Judulang v. Holder

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JUDULANG v. HOLDER, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 10–694. Argued October 12, 2011—Decided December 12, 2011
Federal immigration law governs both the exclusion of aliens from ad-
mission to this country and the deportation of aliens previously ad-
mitted. Before 1996, these two kinds of action occurred in different
procedural settings; since then, the Government has employed a uni-
fied “removal proceeding” for exclusions and deportations alike. But
the immigration laws have always provided separate lists of substan-
tive grounds for the two actions. One list specifies what crimes ren-
der an alien excludable, see 8 U. S. C. §1182(a), while another—
sometimes overlapping and sometimes divergent—list specifies what
crimes render an alien deportable, see §1227(a).
Until repealed in 1996, §212(c) of the Immigration and Nationality
Act permitted the Attorney General to grant discretionary relief to an
excludable alien, if the alien had lawfully resided in the United
States for at least seven years before temporarily leaving the country
and if the alien was not excludable on one of two specified grounds.
By its terms, §212(c) applied only in exclusion proceedings, but the
Board of Immigration Appeals (BIA) extended it decades ago to de-
portation proceedings as well. Although Congress substituted a nar-
rower discretionary remedy for §212(c) in 1996, see §1229b, §212(c)’s
broader relief remains available to an alien whose removal is based
on a guilty plea entered before §212(c)’s repeal, INS v. St. Cyr, 533
U. S. 289, 326.
In deciding whether to exclude such an alien, the BIA first checks
the statutory ground identified by the Department of Homeland Se-
curity (DHS) as the basis for exclusion. Unless that ground is one of
the two falling outside §212(c)’s scope, the alien is eligible for discre-
tionary relief. The BIA then determines whether to grant relief
based on such factors as the seriousness of the offense.
2 JUDULANG v. HOLDER
Syllabus
This case concerns the BIA’s method for applying §212(c) in the
deportation context. The BIA’s approach, known as the “comparable-
grounds” rule, evaluates whether the charged deportation ground has
a close analogue in the statute’s list of exclusion grounds. If the de-
portation ground consists of a set of crimes “substantially equivalent”
to the set making up an exclusion ground, the alien can seek §212(c)
relief. 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.
Petitioner Judulang, who has lived continuously in the United
States as a lawful permanent resident since 1974, pleaded guilty to
voluntary manslaughter in 1988. After he pleaded guilty to another
crime in 2005, DHS commenced a deportation action, charging him
with having committed an “aggravated felony” involving “a crime of
violence” based on his manslaughter conviction. The Immigration
Judge ordered Judulang’s deportation, and the BIA affirmed, finding
Judulang ineligible for §212(c) relief because the “crime of violence”
deportation ground is not comparable to any exclusion ground. The
Ninth Circuit, having previously upheld the BIA’s comparable-
grounds rule, denied Judulang’s petition for review.
Held: The BIA’s policy for applying §212(c) in deportation cases is “arbi-
trary and capricious” under the Administrative Procedure Act, 5
U. S. C. §706(2)(A). Pp. 9–21.
(a) While agencies have expertise and experience in administering
their statutes that no court may properly ignore, courts retain a nar-
row but important role in ensuring that agencies have engaged in
reasoned decisionmaking. Thus, in reviewing the BIA’s action, this
Court must assess, among other matters, “whether the decision was
based on a consideration of the relevant factors and whether there
has been a clear error of judgment.” Motor Vehicle Mfrs. Assn. of
United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S.
29, 43. That task involves examining the reasons for agency deci-
sions, or the absence of such reasons.
The comparable-grounds approach cannot survive scrutiny under
this standard. By hinging a deportable alien’s eligibility for discre-
tionary relief on the chance correspondence between statutory cate-
gories—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. Pp. 9–10.
