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A Demand for Consistent Deportation Decisions

The National Law Journal
January 2, 2012

A recent U.S. Supreme Court case indicates that the Court has little patience for arbitrary policies that result in the deportation of long-standing residents of the United States in an inconsistent and unpredictable manner. In Judulang v. Holder, the Court unanimously found it unlawful-in the justices' words "arbitrary and capricious"-for the government to deport long-standing residents of this country based on something as arbitrary as the flip of a coin. At the heart of the Court's decision was a demand that the government apply the particularly severe penalty of deportation on a consistent and predictable basis. The decision in Judulang provides important clues about the type of factors the Court is looking for in deciding whether to review a case on writ of certiorari.

In Judulang, the Board of Immigration Appeals (BIA) ruled that the petitioner, a lawful permanent resident of the United States since 1974, could be deported because he had been convicted of an aggravated felony. The BIA also found Joel Judulang ineligible to seek discretionary relief from deportation under former § 212(c) of the Immigration and Nationality Act. The BIA reached its decision by applying a "comparable-grounds" policy that denied relief under § 212(c) to those seeking relief from deportation but made such relief available to those seeking admission into the country. Judulang argued that the BIA's policy was arbitrary and capricious because it did not make § 212(c) relief available on a consistent basis - if he could have sought relief while applying to enter this country, he should also be able to seek the same relief in a deportation case.

The Supreme Court agreed. While the decision was grounded in traditional standards of administrative law, it was clearly influenced by the importance and fairness implications of the issue under review. The Court, having recently described deportation as a particularly severe penalty, has long recognized the importance of consistent and predictable application of the country's immigration laws. In Judulang, the Court again described the issue as "a matter of the utmost importance - whether lawful resident aliens with longstanding ties to this country may stay here." Indeed, the Court recognized "the high stakes for an alien who has long resided in this country" when the government initiates a deportation proceeding.

Given the seriousness of the issue, the Court found it intolerable that the BIA could make critical deportation decisions based on what amounted to nothing more than the flip of a coin. The Court concluded that the BIA's comparable-grounds policy turned deportation into a "sport of chance" because it did "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" based on factors with "no connection to the goals of the deportation process or the rational operation of the immigration laws."

Judulang indicates that the Court is likely to pay particular attention to cases in which the severe penalty of deportation is applied in an inconsistent or arbitrary fashion. One such case now pending at the Court is Ramirez-Villalpando v. Holder. The case involves the deportation of an individual lawfully admitted to the United States in 1961 at the age of five as a lawful permanent resident. The U.S. Court of Appeals for the 9th Circuit determined, based on its review of an abstract of judgment, that Juan Ramirez-Villalpando should be deported because a prior conviction qualified as an aggravated felony. The Court has been asked to answer a question on which five courts of appeals are now conflicted: whether an abstract of judgment qualifies as a conclusive record that may be relied upon to determine whether a prior conviction qualifies as an aggravated felony. The 3d and 5th circuits have held that abstracts of judgment may not be consulted to prove the nature of a prior conviction. The 9th Circuit, joined by the 8th and 11th circuits, have held that abstracts may be consulted. The issue is of huge importance, given that three of the conflicting decisions stem from circuit courts that cover the nation's border with Mexico and hear 80 percent of the country's immigration cases.

Like Judulang, Ramirez-Villalpando is a long-standing resident of the United States facing the possibility of deportation based on a mere fortuity unconnected to the immigration laws. Deportation arbitrarily turns on where the deportation charges were brought. As a result of the circuit conflict, the same individual could be removable in California but not in Texas - his fate depends on the jurisdiction in which his removability is evaluated. Given the importance of the uniform application of the immigration laws, the Court has an obligation to ensure that inconsistencies within the judicial system are addressed. The similarities between Judulang and Ramirez-Villalpando should influence the Court as it decides whether to grant certiorari.