Judulang v. Holder

(Whether a lawful permanent resident convicted of an offense that renders him deportable and excludeable under different statutory subsections, but did not depart or reenter the United States after conviction, is categorically foreclosed from seeking discretionary relief under former Section § 212(c) of the Immigration and Nationalty Act)

The Board of Immigration Appeals (BIA) long held that a legal permanent resident (LPR) who is deportable due to criminal conviction may seek a § 212(c) Immigration and Nationalty Act (INA) waiver. In a change based on regulation interpretation, the BIA foreclosed § 212(c) relief in a ruling that LPRs who had not left the U.S. after conviction could only seek discretionary relief if charged under INA deportation language similar to an exclusion provision.

Petitioner was convicted of aggravated manslaughter in 1989, does not dispute his foreign birth but claims derivitive citizenship through his father, and had not left the country after his conviction. The circuits are split three ways concerning BIA’s new approach. The Ninth Circuit ruled § 212(c) does not apply to LPRs. The Second Circuit rejected BIA’s new approach. Eight Circuits have affirmed BIA’s new approach. The BIA and Ninth Circuit denied Petitioner’s appeal of the deportation order.

Petitioner argues BIA’s decision has a severly retroactive effect by denying LPRs § 212(c) relief for deportation. Congress has long held that BIA may provide discretionary relief from deportation. Congress expressly recognizes availability of § 212(c) relief from deportation. Petitioner therefore argues that the BIA recognizes that LPRs deportable for aggravated felony convictions are eligible for relief.