(b) Even if the BIA has legitimate reasons for limiting §212(c)’s
scope in deportation cases, it must do so in some rational way. In
other words, the BIA must use an approach that is tied to the pur-
poses of the immigration laws or the appropriate operation of the
immigration system. The comparable-grounds rule has no connection
Cite as: 565 U. S. ____ (2011) 3
Syllabus
to these factors. Instead, it makes §212(c) eligibility turn on an irrel-
evant comparison between statutory provisions. Whether the set of
offenses in a particular deportation ground lines up with the set in an
exclusion ground has nothing to do with whether a deportable alien
whose prior conviction falls within both grounds merits the ability to
stay in this country. Here, Judulang was found ineligible for §212(c)
relief because the “crime of violence” deportation ground includes a
few offenses—simple assault, minor burglary, and unauthorized use
of a vehicle—not found in the similar moral turpitude exclusion
ground. But the inclusion of simple assaults and minor burglaries in
the deportation ground is irrelevant to the merits of Judulang’s case.
The BIA’s approach has other odd features. In applying the com-
parable-grounds rule, the BIA has denied relief to aliens whose de-
portation ground fits entirely within a much broader exclusion
ground. Yet providing relief in exclusion cases to a broad class of al-
iens hardly justifies denying relief in deportation cases to a subset of
that group. In addition, the outcome of the comparable-grounds
analysis may itself rest on an arbitrary decision. An alien’s prior
conviction could fall within a number of deportation grounds, only
one of which corresponds to an exclusion ground. In such cases, an
alien’s eligibility for relief would hinge on an individual official’s deci-
sion as to which deportation ground to charge. An alien appearing
before one official may suffer deportation, while an identically situat-
ed alien appearing before another may gain the right to stay in this
country.
In short, the comparable-grounds approach does not rest on any
factors relevant to whether an alien should be deported. Instead, it
turns deportation decisions into a “sport of chance.” Rosenberg v.
Fleuti, 374 U. S. 449, 455. That is what the APA’s “arbitrary and ca-
pricious” standard is designed to prevent. Pp. 10–15.
(c) The Government’s arguments in defense of the comparable-
grounds rule are not persuasive. First, §212(c)’s text does not sup-
port the rule. That section cannot provide a textual anchor for any
method of providing discretionary relief in deportation cases because
it addresses only exclusion. Second, the history of the comparable-
grounds rule does not work in the Government’s favor. The BIA re-
peatedly vacillated in its method for applying §212(c) to deportable
aliens, settling on the current rule only in 2005. Third, the Govern-
ment’s claim that the comparable-grounds rule saves time and money
falls short. Cost may be an important factor for agencies to consider
in many contexts, but cheapness alone cannot save an arbitrary
agency policy. In any event, it is unclear that the comparable-
grounds rule saves money when compared with alternative ap-
proaches. Pp. 16–21.
4 JUDULANG v. HOLDER
Syllabus
249 Fed. Appx. 499, reversed and remanded.
KAGAN, J., delivered the opinion for a unanimous Court.
Cite as: 565 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–694
_________________
JOEL JUDULANG, PETITIONER v. ERIC H. HOLDER,
JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[December 12, 2011]
JUSTICE KAGAN delivered the opinion of the Court.
This case concerns the Board of Immigration Appeals’
(BIA or Board) policy for deciding when resident aliens
may apply to the Attorney General for relief from deporta-
tion under a now-repealed provision of the immigration
laws. We hold that the BIA’s approach is arbitrary and
capricious.
The legal background of this case is complex, but the
principle guiding our decision is anything but. When an
administrative agency sets policy, it must provide a rea-
soned explanation for its action. That is not a high bar,
but it is an unwavering one. Here, the BIA has failed to
meet it.
I
A
Federal immigration law governs both the exclusion of
aliens from admission to this country and the deportation
of aliens previously admitted. Before 1996, these two
kinds of action occurred in different procedural settings,
with an alien seeking entry (whether for the first time or
upon return from a trip abroad) placed in an “exclusion
2 JUDULANG v. HOLDER
Opinion of the Court
proceeding” and an alien already here channeled to a
“deportation proceeding.” See Landon v. Plasencia, 459
U. S. 21, 25–26 (1982) (comparing the two). Since that
time, the Government has used a unified procedure,
known as a “removal proceeding,” for exclusions and de-
portations alike. See 8 U. S. C. §§1229, 1229a. But the
statutory bases for excluding and deporting aliens have
always varied. Now, as before, the immigration laws
provide two separate lists of substantive grounds, princi-
pally involving criminal offenses, for these two actions.
