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. 2008); Judulang v. Gonzales, 249 Fed. Appx. 499, 501 (9th Cir. 2007). Since then, both Judulang's mother and father have become naturalized citizens of the U.S., and Judulang, currently age 45, has established 36 years of continuous residence in the U.S. See Judulang, 249 Fed. Appx. at 501; Brief for Petitioner, Joel Judulang at 24.
At age 22, Judulang was involved in a fight in which someone was shot and killed. See Brief for Petitioner at 25. However, Judulang was not the shooter, had only a minor involvement in the crime, and cooperated fully with authorities. See id. For these reasons, Judulang was able to plead to a lesser charge of voluntary manslaughter. See id. A California state court accepted this plea and sentenced Judulang to a six-year suspended sentence. See Judulang, 535 F. Supp. at 1130; Brief for Petitioner at 25. Judulang was released on probation immediately after his plea and served fewer than two years in county jail. See id.
Nearly 15 years later, in 2003, a California state court charged Judulang with two counts of grand theft of personal property valued at more than $400, alleging that Judulang stole and pawned two diamond rings. See Brief for Respondent, Eric H. Holder, Jr., Attorney General at 12. On June 12, 2003, after pleading guilty to one count of grand theft, Judulang was sentenced to 32 months in prison and ordered to pay $9,250 in restitution. See id.; Judulang, 535 F. Supp. 2d at 1130.
Following Judulang's release from county jail, the U.S. government commenced deportation proceedings against Judulang under 8 U.S.C. § 1227(a)(2)(A). See Judulang, 535 F. Supp. 2d at 1130; 8 U.S.C. § 1227(a)(2)(A). This statute allows Immigration and Customs Enforcement ("ICE") officials to deport noncitizens with an aggravated felony conviction or those convicted of two or more crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A). On September 28, 2005, an immigration judge ordered Judulang removed. See id. Judulang appealed the ruling, arguing that he qualified for relief from deportability under the Supreme Court's decision in INS v. St. Cyr and Section 212(c) of the Immigration and Nationality Act, despite repeal of this discretionary waiver in 1996. See id.; Brief for Petitioner at 3. The Board of Immigration Appeals (“BIA”) denied this appeal on February 3, 2006, determining that Judulang was ineligible for relief under Section 212(c) according to the BIA's decision in Matter of Brieva-Perez. See Judulang, 535 F. Supp. 2d at 1130; Brief for Petitioner at 25.
Later that month, while still in custody at an ICE detention center, Judulang petitioned the U.S. Court of Appeals for the Ninth Circuit to review the BIA's decision. See Judulang, 535 F. Supp. 2d at 1130. The Ninth Circuit stayed Judulang's case pending the outcome of a different case, Abebe v. Gonzales, which considered the same Section 212(c) question raised in Judulang's appeal. See id. After rejecting the detainee’s argument in Abebe, the Ninth Circuit's en banc review of Abebe suggested that Section 212(c) relief only applies to admissibility, not deportation, proceedings. See Brief for Petitioner at 28. Citing Abebe, the Ninth Circuit denied Judulang's petition for review. See id. The Supreme Court granted certiorari to consider the applicability of Section 212(c) to deportation proceedings.
In this case, the Supreme Court’s decision will determine how the Board of Immigration Appeals (“BIA”) applies the statutory-counterpart rule when lawful permanent residents (“LPRs”) request discretionary relief from removal under Section 212(c) of the Immigration and Nationality Act during deportation proceedings. See 8 U.S.C. 1182(c) (1994). The statutory-counterpart rule requires that LPRs facing deportation under Section 237 or Section 241 only obtain relief if the grounds for deportation have a “statutory-counterpart” for grounds for inadmissibility in Section 212(c). See Brief for Petitioner, Joel Judulang at 12; Brief for Respondent, Eric H. Holder, Jr., Attorney General, at 9.
