In the recent Supreme Court decision Judulang v. Holder, the Supreme Court struck down the Board of Immigration Appeals’ policy of limiting section 212(c) relief to deportable aliens based on whether the ground of deportability has an adequately comparable statutory ground of excludability in section 212 of the Act. However, the high court did not seek to fill the resulting legal vacuum with a new standard for governing the applicability of section 212(c) to deportation cases. As a result, there now exists an intriguing opportunity for creating more favorable precedent on this particular issue.
One of the possible consequences of Judulang may be the resurgence of a previously adopted method for limiting the application of section 212(c) in deportation proceedings. This method involves an examination of how the deportable alien would have fared in exclusion proceedings, i.e. it asked the question “does the basis for the alien’s deportability (usually a crime) fall within a statutory ground of excludability?” See, e.g., Matter of Tanori, 15 I&N Dec. 566, 567-568 (1976) (determining that deportable alien was eligible to seek 212(c) waiver nunc pro tunc because the “same facts” which rendered him deportable would have rendered him excludable at the time of his last entry). The “falls within a ground of excludability” line of cases may well have been revived by Judulang’s abolishment of the “comparable ground of excludability” standard. Notably, the “falls within a ground of excludability” standard for applying 212(c) in deportation proceedings was the law of the Second Circuit even before Judulang resolved a circuit split on the issue. See Blake v.Carbone, 489 F. 3d 88, 103 (2d. Cir. 2007) (rejecting the BIA’s approach and holding instead that “[i]f the offense that renders [an alien] deportable would render a similarly situated [alien] excludable, the deportable [alien] is eligible for a waiver of deportation”). Blake v. Carbone may therefore be, at least for the present time, the most persuasive authority on the issue in circuits which previously followed the “comparable ground” standard.
Another consequence of Judulang is that the decision provides a legitimate basis for a motion to reopen for deportable aliens previously denied 212(c) relief for lack of a comparable ground of excludability.
The implications of Judulang are far reaching for many aliens at various stages of removal proceedings, but the full reach of the decision will depend on many factors, especially in the motion to reopen/reconsider context as Judulangclashes with the varied and still-developing law governing issues such as sua sponte reopening, the departure bar, and the other regulatory limitations on such motions. For further reading on the implications of Judulang, check out the following link from the American Immigration Council’s Legal Action Center.
For more information on Judulang v. Holder visit Legal Action Center