Federal immigration law governs both the exclusion of aliens from admission to the United States and the deportation of aliens previously admitted to the United States. Since 1996, the Government has employed a unified “removal proceeding” for both actions, providing separate lists of substantive grounds for taking the two actions (i.e., exclusion or deportation). Until repealed in 1996, §212(c) of the Immigration and Nationality Act permitted the Attorney General to grant discretionary relief to an excludable alien if the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country and if the alien was not excludable on one of two specified grounds. By its terms, §212(c) applied only to exclusion proceedings, but the Board of Immigration Appeals (BIA) extended it to deportation proceedings several decades ago. Although repealed in 1996, the deportation relief remains available to an alien whose removal is based on a guilty plea entered before §212(c)’s repeal.
The case of Judulang v. Holder, 565 U.S. 42 (2011) Download Judulang v. Holder, 565 U.S. 42 (2011), concerns the BIA’s method for applying §212(c) in the deportation context. The BIA’s approach, known as the “comparable grounds” rule, evaluates whether the charged deportation ground has a close analogue in the statute’s list of exclusion grounds. If the deportation ground consists of a set of crimes “substantially equivalent” to the set making up an exclusion ground, the alien can seek relief. But if the deportation ground covers different or more or fewer offenses than an exclusionground, the alien is ineligible for relief, even if the alien’s particular offense falls within an exclusion ground.
Joel Judulang had lived continuously in the United States as a lawful permanent resident (LPR) since 1974 and pleaded guilty to voluntary manslaughter in 1988. After he pleaded guilty to another crime in 2005, DHS commenced a deportation action, charging him with committing an “aggravated felony” involving “a crime of violence” based on his manslaughter conviction. The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed, finding Judulang ineligible for relief §212(c) relief because the “crime of violence” deportation ground is not comparable to any exclusion ground.
Using the material from Unit 5 and the provided opinion, explain why the Supreme Court found the BIA’s policy for applying §212(c) in deportation cases arbitrary and capricious. Following that explanation, describe the Government’s three arguments in defense of the comparable grounds rule. Please limit your essay to 800 – 1200 words.
