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High court outlaws key deportation process

Dec. 12, 2011 at 11:55 AM   |   Comments

WASHINGTON, Dec. 12 (UPI) -- The U.S. Supreme Court Monday unanimously struck down the way the Board of Immigration Appeals applies federal law in deportation cases.

The high court opinion, written by Justice Elena Kagan, said the BIA's method "is 'arbitrary and capricious' under the [federal] Administrative Procedure Act."

Immigration laws have always provided separate lists of substantive grounds for excluding someone from the United States or deporting someone from the country. The lists occasionally overlap. But the BIA has been using the exclusion statute as a model for deportation cases.

The BIA's approach, known as the "comparable grounds" rule, evaluates whether the charged ground -- or reason -- for deportation has "a close analogue in the statute's list of exclusion grounds" for exclusion.

"If the deportation ground consists of a set of crimes 'substantially equivalent' to the set making up an exclusion ground, the alien can seek ... relief [under the governing federal statute]," Kagan's opinion said. "But if the deportation ground covers different or more or fewer offenses than any exclusion ground, the alien is ineligible for relief, even if the alien's particular offense falls within an exclusion ground."

The case bringing the decision involves Joel Judulang, a native of the Philippines who entered the United States in 1974 at the age of 8.

"In 1988, Judulang took part in a fight in which another person shot and killed someone," the opinion said. "Judulang was charged as an accessory and eventually pleaded guilty to voluntary manslaughter. He received a six-year suspended sentence and was released on probation immediately after his plea. In 2005, after Judulang pleaded guilty to another criminal offense (this one involving theft), [the Department of Homeland Security] commenced an action to deport him. DHS charged Judulang with having committed an 'aggravated felony' involving 'a crime of violence,' based on his old manslaughter conviction."

An immigration judge ordered Judulang's deportation, and the BIA affirmed. The BIA said he could not apply for relief under the federal statute because the "crime of violence" deportation ground is not comparable to any exclusion ground, including the one for crimes involving moral turpitude.

When a federal appeals court rejected the case, the man's lawyers asked the U.S.Supreme Court for review.

"By hinging a deportable alien's eligibility for discretionary relief on the chance correspondence between statutory categories -- a matter irrelevant to the alien's fitness to reside in this country -- the BIA has failed to exercise its discretion in a reasoned manner," Kagan said.

The ruling reversed the lower court ruling and sent the case back down for proceedings in line with the high court opinion.

© 2011 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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