Court Overturns BIA Decision Matter of Blake Regarding 212(c) Eligibility

Judulang v. Holder, 565 U.S. ___, 132 S. Ct. 476 (2011)

The Supreme Court issued a unanimous decision overturning the Board of Immigration Appeals’ (Board or BIA) policy of restricting relief from removal, namely section 212(c) waivers, for many lawful permanent residents (LPRs) with old criminal convictions. Under the Board’s now-rejected policy, LPRs found deportable were eligible for 212(c) relief only if they could show that the ground of deportation was substantially equivalent to a ground of inadmissibility. The Board’s policy, referred to as the “comparable ground test,” was announced in the 2005 decisions Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005). The Legal Action Center has issued a Practice Advisory offering strategies for LPRs and others impacted by the decision.

In its decision, the Supreme Court analyzed the Board’s policy under the Administrative Procedure Act’s “arbitrary and capricious” standard. It concluded that the Board failed to satisfy this standard. As the Court explained, “[b]y 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.”

Prior to the Supreme Court’s decision, nearly all the circuits had considered challenges to Matter of Blake and Matter of Brieva, and all but the Second Circuit had upheld the BIA’s decisions. As a result, there may be hundreds, or even thousands, of LPRs, who were ordered deported without an opportunity to apply for section 212(c), despite being eligible.