The parties’ dispute focuses on whether Blake v. Carbone and In re Brieva-Perez represent a shift from previous law in the application of the statutory-counterpart rule, or are merely a clarification of the BIA’s current practice requiring similarity between a charged ground of deportability and a waivable ground of inadmissibility. See Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007); In re Brieva-Perez, 23 I. & N. Dec. 766 (B.I.A. 2005). Petitioner Joel Judulang contends that Blake and Brieva-Perez depart from precedent and in doing so create an impermissible retroactive effect on LPRs who formerly had access to Section 212(c) discretion. See Brief for Petitioner at 27. Respondent Attorney General Eric Holder counters that Blake and Brieva-Perez do not change the law at all but merely refocus it. See Brief for Respondent at 30. The parties also dispute whether the BIA’s policy violates the Fifth Amendment’s guarantee of due process and the Fourteenth Amendment’s right to equal protection. See Brief for Petitioner at 27; Brief for Respondent at 15–16.
Changing or Clarifying Section 212(c) Policy
As a threshold matter, the parties disagree on whether Blake and Brieva-Perez are a marked departure from existing law, or merely a clarification of that law. Judulang asserts that the BIA’s historic attitude towards the statutory-counterpart rule reflected the attitude that “an alien subject to deportation must have the same opportunity to seek discretionary relief as an [excludable] alien.” See Brief for Petitioner at 33. Judulang cites several earlier BIA decisions that he claims clearly establish a prior policy of affording Section 212(c) discretion to deportable LPRs whose grounds for deportation would also be grounds for excludability, including aggravated felonies and crimes of violence. See id. at 33–37; e.g. Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 287 (Att’y Gen. 1991); Matter of Mascorro-Perales, 12 I. & N. Dec. 228, 230 (BIA 1967); Matter of G-A-, 7 I. & N. Dec. 274, 275 (BIA 1956). Judulang further relies on a Second Circuit decision, which found that the purpose of the statutory-counterpart rule was to not deny deportable LPRs relief merely because they did not leave and re-enter the country after conviction. See Brief for Petitioner at 35; Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976). These decisions, according to Judulang, stand in contrast to the policy reflected in Blake and Brieva-Perez. See Brief for Petitioner at 37.
In response, Holder asserts that the decisions Judulang cites are either unpublished and non-precedential or not on-point See Brief for Respondent at 30–39. Holder addresses each of the five published decisions cited by Judulang, distinguishing them primarily on the grounds that they did not directly hold that the statutory-counterpart requirement can be satisfied by crime-of-violence aggravated felonies. See id. at 31–39. Holder further asserts that the BIA has repeatedly focused the scope of the statutory-counterpart analysis on the statutory grounds for deportation, rather than the conviction-based analysis set forth by Judulang. See id. at 41. Holder cites his own line of cases in distinguishing between “the waiver of a particular ground of exclusion” offered by Section 212(c) relief and a “waiver of the particular offense which forms the basis for that ground of exclusion.” See id. According to Holder, the BIA’s policy has never been so broad as to extend Section 212(c) discretion to all persons charged with a deportable offense that would also make them inadmissible. See id. Rather, Holder argues, only where there was marked similarity between the deportable and inadmissible offense would Section 212(c) discretion be available. See id.
Judulang further argues that, to the extent Blake and Brieva-Perez depart from existing precedent, the two cases create an impermissible retroactive effect on persons charged with deportable offenses who previously had access to Section 212(c) discretionary relief. See Brief for Petitioner at 31–32. Judulang cites SEC v. Chenery Corp., which suggested that the decision to give a law retroactive effect must involve a balance between the merits of adjudicatory policy changes and the harms to reliance and notice expectations. See id. at 39; SEC v. Chenery Corp., 332 U.S. 194, 202 (1947). Judulang also looks to a frequently cited D.C. Circuit Court of Appeals decision, which established a five-factor balancing approach to retroactivity; this approach considered whether the “case is one of first impression,” “whether the new rule represents an abrupt departure from well-established practice,” and the petitioner’s reliance on the previous rule. See id. at 40–41; Retail, Wholesale, & Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972). According to Judulang, all five factors cut against the government’s imposition of a retroactive change in law here: Blake and Brieva-Perez are not cases of first impression and cut against previous law, and Judulang relied on the former rule and is burdened by the change. See Brief for Petitioner at 40–44. Moreover, Judulang argues that this must be considered in light of the Supreme Court decision in INS v. St. Cyr, which ruled that the repeal of Section 212(c) was prospective only, and that the government cannot now articulate a good reason for changing the law. See id. at 16, 44; INS v. St. Cyr, 533 U.S. 289, 326 (2001).