One list specifies what kinds of crime render an alien
excludable (or in the term the statute now uses, “inadmis-
sible”), see §1182(a) (2006 ed., Supp. IV), while another—
sometimes overlapping and sometimes divergent—list
specifies what kinds of crime render an alien deportable
from the country, see §1227(a).
An additional, historic difference between exclusion
and deportation cases involved the ability of the Attorney
General to grant an alien discretionary relief. Until re-
pealed in 1996, §212(c) of the Immigration and Nationality
Act, 66 Stat. 187, 8 U. S. C. §1182(c) (1994 ed.), authorized
the Attorney General to admit certain excludable aliens.
See also §136(p) (1926 ed.) (predecessor provision to
§212(c)). The Attorney General could order this relief
when the alien had lawfully resided in the United States
for at least seven years before temporarily leaving the
country, unless the alien was excludable on one of two
specified grounds. See §1182(c) (1994 ed.).1 But by its
——————
1 Therelevant part of §212(c), in the version of the exclusion statute
all parties use, read as follows:
“Aliens lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of deportation,
and who are returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of the Attorney
General without regard to the provisions of subsection (a) of this section
(other than paragraphs (3) and (9)(C)).” 8 U. S. C. §1182(c) (1994 ed.).
Cite as: 565 U. S. ____ (2011) 3
Opinion of the Court
terms, §212(c) did not apply when an alien was being
deported.
This discrepancy threatened to produce an odd result in
a case called Matter of L-, 1 I. & N. Dec. 1 (1940), leading
to the first-ever grant of discretionary relief in a deporta-
tion case. L- was a permanent resident of the United
States who had been convicted of larceny. Although L-’s
crime made him inadmissible, he traveled abroad and
then returned to the United States without any immigra-
tion official’s preventing his entry. A few months later,
the Government caught up with L- and initiated a depor-
tation action based on his larceny conviction. Had the
Government apprehended L- at the border a short while
earlier, he would have been placed in an exclusion pro-
ceeding where he could have applied for discretionary
relief. But because L- was instead in a deportation pro-
ceeding, no such relief was available. Responding to this
apparent anomaly, Attorney General Robert Jackson (on
referral of the case from the BIA) determined that L- could
receive a waiver: L-, Jackson said, “should be permitted to
make the same appeal to discretion that he could have
made if denied admission” when returning from his recent
trip. Id., at 6. In accord with this decision, the BIA
adopted a policy of allowing aliens in deportation proceed-
ings to apply for discretionary relief under §212(c) when-
ever they had left and reentered the country after be-
coming deportable. See Matter of S-, 6 I. & N. Dec. 392,
394–396 (1954).
But this approach created another peculiar asymmetry:
Deportable aliens who had traveled abroad and returned
could receive §212(c) relief, while those who had never left
——————
The parenthetical clause of this section prevented the Attorney Gen-
eral from waiving exclusion for aliens who posed a threat to national
security, §1182(a)(3), and aliens who engaged in international child
abduction, §1182(a)(9)(C).
4 JUDULANG v. HOLDER
Opinion of the Court
could not. In Francis v. INS, 532 F. 2d 268 (1976), the
Court of Appeals for the Second Circuit concluded that
this disparity violated equal protection. Id., at 273 (“[A]n
alien whose ties with this country are so strong that he
has never departed after his initial entry should receive at
least as much consideration as an individual who may
leave and return from time to time”). The BIA acquiesced
in the Second Circuit’s decision, see Matter of Silva, 16
I. & N. Dec. 26 (1976), thus applying §212(c) in deporta-
tion proceedings regardless of an alien’s travel history.
