Judulang v. Holder

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All this might have become academic when Congress repealed § 212(c) in 1996 and substituted a new discretionary-remedy, known as “cancellation of removal,” which is available in a narrow range of circumstances to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 (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 (quoting Landgraf v. USI Film Products, 511 U. S. 244 , 270 (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 .

By contrast, when the BIA is deciding whether to deport an alien, applying § 212(c) becomes a tricky business. Recall

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). Under the comparable-grounds rule, the immigration judge would look to see if that deportation ground covers substantially the same offenses as an exclusion ground. And according to the BIA in Matter of Meza, 20 I. & N. Dec. 257 (1991), the judge would find an adequate match — the exclusion ground applicable to aliens who have committed offenses “relating to a controlled substance,” 8 U. S. C. §§ 1182 (a)(2)(A)(i)(II) and (a)(2)(C).

Now consider an alien convicted of first-degree sexual abuse of a child, whom DHS wishes to deport on the ground that he has committed an “aggravated felony” involving “sexual abuse of a minor.” §§1101(a)(43)(A), 1227(a)(2) (A)(iii). May this alien seek § 212(c) relief? According to the BIA, he may not do so — not because his crime is too serious (that is irrelevant to the analysis), but instead because no statutory ground of exclusion covers substantially the same offenses. To be sure, the alien’s own offense is a “crime involving moral turpitude,” 8 U. S. C. § 1182 (a) (2)(A)(i)(I), and so fits within an exclusion ground. Indeed, that will be true of most or all offenses included in this deportation category. See supra, at 49. But on the BIA’s view, the “moral turpitude” exclusion ground “addresses a distinctly different and much broader category of offenses than the aggravated felony sexual abuse of a minor charge.” Blake, 23 I. & N. Dec., at 728 . And the much greater sweep

standard is “narrow”; as we have often recognized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn, of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 , 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 , 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking. When reviewing an agency action, we must assess, among other matters, “‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281 , 285 (1974)). That task involves examining the reasons for agency decisions — or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502 , 515 (2009) (noting “the requirement that an agency provide reasoned explanation for its action”).

The BIA has flunked that test here. By hinging a deport-able alien’s eligibility for discretionary relief on the chance correspondence between statutory categories — a matter irrelevant to the alien’s fitness to reside in this country— the BIA has . failed to exercise its discretion in a reasoned manner.

A

The parties here spend much time disputing whether the BIA must make discretionary relief available to deportable and excludable aliens on identical terms. As this case illustrates, the comparable-grounds approach does not do so. If Judulang were seeking entry to this country, he would be

evade immigration officials for as long as possible,” because they could in any event “seek [discretionary] relief if caught.” Id., at 52.

In the end, we think this dispute beside the point, and we do not resolve it. The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek § 212(c) relief by flipping a coin — heads an alien may apply for relief, tails he may not — we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “‘relevant factors,’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285 ), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system. A method for disfavoring deportable aliens that bears no relation to these matters — that neither focuses on nor relates to an alien’s fitness to remain in the country — is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for § 212(c) relief on other, more rational bases.

The problem with the comparable-grounds policy is that it does not impose such a reasonable limitation. Rather than considering factors that might be thought germane to the deportation decision, that policy hinges § 212(c) eligibility on an irrelevant comparison between statutory provisions. Recall that the BIA asks whether the set of offenses in a particular deportation ground lines up with the set in an exclusion ground. But so what if it does? Does an alien charged with a particular deportation ground become more worthy of relief because that ground happens to match up with another? Or less worthy of relief because the ground does not? The comparison in no way changes the alien’s prior offense or his other attributes and circumstances. So it is difficult to see why that comparison should matter. Each

tary manslaughter in 1988. That person could be charged (as Judulang was) with an “aggravated felony” involving a “crime of violence,” see 8 U. S. C. §§ 1101 (a)(43)(F), 1227(a) (2)(A)(iii). If so, the alien could not seek a waiver because of the absence of a comparable exclusion ground. But the alien also could be charged with “a crime involving moral turpitude committed within five years . . . after the date of admission,” see § 1227(a)(2)(A)(i)(I). And if that were the deportation charge, the alien could apply for relief, because the ground corresponds to the “moral turpitude” ground used in exclusion cases. See In re Salmon, 16 I. & N. Dec. 734 (1978). So everything hangs on the charge. And the Government has provided no reason to think that immigration officials must adhere to any set scheme in deciding what charges to bring, or that those officials are exercising their charging discretion with § 212(c) in mind. See Tr. of Oral Arg. 34-36. So at base everything hangs on the fortuity of an individual official’s decision. An alien appearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country.

In a foundational deportation case, this Court recognized the high stakes for an alien who has long resided in this country, and reversed an agency decision that would “make his right to remain here dependent on circumstances so fortuitous and capricious.” Delgadillo v. Carmichael, 332 U. S. 388 , 391 (1947). We think the policy before us similarly flawed. The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distinguishes among aliens — decides who should be eligible for discretionary relief and who should not — solely by comparing the metes and bounds of diverse statutory categories into which an alien falls. The resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws. Judge Learned Hand wrote in

another early immigration case that deportation decisions cannot be made a “sport of chance.” See Di Pasquale v. Karnuth, 158 F. 2d 878 , 879 (CA2 1947) (quoted in Rosenberg v. Fleuti, 374 U. S. 449 , 455 (1963)). That is what the comparable-grounds rule brings about, and that is what the APA’s “arbitrary and capricious” standard is designed to thwart.

B

The Government makes three arguments in defense of the comparable-grounds rule — the first based on statutory text, the next on history, the last on cost. We find none of them persuasive.

