By Robert L. Reeves & Nancy E. Miller

In a unanimous decision issued December 12, 2011, the United States Supreme Court (SCOTUS) did away with the “comparable grounds rule” used by the Board of Immigration Appeals to determine whether the charged deportation ground was sufficiently similar to an exclusion grounds in the §212(c) context.  The Court held that the rule is arbitrary and capricious under the Administrative Procedure Act.  In reaching this conclusion, the SCOTUS expanded the group of lawful permanent residents who may apply for a waiver of their criminal conviction under §212(c) of the Immigration & Nationality Act (INA).
 
Prior to April 1, 1997, there were two different procedural settings in Immigration Court.  One was called Exclusion.  Whether the alien was excludable was determined by a list of grounds of exclusion.  The other procedure was called Deportation and was governed by a list of grounds of deportation.  Sometimes the grounds overlapped and sometimes they were divergent.  When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), it did away with the different court proceedings. 

Immigration Court now has a unified procedural process called Removal.  IIRIRA also did away with waivers of criminal convictions under §212(c) and replaced it with a narrower ground of relief called cancellation of removal.  However, in 2001, the SCOTUS brought back §212(c) relief for those aliens who were either in Deportation or Exclusion proceedings before 4/1/97 or those who had pled guilty to certain criminal offenses prior to 4/1/97.  (Congress had also limited the availability of 212(c) relief in 1996 through the Antiterrorism and Effective Death Penalty Act [AEDPA] ( but that discussion is beyond the scope of this article). 

INA §212(c) permitted the Attorney General to grant discretionary relief to LPRs who had lawfully resided in the United States for at least seven years before temporarily leaving the country.  By its terms, §212(c) was only available to aliens in Exclusion proceedings.  The Board extended §212(c) relief to those in Deportation proceedings decades ago.  However, for those aliens in Deportation  proceedings, the  court evaluated whether the charged deportation ground had a close analogue in the statute’s list of exclusion grounds.  This comparison was known as the “comparable grounds” rule. 
 
This approach led to some inconsistent results.  In the case just before the court, Judulang v. Holder, the alien had pleaded guilty to voluntary manslaughter. DHS charged him with being an aggravated felon for having been convicted of a crime of violence.  (§212(c) is available for those with aggravated felony convictions while cancellation is not).  The Immigration Judge and the Board found that the crime of violence deportation ground was not comparable to any exclusion ground (despite the fact that voluntary manslaughter could also be considered a crime of moral turpitude, which is a ground of exclusion).  Other incongruous examples of the application of the “comparable grounds” rule are that §212(c) was not available for those with firearms convictions.  Under recent case law (specifically Matter of Blake and Abebe v. Mukasey) §212(c) was not available to those convicted of various crimes of abuse.

However, in Judulgang, the Court held that “by hinging a deportable 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.” The Court further held that even if the Board has a legitimate reason for limiting §212(c)’s scope in deportation cases, it must do so in some rational way.  It found that the “comparable grounds” rule does not accomplish that purpose.  Rather, it turns deportation decisions into a “sport of chance”.  In response to the government’s claim that the “comparable ground” rule saves time and money, the Court held that “cheapness alone cannot save an arbitrary agency policy”. 

Anyone who was denied §212(c) relief because their deportation ground was not comparable to an exclusion grounds should immediately seek a consultation with an experienced immigration attorney. They may be eligible to finally obtain relief they should have had a long time ago.

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