��ʮ���²����

The BIA’s policy for applying §212(c) in deportation cases is “arbitrary and capricious” under the Administrative Procedures Act.

The Board of Immigration Appeals (BIA) long held that a legal permanent
resident (LPR) who is deportable due to a criminal conviction may seek a
§212(c) Immigration and Nationality Act (INA) waiver. In a change based on
regulation interpretation, the BIA foreclosed §212(c) relief in a ruling
that LPRs who had not left the U.S. after conviction could only seek
discretionary relief if charged under INA deportation language similar to
an exclusion provision. Under the BIA’s procedures, it first checked to see if the basis for exclusion of the alien fell into one of the two specified categories. If it did not, the alien was eligible for discretionary relief. In the deportation context, the BIA used a “comparable grounds” rule in which it assessed whether the charged deportation ground had a close analogue in the statute’s list of exclusion grounds.

Petitioner Judulang has lived continuously in the United States as a lawful permanent resident since 1974. He plead guilty to aggravated manslaughter in 1988. In 2005, he plead guilty to another crime and DHS commenced a deportation action, charging him with having committed an aggravated felony involving a “crime of violence” based on his manslaughter conviction. The Immigration judge ordered Petitioner’s deportation, and the BIA affirmed, finding him ineligible for §212(c) relief because the “crime of violence” deportation ground is not comparable to any exclusion ground.

The Supreme Court held that the comparable-grounds approach does not survive scrutiny under the arbitrary and capricious standard because whether an alien’s deportation ground is comparable to other deportation grounds is irrelevant to the alien’s fitness to reside in the United States.