All this might have become academic when Congress
repealed §212(c) in 1996 and substituted a new discretion-
ary remedy, known as “cancellation of removal,” which is
available in a narrow range of circumstances to excludable
and deportable aliens alike. See 8 U. S. C. §1229b. But in
INS v. St. Cyr, 533 U. S. 289, 326 (2001), this Court con-
cluded that the broader relief afforded by §212(c) must
remain available, on the same terms as before, to an alien
whose removal is based on a guilty plea entered before
§212(c)’s repeal. We reasoned that aliens had agreed to
those pleas with the possibility of discretionary relief in
mind and that eliminating this prospect would ill comport
with “ ‘familiar considerations of fair notice, reasonable
reliance, and settled expectations.’ ” Id., at 323 (quoting
Landgraf v. USI Film Products, 511 U. S. 244, 270 (1994)).
Accordingly, §212(c) has had an afterlife for resident
aliens with old criminal convictions.
When the BIA is deciding whether to exclude such an
alien, applying §212(c) is an easy matter. The Board
first checks the statutory ground that the Department
of Homeland Security (DHS) has identified as the basis
for exclusion; the Board may note, for example, that
DHS has charged the alien with previously committing
a “crime involving moral turpitude,” see 8 U. S. C.
§1182(a)(2)(A)(i)(I). Unless the charged ground is one of
the pair falling outside §212(c)’s scope, see n. 1, supra, the
Cite as: 565 U. S. ____ (2011) 5
Opinion of the Court
alien is eligible for discretionary relief. The Board then
determines whether to grant that relief based on such
factors as “the seriousness of the offense, evidence of
either rehabilitation or recidivism, the duration of the
alien’s residence, the impact of deportation on the family,
the number of citizens in the family, and the character of
any service in the Armed Forces.” St. Cyr, 533 U. S., at
296, n. 5.
By contrast, when the BIA is deciding whether to deport
an alien, applying §212(c) becomes a tricky business.
Recall that §212(c) applies on its face only to exclusion
decisions. So the question arises: How is the BIA to de-
termine when an alien should receive §212(c) relief in the
deportation context?
One approach that the BIA formerly used considered
how the alien would fare in an exclusion proceeding. To
perform this analysis, the Board would first determine
whether the criminal conviction making the alien deporta-
ble fell within a statutory ground for exclusion. Almost all
convictions did so, largely because the “crime involving
moral turpitude” ground encompasses so many offenses.2
Assuming that threshold inquiry were met, the Board
would mimic its approach in exclusion cases—first making
sure the statutory ground at issue was not excepted from
§212(c) and then conducting the multi-factor analysis. See
Matter of Tanori, 15 I. & N. Dec. 566, 567–568 (1976);
In re Manzueta, No. A93 022 672, 2003 WL 23269892(BIA, Dec. 1, 2003).
A second approach is the one challenged here; definitive-
ly adopted in 2005 (after decades of occasional use), it
often is called the “comparable-grounds” rule. See, e.g., De
la Rosa v. U. S. Attorney General, 579 F. 3d 1327, 1332
——————
2 Firearms offenses are the most significant crimes falling outside the
statutory grounds for exclusion. See Matter of Hernandez-Casillas, 20
I. & N. Dec. 262, 282, n. 4 (1990).
6 JUDULANG v. HOLDER
Opinion of the Court
(CA11 2009). That approach evaluates whether the
ground for deportation charged in a case has a close ana-
logue in the statute’s list of exclusion grounds. See In re
Blake, 23 I. & N. Dec. 722, 728 (2005); In re Brieva-Perez,
23 I. & N. Dec. 766, 772–773 (2005).3 If the deportation
ground consists of a set of crimes “substantially equiva-
lent” to the set of offenses making up an exclusion ground,
then the alien can seek §212(c) relief. Blake, 23 I. & N.
Dec., at 728. But if the deportation ground charged covers
significantly different or more or fewer offenses than any
exclusion ground, the alien is not eligible for a waiver.
