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On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, a case addressing the Board of Immigration Appeals’ use of the comparable grounds approach for determining eligibility for relief under former section 212(c) of the Immigration and Nationality Act. The Court held that this approach was arbitrary and capricious under the Administrative Procedure Act, and remanded for the agency to determine a new way for determining the eligibility of deportable aliens for 212(c) relief. The purpose of this article is to place the Court’s decision in its proper historical context and to chart the paths forward that are open to the agency in light of the Court’s flawed holding. Contrary to the rhetoric of the decision, as well as numerous commentators, the fundamental issue in Judulang arose because of the agency’s determination to extend relief to a class of aliens, those charged with deportability, who were not covered by the clear language of section 212(c). The flaws inherent in the comparable grounds approach thus must be seen in this light, not through the alternative narrative whereby Judulang is the product of a restrictive and arbitrary approach to deporting resident aliens. As well as clarifying what Judulang is about and how it arose, this article goes beyond the Court’s holding and assesses the theories on which the agency could base its ultimate policy for affording deportable aliens an opportunity to apply for 212(c) relief. Although there are several options open to the agency post-Judulang, this article concludes that the most rational path forward would extend 212(c) eligibility to deportable aliens if the conduct undergirding the charge of deportability would have also exposed the alien to inadmissibility. This approach, implicitly sanctioned by the Supreme Court in Judulang, would represent the best chance for keeping 212(c) cases out of the Supreme Court and giving 212(c) relief, repealed in 1996, the belated burial it deserves.

Publication Citation

27 Geo. Immigr. L.J. 1-33 (2012)