Judulang v. Holder

Decision Date12 December 2011
Docket NumberNo. 10–694.,10–694.
Citation565 U.S. 42,132 S.Ct. 476,181 L.Ed.2d 449
Parties Joel JUDULANG, Petitioner v. Eric H. HOLDER, Jr., Attorney General.
CourtU.S. Supreme Court

Mark C. Fleming, Boston, MA, for Petitioner.

Curtis E. Gannon, Washington, DC, for Respondent.

Seth P. Waxman, Paul R.Q. Wolfson, James L. Quarles, III, Eric F. Citron, Wilmer Cutler Pickering, Hale and Dorr LLP, Washington, DC, Mark C. Fleming, Counsel of Record, Megan Barbero, Elizabeth Kent Cullen, Wilmer Cutler Pickering, Hale and Dorr LLP, Boston, MA, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General Counsel of Record, Tony West, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Curtis E. Gannon, Assistant to the Solicitor General, Donald E. Keener, Alison R. Drucker, Andrew MacLachlan, Attorneys, Department of Justice, Washington, DC, for Respondent.

Justice KAGAN delivered the opinion of the Court.

This case concerns the Board of Immigration Appeals' (BIA or Board) policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws. We hold that the BIA's approach is arbitrary and capricious.

The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it.


Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 1996, these two kinds of action occurred in different procedural settings, with an alien seeking entry (whether for the first time or upon return from a trip abroad) placed in an "exclusion proceeding" and an alien already here channeled to a "deportation proceeding." See Landon v. Plasencia, 459 U.S. 21, 25–26, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982)(comparing the two). Since that time, the Government has used a unified procedure, known as a "removal proceeding," for exclusions and deportations alike. See 8 U.S.C. §§ 1229, 1229a. But the statutory bases for excluding and deporting aliens have always varied. Now, as before, the immigration laws provide two separate lists of substantive grounds, principally involving criminal offenses, for these two actions. One list specifies what kinds of crime render an alien excludable (or in the term the statute now uses, "inadmissible"), see § 1182(a) (2006 ed., Supp. IV), while another—sometimes overlapping and sometimes divergent—list specifies what kinds of crime render an alien deportable from the country, see § 1227(a).

An additional, historic difference between exclusion and deportation cases involved the ability of the Attorney General to grant an alien discretionary relief. Until repealed in 1996, § 212(c) of the Immigration and Nationality Act, 66 Stat. 187, 8 U.S.C. § 1182(c) (1994 ed.), authorized the Attorney General to admit certain excludable aliens. See also § 136(p) (1926 ed.) (predecessor provision to § 212(c)). The Attorney General could order this relief when the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country, unless the alien was excludable on one of two specified grounds. See § 1182(c) (1994 ed.).1 But by its terms, § 212(c) did not apply when an alien was being deported.

This discrepancy threatened to produce an odd result in a case called Matter of L–––––, 1 I. & N. Dec. 1 (1940), leading to the first-ever grant of discretionary relief in a deportation case. L– was a permanent resident of the United States who had been convicted of larceny. Although L–'s crime made him inadmissible, he traveled abroad and then returned to the United States without any immigration official's preventing his entry. A few months later, the Government caught up with L– and initiated a deportation action based on his larceny conviction. Had the Government apprehended L– at the border a short while earlier, he would have been placed in an exclusion proceeding where he could have applied for discretionary relief. But because L– was instead in a deportation proceeding, no such relief was available. Responding to this apparent anomaly, Attorney General Robert Jackson (on referral of the case from the BIA) determined that L– could receive a waiver: L–, Jackson said, "should be permitted to make the same appeal to discretion that he could have made if denied admission" when returning from his recent trip. Id., at 6. In accord with this decision, the BIA adopted a policy of allowing aliens in deportation proceedings to apply for discretionary relief under § 212(c) whenever they had left and reentered the country after becoming deportable. See Matter of S–––––, 6 I. & N. Dec. 392, 394–396 (1954).