Such a divergence makes §212(c) inapplicable even if the
particular offense committed by the alien falls within an
exclusion ground.
Two contrasting examples from the BIA’s cases
may help to illustrate this approach. Take first an
alien convicted of conspiring to distribute cocaine, whom
DHS seeks to deport on the ground that he has commit-
ted an “aggravated felony” involving “illicit trafficking
in a controlled substance.” 8 U. S. C. §§1101(a)(43)(B),
1227(a)(2)(A)(iii). Under the comparable-grounds rule, the
immigration judge would look to see if that deportation
ground covers substantially the same offenses as an exclu-
sion ground. And according to the BIA in Matter of Meza,
20 I. & N. Dec. 257 (1991), the judge would find an ade-
quate match—the exclusion ground applicable to aliens
who have committed offenses “relating to a controlled
substance,” 8 U. S. C. §§1182(a)(2)(A)(i)(II) and (a)(2)(C).
Now consider an alien convicted of first-degree sexual
abuse of a child, whom DHS wishes to deport on the
ground that he has committed an “aggravated felony”
——————
3 Blake
and Brieva-Perez clarified a 2004 regulation issued by the BIA
stating that an alien is ineligible for §212(c) relief when deportable “on
a ground which does not have a statutory counterpart in section 212.”
8 CFR §1212.3(f)(5) (2010).
Cite as: 565 U. S. ____ (2011) 7
Opinion of the Court
involving “sexual abuse of a minor.” §§1101(a)(43)(A),
1227(a)(2)(A)(iii). May this alien seek §212(c) relief ?
According to the BIA, he may not do so—not because his
crime is too serious (that is irrelevant to the analysis), but
instead because no statutory ground of exclusion covers
substantially the same offenses. To be sure, the alien’s
own offense is a “crime involving moral turpitude,” 8
U. S. C. §1182(a)(2)(A)(i)(I), and so fits within an exclusion
ground. Indeed, that will be true of most or all offenses
included in this deportation category. See supra, at 5.
But on the BIA’s view, the “moral turpitude” exclusion
ground “addresses a distinctly different and much broader
category of offenses than the aggravated felony sexual
abuse of a minor charge.” Blake, 23 I. & N. Dec., at 728.
And the much greater sweep of the exclusion ground
prevents the alien from seeking discretionary relief from
deportation.4
Those mathematically inclined might think of the
comparable-grounds approach as employing Venn dia-
grams. Within one circle are all the criminal offenses com-
posing the particular ground of deportation charged. Within
other circles are the offenses composing the various exclu-
sion grounds. When, but only when, the “deportation
circle” sufficiently corresponds to one of the “exclusion
circles” may an alien apply for §212(c) relief.
——————
4 Careful readers may note that the example involving controlled
substances offered in the last paragraph also involves an exclusion
ground that sweeps more broadly than the deportation ground charged.
The deportation ground requires “trafficking” in a controlled substance,
whereas the exclusion ground includes all possession offenses as well.
The BIA nonetheless held in Meza that the degree of overlap between
the two grounds was sufficient to make the alien eligible for §212(c)
relief. That holding reveals the broad discretion that the BIA currently
exercises in deciding when two statutory grounds are comparable
enough.
8 JUDULANG v. HOLDER
Opinion of the Court
B
Petitioner Joel Judulang is a native of the Philippines
who entered the United States in 1974 at the age of eight.
Since that time, he has lived continuously in this country
as a lawful permanent resident. In 1988, Judulang took
part in a fight in which another person shot and killed
someone. Judulang was charged as an accessory and
eventually pleaded guilty to voluntary manslaughter. He
received a 6-year suspended sentence and was released on
probation immediately after his plea.