1

The Government initially contends that the comparable-grounds approach is more faithful to “the statute’s language,” Brief for Respondent 21 — or otherwise said, that “lifting that limit ‘would take immigration practice even further from the statutory text,’” id,., at 22 (quoting Matter of Hernandez-Casillas, 20 I. & N. Dec. 262 , 287 (1990)). In the Government’s view, § 212(c) is “phrased in terms of waiving statutorily specified grounds of exclusion”; that phrasing, says the Government, counsels a comparative analysis of grounds when applying § 212(c) in the deportation context. Brief for Respondent 21; see Tr. of Oral Arg. 34 (“[T]he reason [the comparable-grounds approach] makes sense is because the statute only provides for relief from grounds of . . . exclusion”).

The first difficulty with this argument is that it is based on an inaccurate description of the statute. Section 212(c) instructs that certain resident aliens “may be admitted in the discretion of the Attorney General” notwithstanding any of “the provisions of subsection (a) . . . (other than paragraphs (3) and (9)(C)).” 8 U. S. C. § 1182 (c) (1994 ed.). Subsection (a) contains the full list of exclusion grounds; paragraphs (3) and (9)(C) (which deal with national security

not phrased in terms of “waiving grounds of exclusion,” cannot support the BIA’s use of the comparable-grounds rule— or, for that matter, any other method for extending discretionary relief to deportation cases. We well understand the difficulties of operating in such a text-free zone; indeed, we appreciate the Government’s yearning for a textual anchor. But § 212(c), no matter how many times read or parsed, does not provide one.

2

In disputing Judulang’s contentions, the Government also emphasizes the comparable-grounds rule’s vintage. See Brief for Respondent 22-23, 30-43. As an initial matter, we think this a slender reed to support a significant government policy. Arbitrary agency action becomes no less so by simple dint of repetition. (To use a prior analogy, flipping coins to determine § 212(c) eligibility would remain as arbitrary on the thousandth try as on the first.) And longstanding capriciousness receives no special exemption from the APA. In any event, we cannot detect the consistency that the BIA claims has marked its approach to this issue. To the contrary, the BIA has repeatedly vacillated in its method for applying § 212(c) to deportable aliens.

Prior to 1984, the BIA endorsed a variety of approaches. In Matter of T, 5 I. & N. Dec. 389 , 390 (1953), for example, the BIA held that an alien was not eligible for § 212(c) relief because her “ground of deportation” did not appear in the exclusion statute. That decision anticipated the comparable-grounds approach that the BIA today uses. But in Tanori, the BIA pronounced that a deportable alien could apply for a waiver because “the same facts” — in that case, a marijuana conviction — would have allowed him to seek § 212(c) relief in an exclusion proceeding. 15 I. & N. Dec., at 568 . That approach is more nearly similar to the one Judu-lang urges here. And then, in Matter of Granados, 16 I. & N. Dec. 726 ,728 (1979), the BIA tried to have it both ways: It denied § 212(c) eligibility both because the deportation ground charged did not correspond to, and because the alien’s prior

conviction did not fall within, a waivable ground of exclusion. In short, the BIA’s eases were all over the map.

The Government insists that the BIA imposed order in Matter of Wadud, 19 I. & N. Dec. 182 , 185-186 (1984), when it held that a deportable alien could not seek § 212(c) relief unless the deportation ground charged had an “analogous ground of inadmissibility.” See Brief for Respondent 40-41. But the BIA’s settlement, if any, was fleeting. Just seven years later, the BIA adopted a new policy entirely, extending § 212(c) eligibility to “aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted from section 212(c).” Hernandez-Casillas, 20 I. & N. Dec., at 266. That new rule turned the comparable-grounds approach inside-out, allowing aliens to seek § 212(c) relief in deportation cases except when the ground charged corresponded to an exclusion ground that could not be waived. To be sure, the Attorney General (on referral of the case from the BIA), disavowed this position in favor of the more standard version of the comparable-grounds rule. Id., at 287. But even while doing so, the Attorney General stated that “an alien subject to deportation must have the same opportunity to seek discretionary relief as an alien . . . subject to exclusion.” Ibid. That assertion is exactly the one Judu-lang makes in this case; it is consonant not with the comparable-grounds rule the BIA here defends, but instead with an inquiry into whether an alien’s prior conviction falls within an exclusion ground.

Given these mixed signals, it is perhaps not surprising that the BIA continued to alternate between approaches in the years that followed. Immediately after the Attorney General’s opinion in Hernandez-Casillas, the BIA endorsed the comparable-grounds approach on several occasions. See Meza, 20 I. & N. Dec., at 259; Matter of Montenegro, 20 I. & N. Dec. 603 , 604-605 (1992); Matter of Gabryelsky, 20 I. & N. Dec. 750 , 753-754 (1993); In re Esposito, 21 I. & N.

contexts. But cheapness alone cannot save an arbitrary agency policy. (If it could, flipping coins would be a valid way to determine an alien’s eligibility for a waiver.) And in any event, we suspect the Government exaggerates the cost savings associated with the comparable-grounds rule. Judu-lang’s proposed approach asks immigration officials only to do what they have done for years in exclusion cases; that means, for one thing, that officials can make use of substantial existing precedent governing whether a crime falls within a ground of exclusion. And Judulang’s proposal may not be the only alternative to the comparable-grounds rule. See supra, at 55-56. In rejecting that rule, we do not preclude the BIA from trying to devise another, equally economical policy respecting eligibility for § 212(c) relief, so long as it comports with everything held in both this decision and St. Cyr.

Ill

We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance — whether lawful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protestations, it is not supported by text or practice or cost considerations. The BIA’s approach therefore cannot pass muster under ordinary principles of administrative law.

The judgment of the Ninth Circuit is hereby reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.