As mentioned above, Holder denies that Blake and Brieva-Perez changed the law at all, and that Judulang’s retroactivity argument is moot. See Brief for Respondent at 43. Alternatively, Holder responds by addressing each of the five NLRB factors individually. See id. at 43–46. First, Holder asserts that there was no direct law on point—merely a set of general principles—and that Blake and Brieva-Perez are therefore better characterized as an extension of the Section 212(c) analysis to a new set of facts, rather than a change in law. See id. at 43. Next, Holder argues that Judulang could not have relied on Section 212(c) discretion because his voluntary manslaughter conviction did not make him deportable and did not expose him to the aggravated-felony bar to Section 212(c) relief (which had not been created at the time of Judulang’s conviction). See id. at 45. Finally, Holder sets forth a government interest in conserving judicial resources and soundly interpreting the statute. See id. at 46.
Evaluating the BIA’s Policy On Its Own Merits
Judulang claims that, apart from retroactivity concerns, Blake and Brieva-Perez are unconstitutional because the decisions violate the Fourteenth Amendment’s equal protection clause (in discriminating based on travel history), and because the decisions violate Fifth Amendment due process clause (in being arbitrary and capricious). See Brief for Petitioner at 44. Specifically, Judulang asserts that there is no good reason to make Section 212(c) discretion contingent upon linguistic similarities in statutes; thus, according to Judulang, the BIA’s policy is “simply arbitrary.” See id. at 44–45. Furthermore, Judulang asserts that requiring a close textual similarity between the charged ground of deportability and the waiver-eligible ground of inadmissibility discriminates between people who have travelled abroad (and are thus inadmissible) and those who have remained in the country (and are thus deportable). See id. at 51. This discrimination, according to Judulang, fails a rational basis test. See id. at 52. Overall, Judulang argues that this policy fails to reflect Congressional intent, creates an arbitrary distinction based on travel history, and leads to the absurd result of treating similarly situated LPRs differently based whether their proceedings are for deportation or admissibility. See id. at 45–49.
Holder argues that the BIA’s policy is reasonable and that any charge of equal protection violation rests on Judulang’s “obsolete” interpretation of Section 212(c) discretion, which focuses on a conviction-based approach rather than the BIA’s grounds-based approach. See Brief for Respondent at 49–50. Holder asserts that the BIA should be allowed discretion to interpret Section 212(c) in the absence of clear Congressional intent. See id. at 19. Holder further argues that, since Section 212(c) on its face only applies to inadmissibility, any extension of Section 212(c) discretion to deportability should be left up to the BIA. See id. at 21. Moreover, according to Holder, the BIA’s policy encourages those charged with deportable crimes to make their status known to authorities (by leaving and re-entering the country) so that they may take advantage of Section 212(c) discretion. See id. at 52.. This, Holder asserts, is sufficient to pass constitutional muster under either a due process or equal protection analysis. See id. at 17, 51.
In this case, the Supreme Court will decide under what circumstances a lawful permanent resident ("LPR") convicted of a deportable offense may qualify for discretionary removal relief under Section 212(c) of the Immigration and Nationality Act. Petitioner Joel Judulang argues that, prior to the Board of Immigration Appeals ("BIA") 2005 decisions in Matter of Blake and Matter of Brieva-Perez, an LPR deportable for an aggravated felony conviction that also rendered the resident inadmissible was entitled to apply for Section 212(c) relief. See Brief for Petitioner, Joel Judulang at 17, 28–29. Judulang argues that the BIA's change in policy violates equal protection and contradicts established reliance and retroactivity policies. See Brief for Petitioner at 31–31, 52. Respondent Attorney General Eric Holder argues that Section 212(c) reasonably restricts discretionary relief to LPRs with grounds of deportability comparable to grounds of exclusion and that the BIA decisions do not constitute a change in law. See Brief for Respondent, Eric H. Holder, Jr., Attorney General at 17–18, 30–31.
