JGL Eye Column

By JOSEPH G. LARIOSA

(© 2011 Journal Group Link International)

C HICAGO (jGLi) – A decision by the United States Supreme Court last month, staying the deportation of a Filipino immigrant convicted of voluntary manslaughter, could slow down the deportation of nearly 393,000 people in the fiscal year that ended Sept. 30, half of whom were considered criminals.
 

Joel Judulang, 45, of Los Angeles, California, was ordered released from detention by a unanimous decision last Dec. 12 of the Supreme Court penned by Justice Elena Kagan, describing the new policy of the government’s Board of Immigration Appeals (BIA) as “arbitrary and capricious.”

Judulang was born in the Philippines and was brought to the United States in 1974 at the age of eight. He had continuously resided in the US for 36 years. His grandfather served in the U.S. military in the Philippines between 1923 and 1948 and became a U.S. citizen.

His parents were also naturalized. He has a 15-year-old daughter, who is a native-born U.S. citizen, as are his four nephews and two nieces, and his two sisters and an older brother, who is also lawful permanent resident, like himself.

His parents did not apply him for naturalization because “they did not know the intricacies of immigration law.”

In 1988, when Judulang was 22, he was involved in a fight in which another person shot and killed someone. Judulang was not the shooter and he was charged as an accessory. Because of his minor involvement and cooperation with authorities, he was allowed to plead to voluntary manslaughter and received a six-year suspended sentence. He served fewer than two years in county jail and was released on probation immediately after his plea.

AGGRAVATED FELONY CRIME OF VIOLENCE

In 2005, the government initiated deportation proceedings against Judulang based on his conviction for voluntary manslaughter described by the government’s Immigration Judge as “aggravated felony crime of violence.” The IJ informed Judulang that “Section 212(c)” of the Immigration and Nationality Act  “could have been applied to your manslaughter conviction,” but his six-year suspended sentence disqualified him from relief, such that he was unable to submit an application.

The former section 212(c) of the Act provides that an alien lawfully admitted for permanent residence who temporarily goes abroad voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted to the United States at the discretion of the Attorney General.

But his lawyers led by Mark C. Fleming, counsel of record, told the Supreme Court that the IJ’s ruling “was doubly wrong.” The bar on Section 212(c) relief for lawful permanent residents (LPRs), who served a “term of imprisonment of at least five years” was added in 1990 and does not apply to Judulang’s 1989 conviction. And even if did, the 1990 Act refers only to time served, and Judulang served fewer than two years. Although the IJ found Judulang deportable for a second conviction, neither the BIA nor the Ninth Circuit (Court in San Francisco, California) relied on that theory and it is not before the Court.

The Ninth Circuit denied Judulang’s petition for review and denied rehearing. Justice Anthony Kennedy granted a stay of judgment pending review, allowing Judulang’s release from custody on bond pending appeal. He now lives in Los Angeles with his elderly mother, a U.S. citizen, and works to support himself and his family.

INACCURATE DESCRIPTION OF STATUTE

In its ruling, the Supreme Court said, the Ninth Circuit’s approach offers no basis for affirming the judgment below.

The Supreme Court said the Government’s waiving exclusion grounds under Sec. 212(c) for an alien who is being deported whose offense is based on “comparable-grounds” is an “inaccurate description of the statute.”

The Court said “Section 212(c)” actually says, “the Attorney General may admit any excludable alien, except if the alien is charged with two specified grounds…. If the alien is eligible for relief, and the thing the Attorney General waives is not a particular exclusion ground, but the simple denial of entry.”

When the government charged Judulang with violation of Section 212 (c), it was a wrong application of the violation. It said, “Section 212(c) refers solely to exclusion decision; its extension to deportation cases arose from the agency’s extra-textual view that some similar relief should be available in that context to avoid unreasonable distinctions.”

It said, “if the BIA proposed to narrow the class of deportable aliens eligible to seek Section 212(c) relief by flipping a coin -- heads an alien may apply for relief, tails he may not -- we would reverse the policy in an instant” because the agency action “must be based on non-arbitrary (and) relevant factors.”

It said BIA’s “approach must be tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system.”

The Court said “BIA has repeatedly vacillated in its method for applying Section 212(c) to deportable aliens."

NEW POLICY

And the BIA adopted a new policy entirely, extending §212(c) eligibility to “aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion, which has been specifically excepted from section 212(c).”

The Court adopted what the Attorney General stated that “an alien subject to deportation must have the same opportunity to seek discretionary relief as an alien subject to exclusion,” saying Judulang merely wanted to inquire if his “prior conviction falls within an exclusion ground.”

The Court rejected the argument of the Government that the grant of relief to Judulang “would grant eligibility to a greater number of deportable aliens,” saying “cheapness alone cannot save an arbitrary agency policy.”

Of the 393,000 people arrested at the end of September, 27,635 had been arrested for drunken driving, which is not listed as a deportable offense.

Last year, 36,178 criminals were deported as a result of the Secure Communities program, now in place in more than 1,400 jurisdictions, up from 14 in 2008. It's expected to be in more than 3,000 jurisdictions nationally by 2013. 

Editor’s Note: To contact the author, please e-mail him at: (lariosa_jos@sbcglobal.net)