But this approach created another peculiar asymmetry: Deportable aliens who had traveled abroad and returned could receive § 212(c) relief, while those who had never left could not. In Francis v. INS, 532 F.2d 268 (1976), the Court of Appeals for the Second Circuit concluded that this disparity violated equal protection. Id., at 273 ("[A]n alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time"). The BIA acquiesced in the Second Circuit's decision, see Matter of Silva, 16 I. & N. Dec. 26 (1976), thus applying § 212(c) in deportation proceedings regardless of an alien's travel history.

All this might have become academic when Congress repealed § 212(c) in 1996 and substituted a new discretionary remedy, known as "cancellation of removal," which is available in a narrow range of circumstances to excludable and deportable aliens alike. See 8 U.S.C. § 1229b.

But in INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), this Court concluded that the broader relief afforded by § 212(c) must remain available, on the same terms as before, to an alien whose removal is based on a guilty plea entered before § 212(c)'s repeal. We reasoned that aliens had agreed to those pleas with the possibility of discretionary relief in mind and that eliminating this prospect would ill comport with " 'familiar considerations of fair notice, reasonable reliance, and settled expectations.' " Id., at 323, 121 S.Ct. 2271 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ). Accordingly, § 212(c) has had an afterlife for resident aliens with old criminal convictions.

When the BIA is deciding whether to exclude such an alien, applying § 212(c) is an easy matter. The Board first checks the statutory ground that the Department of Homeland Security (DHS) has identified as the basis for exclusion; the Board may note, for example, that DHS has charged the alien with previously committing a "crime involving moral turpitude," see 8 U.S.C. § 1182(a)(2)(A)(i)(I). Unless the charged ground is one of the pair falling outside § 212(c)'s scope, see n. 1, supra, the alien is eligible for discretionary relief. The Board then determines whether to grant that relief based on such factors as "the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien's residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces." St. Cyr, 533 U.S., at 296, n. 5, 121 S.Ct. 2271.

By contrast, when the BIA is deciding whether to deport an alien, applying § 212(c) becomes a tricky business. Recall that § 212(c) applies on its face only to exclusion decisions. So the question arises: How is the BIA to determine when an alien should receive § 212(c) relief in the deportation context?

One approach that the BIA formerly used considered how the alien would fare in an exclusion proceeding. To perform this analysis, the Board would first determine whether the criminal conviction making the alien deportable fell within a statutory ground for exclusion. Almost all convictions did so, largely because the "crime involving moral turpitude" ground encompasses so many offenses.2 Assuming that threshold inquiry were met, the Board would mimic its approach in exclusion cases—first making sure the statutory ground at issue was not excepted from § 212(c) and then conducting the multi-factor analysis. See Matter of Tanori, 15 I. & N. Dec. 566, 567–568 (1976) ; In re Manzueta, No. A93 022 672, 2003 WL 23269892 (BIA, Dec. 1, 2003).

A second approach is the one challenged here; definitively adopted in 2005 (after decades of occasional use), it often is called the "comparable-grounds" rule. See, e.g., De la Rosa v. U.S. Attorney General, 579 F.3d 1327, 1332 (C.A.11 2009). That approach evaluates whether the ground for deportation charged in a case has a close analogue in the statute's list of exclusion grounds. See In re Blake, 23 I. & N. Dec. 722, 728 (2005) ; In re Brieva–Perez, 23 I. & N. Dec. 766, 772–773 (2005).3 If the deportation ground consists of a set of crimes "substantially equivalent" to the set of offenses making up an exclusion ground, then the alien can seek § 212(c) relief. Blake, 23 I. & N. Dec., at 728. But if the deportation ground charged covers significantly different or more or fewer offenses than any exclusion ground, the alien is not eligible for a waiver. Such a divergence makes § 212(c) inapplicable even if the particular offense committed by the alien falls within an exclusion ground.

Two contrasting examples from the BIA's cases may help to illustrate this approach. Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he has committed an "aggravated felony" involving "illicit trafficking in a controlled substance." 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii)....

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