The National Association of Criminal Defense Lawyers (“NACDL”) and the National Legal Aid & Defender Association (“NLADA”) (collectively "National Associations") argue that the BIA's policy regarding Section 212(c) relief has an impermissible retroactive effect. See Brief of Amici Curiae National Association of Criminal Defense Lawyers, et al., ("National Associations") in Support of Petitioner at 5. Specifically, the National Associations fear that advice given to LPRs by criminal defense counsel regarding the types of convictions that would preserve eligibility for Section 212(c) discretionary relief may now prove inaccurate in the wake of Blake and Brieva-Perez. See Brief of National Associations at 4. The National Associations note reliance issues, arguing that LPRs substantially relied on this guidance when pleading guilty to crimes under the BIA’s prior Section 212(c) policy. See id. at 23.
In response, Holder states that the reliance argument is misplaced. See Brief for Respondent at 45. In fact, Holder notes that Judulang was never deportable under the 1989 conviction, and that the bar to Section 212(c) relief for aggravated felonies did not then exist. See id. Therefore, Judulang would not have considered or relied on Section 212(c) effects when he entered his guilty plea. See id. Moreover, Holder argues that Section 212(c) policy has not changed, and that Blake and Brieva-Perez are better characterized as an extension of the Section 212(c) analysis to a new set of facts, rather than a change in law. See id. at 43. Holder argues that the BIA's Section 212(c) policy correctly decides eligibility on a category-by-category basis, rather than an offense-by-offense basis, as suggested by Judulang and supporting amici. See id. at 46–47. This method, Holder explains, allows the BIA to address entire categories of aggravated felonies satisfying Section 212(c) requirements, saving time, resources, and offering a more uniform and sound interpretation of Section 212(c) See id.
The National Immigrant Justice Center (“NIJC”) and American Immigration Lawyers Association (“AILA”) argue that LPRs with strong ties to the United States are disproportionately affected by the BIA’s 2005 decisions in Blake and Brieva-Perez. See Brief of Amici Curiae National Immigrant Justice Center, et al. in Support of Petitioner at 5. The NIJC and AILA explain that, under the changed policy, an LPR who travels abroad after a conviction will still be eligible for Section 212(c) relief if subjected to exclusion proceedings upon returning to the United States. See id. at 3. However, an LPR who has not traveled abroad after conviction will not be eligible to apply for Section 212(c) relief if subjected to deportation proceedings based on that conviction. See id. at 3–4. Consequently, the NIJC and AILA maintain that the BIA’s decisions have the odd effect of exiling those LPRs with the strongest ties in the United States who preferred not to leave. See id. at 16, 18–19.
Holder argues that the BIA’s decision to distinguish between inadmissible and deportable LPRs is reasonable. See Brief for Respondent at 51. Specifically, Holder argues that making Section 212(c) discretionary relief available on more favorable terms during admissibility proceedings, rather than deportation proceedings, encourages deportable LPRs to bring themselves to the attention of immigration officials and to depart the United States. See id. In turn, this self-reporting effect helps the government enforce immigration laws, and furthers its substantial interest in doing so. See id.
In this case, the Supreme Court will decide whether a lawful permanent resident of the United States convicted of a deportable offense is eligible to request discretionary relief under Section 212(c) of the Immigration and Nationality Act, where similarly situated permanent residents in exclusion proceedings have such an option. Petitioner Joel Judulang argues that the BIA’s interpretation of Section 212(c) in recent decisions Blake and Brieva-Perez is impermissibly retroactive, arbitrary and capricious, and unconstitutionally discriminatory against lawful permanent residents who do not travel abroad. Respondent Attorney General Holder asserts that Section 212(c), on its face, does not afford discretion to lawful permanent residents convicted of a deportable offense, that Blake and Brieva-Perez did not change the law, and that the BIA has good reason to require a close textual similarity between a charged ground of deportation and a waivable ground of inadmissibility.
Courthouse News Service, Filipino Gets High Court to Review His Alien Status (Apr. 18, 2011)
Crimmigration Blog, SCOTUS Will Decide § 212(c) Case (Apr. 18, 2011)