Supreme Court Strikes Down Arbitrary and Capricious Standards in Deportation Cases


A controversial procedure used by the Board of Immigration Appeals (BIA) and other immigration courts in deciding deportation cases did not withstand scrutiny by the Supreme Court. In a decision published on December 12, 2011 in Judulang v. Holder, a unanimous court ruled that the procedure used by the BIA in applying Section 212(c) of the Immigration and Nationality Act (INA) in certain deportation cases does not pass statutory scrutiny, and is improper and irrelevant to the process of determining whether a person should be deported. This is, of course, something that immigration attorneys have known for some time.

The INA, which contains most of the nation’s immigration laws, establishes two categories of people who may be legally removed from the U.S., excludable (or inadmissible) aliens and deportable immigrants. Briefly stated, excludability affects people who allegedly did not have a legal basis for entering the country from the beginning, while deportation applies to people who have lost legal immigration status through a judicial process. Section 212(c) used to allow a person found to be excludable to request a waiver from the Attorney General, and the BIA long ago extended that relief to deportation cases as well. Congress repealed 212(c) in 1996, but it is still available to people whose deportation is based on criminal pleas entered before 1996.

Joel Judulang came to the U.S. from the Philippines at age 8 in 1974. He has lived here ever since. He pleaded guilty to voluntary manslaughter in 1988 because of his involvement in a fight where someone was killed. Prosecutors had charged him as an accessory to the killing. He later pleaded guilty to theft in 2005, and the Department of Homeland Security (DHS) sought to deport him based on the prior manslaughter plea. Because the plea was from before 212(c)’s repeal in 1996, Judulang could use it to request relief.

The BIA has applied a standard it calls “comparable grounds” in deciding whether to apply 212(c) in a deportation case. It reviews whether, in the statute defining grounds for deportability, there exists a ground that it deems sufficiently comparable to a ground for excludability found elsewhere in the INA. The immigration judge ordered Judulang deported, and the BIA affirmed, finding that the “crime of violence” ground of deportability did not have a comparable counterpart in the grounds for exclusion. The Supreme Court found the process used by the BIA to determine comparability to be arbitrary and meaningless. Justice Kagan, writing for the Court, held this standard to be “arbitrary and capricious,” “irrelevant to the alien’s fitness to reside in the country,” and essentially a “sport of chance.”

Whether or not the Supreme Court’s ruling in this case has any broader impact remains to be seen. The Court struck down a decision that had no logical basis, an undeniably positive step. The overall system of immigration laws remains riddled with inconsistencies and flaws.

Ohio immigration visa lawyer Gus Shihab helps people seeking to visit or immigrate to the United States in understanding the often complex processes involved. For a free and confidential consultation, contact us online or at (800) 625-3404.

Web Resources

Judulang v. Holder (PDF), U.S. Supreme Court, December 12, 2011

More Blog Posts

Supreme Court Will Consider Controversial Immigration Law, Immigration Visa Lawyer Blog, December 15, 2011

Obama Administration’s New Policy on “Low Priority” Immigration Offenders Draws Criticism, Immigration Visa Lawyer Blog, November 17, 2011

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