BIA’s policy for applying §212(c) in deportation cases is “arbitrary and capricious” under the Administrative Procedure Act.

In an opinion written by Justice Elena Kagan, the Court said the BIA’s approach of applying the rule was impermissible because it “neither focuses on nor relates to an alien’s fitness to remain in the country.”

“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,” Kagan wrote. “The comparison in no way changes the alien’s prior offense or his other attributes and circumstances. So it is difficult to see why that comparison should matter.”

U.S. Supreme Court. Judulang v. Holder, No. 10-694. Dec. 12, 2011. Lawyers USA No. 993-3410.


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