On December 12, 2011 the Supreme Court of the United States, in Judulang v. Holder, 131 S.Ct. 2949 (2011), unanimously rejected the Board of Immigration Appeals rulings in two seminal cases; Matter of Blake, 23 I&N Dec. 722 (BIA 2005) and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005). The holdings in those cases were that in order for a foreign national to avail themselves of 212(c) relief in removal proceedings, there would need to be a "comparable grounds" analysis between the charge of deportability and a ground of inadmissibility. As of now, that test no longer exists.
The waiver called 212(c) allows foreign nationals with criminal convictions prior to 1996 to have their removal/deportation waived if they meet a stringent equity test. The comparable grounds test made it very difficult to get the waivers approved. If the deportability ground charged did not directly correspond to a ground of inadmissibility, the IJs would be bound by precedent and deny the case.
The primary example is convictions for firearms. A foreign national can be either removed or deported (difference in pre-1996 charge of deportation or post-1996 IIRIRA removal charge) for a firearms violation. However, an incoming foreign national is not inadmissible (or excluded) from the U.S. for a similar conviction. Thus a firearm conviction would fail the Blake test but now pursuant to Judulang would now permit the 212(c) application.
The Court's opinion in Judulang was not without strong language. In fact, the Court held at one point that the "BIA has flunked that test here." The Supreme Court held that the BIA's approach to the comparable grounds test is "arbitrary and capricious" and in violation of the Administrative Procedure Act.
So who does Judulang help?
The case opens the door for aliens who are in removal proceedings with pending 212(c) issues to change course in their arguments about comparable grounds. This case also opens the door for aliens who are appealing denials of 212(c) applications to move to remand their cases back to the immigration judges for further determinations. This case also opens the door for 212(c) relief for people with pre-1996 criminal convictions that raise deportation but not grounds of inadmissibility (firearms). Interestingly, the one group of people who may now have an opening but have still a big challenge in winning their cases are those who are outside the U.S. with final orders of removal because of denied 212(c) cases.
What should you do? If you or someone you know fits the description above, please discuss it with your lawyer. If you don't have a lawyer, then feel free to give us a call.
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