Saturday, January 7, 2012

Supreme Court Ruling Provides Relief For Some Otherwise Deportable Permanent Residents

An incongruous application of a statutory provision allowing the Board of Immigration Appeals (BIA) to grant discretionary relief to lawful permanent residents who had been convicted of deportable crimes meant that relief available to lawful permanent residents who had departed the country and placed in removal proceedings upon re-entry was not always available to some convicted LPRs placed in removal proceedings while still in the United States. The Supreme Court in Judulang v. Holder struck down the BIA's rule for granting § 212(c) relief only if the Department of Homeland Security (DHS) charged them with a ground of deportability that had a comparable ground of inadmissibility. Instead, a unanimous Supreme Court will require the BIA to adopt a new rule that is not "arbitrary and capricious."

There are two categories of lawful permanent residents who could be affected by this ruling:

1. LPRs charged with deportability based on a pre-1996 guilty plea that also triggers inadmissibility. A person charged with an aggravated felony (crime of violence), for example, may have been able to obtain relief from inadmissibility under the former rule applied by the BIA but would not have been eligible for relief for the same crime in a deportation proceeding. Presumably, a new approach would allow the same treatment of the deportable LPR as the inadmissible LPR.

2. Individuals charged with deportability based on a pre Judulang should allow LPRs to apply for §212(c) discretionary relief for criminal convictions that are not excludable offense but are grounds for deportation.

As a consequence of the Judulang decision, individuals currently in removal proceedings may now request §212(c) relief. Cases already on appeal could be remanded to an immigration court for a §212(c) hearing. Those with final orders may be able to have their cases reopened or reconsidered based on the Judulang decision.

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