Judulang v. Holder: The Arbitrary Comparable-Grounds Rule

Judulang v. Holder, 565 U.S. 42, 52–59, 64 (2011), rejected the Board of Immigration Appeals' “comparable-grounds” test for access to former § 212(c) relief. A person's eligibility to request discretionary relief could not rationally turn on how closely two broad statutory lists of offenses happened to overlap.

The old waiver and the Board's test

Former Immigration and Nationality Act § 212(c) addressed exclusion at the border on its face. Agency and judicial practice extended relief to some lawful permanent residents facing deportation. After Congress repealed § 212(c), it remained potentially available in certain pre-repeal conviction cases. The Board's later comparable-grounds rule asked whether the charged ground of deportation was sufficiently similar to a ground of exclusion. If the categories did not match, the person could not even apply for the discretionary waiver. Id. at 45–51.

Joel Judulang had lived in the United States as a lawful permanent resident since childhood. His 1988 voluntary-manslaughter plea was the basis for an aggravated-felony crime-of-violence charge when removal proceedings began in 2005. The Board found the “crime of violence” deportation ground insufficiently comparable to the exclusion ground for crimes involving moral turpitude, and therefore declared him ineligible to seek § 212(c) relief. The Ninth Circuit upheld the rule. Id. at 51–52.

The standard was reasoned decisionmaking

The Supreme Court applied the Administrative Procedure Act's arbitrary-and-capricious standard, 5 U.S.C. § 706(2)(A). Review under that standard is narrow; a court does not choose immigration policy for the agency. But an agency must explain a policy using factors relevant to the statute's purposes. The Board's comparison of entire statutory categories did not speak to Judulang's offense, history, or fitness to remain. Judulang, 565 U.S. at 52–56.

The mismatch was concrete. The crime-of-violence ground included other offenses, such as certain simple assaults, that the moral-turpitude ground did not. Those additional offenses were not Judulang's offense. Their presence in one category did not explain why he personally could not seek a waiver. The Court also noted that the rule could exclude a person whose deportation ground fit entirely within a broader exclusion ground—the categories were rejected for being too similar in one direction and too different in another. Id. at 55–57.

Charging choice could change the answer

Another defect was dependence on the government's charging choice. The same conviction might fit more than one deportation ground, only one of which matched an exclusion ground. Two otherwise identical people could therefore face opposite eligibility outcomes because officials selected different charges. The Court called that a happenstance unrelated to the goals of the deportation process. Id. at 57–59.

The government defended the rule as textually grounded, historically established, and economical. The Court found none of those explanations sufficient. Section 212(c)'s text addressed exclusion, so it did not itself dictate the Board's particular extension to deportation. The Board had changed approaches over time, and administrative convenience alone could not save an arbitrary rule. Id. at 59–64. The Court reversed and remanded; it did not order that Judulang receive a waiver. Id. at 64.

The scope of the decision

Judulang does not hold that all deportable people must receive equal access to former § 212(c) relief, or that a lawful permanent resident wins discretionary relief whenever one statutory ground is comparable to another. It invalidated this particular eligibility policy because its criterion was irrational. The opinion expressly left open whether a different, reasoned limit could be adopted. Id. at 54–55, 57.

In an older-conviction case, examine the plea and conviction record, the charged removal grounds, historical eligibility for former § 212(c), and the current governing regulations and precedent. Separate access to an application from the decision whether to grant it. Our St. Cyr analysis explains the earlier plea-reliance issue that keeps former § 212(c) relevant to some historical convictions; Judulang addresses a different question about the Board's later eligibility test.