ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Matthew Kolken on Deportation And Removal

Supreme Court: BIA’s policy for applying Section 212(c) in deportation cases is “Arbitrary and Capricious”

Rate this Entry

The United States Supreme Court rendered an immigration related decision today.  The unanimous 9-0 opinion was delivered by Justice Kagan.  See Judulang v. Holder, No. 10-694, December 12, 2011.


The case involved the application of Section 212(c) of the Immigration and Nationality Act (INA) in the deportation context.  Prior to its repeal in 1996, 212(c) gave the Attorney General the authority to grant discretionary relief to an individual charged with being excludable from the United States, where the alien had lawfully resided in the United States for at least seven years prior to a temporary departure so long as the individual was not excludable on one of two specified grounds.  


To determine continuing eligibility for 212(c) in a deportation context the BIA used a test called the "comparable grounds" rule, which evaluates whether a charged ground for deportation is analogous to the list of exclusion grounds contained in the INA.  


The rule works as follows. If a conviction that subjects an individual to a ground for deportation is "substantially equivalent" to a conviction that constitutes a ground for exclusion, an individual is eligible for 212(c) relief.  Conversely, if the deportation ground covers "different or more or fewer offenses than any exclusion ground",  the individual is ineligible for 212(c) relief, even if the particular conviction is a ground for exclusion.


The Supreme Court held that the comparable grounds rule is arbitrary and capricious under the Administrative Procedure Act (APA), 5 U. S. C. 706(2)(A), reversing and remanding the decision below rendered by the 9th Circuit Court of Appeals. 


The Court used particularly strong language in rendering its decision calling the Board's current approach fundamentally flawed because it doesn't even rest on factors that are relevant to whether an individual should be deported, characterizing the test as a "sport of chance" that circumvents the protections established by the APA. The Court further ruled that the Board's approach has no connection to the purposes of the immigration laws or the appropriate operation of the immigration system, and eligibility is tied to "irrelevant comparison between statutory  provisions."


The Government attempted to argue that the test is valid because it saves time and money, but the Court dismissed this argument stating that "cheapness alone cannot save an arbitrary agency policy."


Score one for the little guy.


Click here to read the full decision.

Submit "Supreme Court: BIA’s policy for applying Section 212(c) in deportation cases is “Arbitrary and Capricious”" to Facebook Submit "Supreme Court: BIA’s policy for applying Section 212(c) in deportation cases is “Arbitrary and Capricious”" to Twitter Submit "Supreme Court: BIA’s policy for applying Section 212(c) in deportation cases is “Arbitrary and Capricious”" to Google Submit "Supreme Court: BIA’s policy for applying Section 212(c) in deportation cases is “Arbitrary and Capricious”" to StumbleUpon Submit "Supreme Court: BIA’s policy for applying Section 212(c) in deportation cases is “Arbitrary and Capricious”" to Reddit Submit "Supreme Court: BIA’s policy for applying Section 212(c) in deportation cases is “Arbitrary and Capricious”" to Digg Submit "Supreme Court: BIA’s policy for applying Section 212(c) in deportation cases is “Arbitrary and Capricious”" to del.icio.us

Tags: None Add / Edit Tags

Comments

Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: