Khalid Umer v. Eric Holder, Jr. , 463 F. App'x 429 ( 2012 )

Case: 10-60342 Document: 00511779058 Page: 1 Date Filed: 03/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 6, 2012
No. 10-60342 Lyle W. Cayce
Summary Calendar Clerk
KHALID UMER,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A38-802-967
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On January 9, 2012, the Supreme Court vacated this court’s judgment
entered on March 11, 2011, and remanded the case for further consideration in
light of Judulang v. Holder, ––– U.S. ––––, 132 S. Ct. 476 (2011). In Judulang
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-60342 Document: 00511779058 Page: 2 Date Filed: 03/06/2012
No. 10-60342
the Court considered the Board of Immigration Appeals’ (BIA) “comparable-
grounds” rule for determining whether to summarily deny deportable aliens’
applications for discretionary waivers under former § 212(c)1 of the Immigration
and Nationality Act. The Court held that the comparable-grounds rule is
arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. §
706(2)(A). Judulang, 132 S. Ct. at 479. In this case, the BIA relied on the
comparable-grounds rule in denying Petitioner Khalid Umer individual
consideration of his § 212(c) application. Judulang does not require the BIA to
give individual consideration to every § 212(c) application filed by a deportable
alien who is otherwise eligible to seek § 212(c) relief. The Supreme Court
explained that “[i]n rejecting th[e] rule, we do not preclude the BIA from trying
to devise another, equally economical policy respecting eligibility for § 212(c)
relief, so long as it comports with everything held in both this decision and St.
Cyr.” Id. at 490. Accordingly, it suffices to send this case back to the BIA to
reconsider its decision regarding whether Umer’s application should be
considered on its individual merits.
We GRANT Umer’s petition for review, VACATE the BIA’s judgment, and
REMAND the case to the BIA for reconsideration in light of Judulang.
1
8 U.S.C. § 1182(c) (1994).
2