discretionary waiver

Judulang v. Holder

Issues

Whether a lawful permanent resident who pled guilty to deportable offenses, but did not leave the country and return before the government started deportation proceedings, is barred from applying for discretionary relief  where  similarly situated permanent residents in exclusion proceedings could seek such relief.

 

After Petitioner Joel Judulang, a lawful permanent resident of the United States, was convicted of a deportable offense, the Board of Immigration Appeals determined that he was not eligible for a discretionary waiver of deportability under Section 212(c) of the Immigration and Nationality Act. On its face, Section 212(c) applies only to lawful permanent residents who are excludable when they attempt to enter the country, rather than to residents convicted of deportable offenses while already in the country. However, the Board of Immigration Appeals has previously allowed some permanent residents convicted of deportable offenses to apply for the Section 212(c) discretionary waiver. Petitioner Judulang asserts that he should be allowed to take advantage of the waiver, since his deportable offenses would render him excludable if he tried to re-enter the country. Judulang further argues that the Board of Immigration Appeals' change in Section 212(c) policy regarding deportable and excludable offenses is impermissibly retroactive and facially unconstitutional. The Department of Justice argues that the Board of Immigration Appeals has good reason to require a close textual similarity between a charged ground of deportability and a waivable ground of excludability, and that its policy is not impermissibly retroactive because it does not reflect a change in previous law. The Supreme Court’s decision in this case will mean the difference between amnesty and deportation for many lawful permanent residents convicted of deportable offenses.

Questions as Framed for the Court by the Parties

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under  form  Section 212(c) of the Immigration and Nationality Act.

Petitioner Joel Judulang, born in the Philippines in 1966, became a lawful permanent resident (“LPR”) of the United States at eight years of age. See Judulang v. Chertoff, 535 F. Supp. 2d 1129, 1130 (S.D. Cal.

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