In 2005, after Judulang pleaded guilty to another crimi-
nal offense (this one involving theft), DHS 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. 8
U. S. C. §§1101(a)(43)(F), 1227(a)(2)(A)(iii).5 The Immi-
gration Judge ordered Judulang’s deportation, and the
BIA affirmed. As part of its decision, the BIA considered
whether Judulang could apply for §212(c) relief. It held
that he could not do so because the “crime of violence”
deportation ground is not comparable to any exclusion
ground, including the one for crimes involving moral
turpitude. App. to Pet. for Cert. 8a. The Court of Appeals
for the Ninth Circuit denied Judulang’s petition for review
in reliance on circuit precedent upholding the BIA’s
comparable-grounds approach. Judulang v. Gonzales,
249 Fed. Appx. 499, 502 (2007) (citing Abebe v. Gonzales,
493 F. 3d 1092 (2007)).
We granted certiorari, 563 U. S. ___ (2011), to resolve a
circuit split on the approach’s validity.6 We now reverse.
——————
5 DHS also charged two other grounds for deportation, but the BIA
did not rule on those grounds and they are not before us.
6 Compare Blake v. Carbone, 489 F. 3d 88, 103 (CA2 2007) (rejecting
the BIA’s approach and holding instead that “[i]f the offense that
renders [an alien] deportable would render a similarly situated [alien]
excludable, the deportable [alien] is eligible for a waiver of deporta-
Cite as: 565 U. S. ____ (2011) 9
Opinion of the Court
II
This case requires us to decide whether the BIA’s policy
for applying §212(c) in deportation cases is “arbitrary
[or] capricious” under the Administrative Procedure Act
(APA), 5 U. S. C. §706(2)(A).7 The scope of our review
under this standard is “narrow”; as we have often recog-
nized, “a court is not to substitute its judgment for that of
the agency.” Motor Vehicle Mfrs. Assn. of United States,
Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29,
43 (1983); see Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among
them, have expertise and experience in administering
their statutes that no court can properly ignore. But
courts retain a role, and an important one, in ensuring
that agencies have engaged in reasoned decisionmaking.
When reviewing an agency action, we must assess, among
other matters, “ ‘whether the decision was based on a
consideration of the relevant factors and whether there
——————
tion”), with Koussan v. Holder, 556 F. 3d 403, 412–414 (CA6 2009)
(upholding the comparable-grounds policy); Caroleo v. Gonzales, 476
F. 3d 158, 162–163, 168 (CA3 2007) (same); Kim v. Gonzales, 468 F. 3d
58, 62–63 (CA1 2006) (same).
7 The Government urges us instead to analyze this case under the
second step of the test we announced in Chevron U. S. A. Inc. v. Natu-
ral Resources Defense Council, Inc., 467 U. S. 837 (1984), to govern
judicial review of an agency’s statutory interpretations. See Brief for
Respondent 19. Were we to do so, our analysis would be the same,
because under Chevron step two, we ask whether an agency interpreta-
tion is “ ‘arbitrary or capricious in substance.’ ” Mayo Foundation for
Medical Ed. and Research v. United States, 562 U. S. ___ , ___ (2011)
(slip op., at 7) (quoting Household Credit Services, Inc. v. Pfennig, 541
U. S. 232, 242 (2004)). But we think the more apt analytic framework
in this case is standard “arbitrary [or] capricious” review under the
APA. The BIA’s comparable-grounds policy, as articulated in In re
Blake, 23 I. & N. Dec. 722 (2005) and In re Brieva-Perez, 23 I. & N. Dec.
766 (2005), is not an interpretation of any statutory language—nor
could it be, given that §212(c) does not mention deportation cases, see
infra, at 16–17, and n. 11.
10 JUDULANG v. HOLDER
Opinion of the Court
has been a clear error of judgment.’ ” State Farm, 463
U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-
Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That
task involves examining the reasons for agency deci-
sions—or, as the case may be, the absence of such reasons.
See FCC v. Fox Television Stations, Inc., 556 U. S. 502,
515 (2009) (noting “the requirement that an agency pro-
vide reasoned explanation for its action”).
The BIA has flunked that test here. By hinging a de-
portable 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.
A
The parties here spend much time disputing whether
the BIA must make discretionary relief available to de-
portable and excludable aliens on identical terms. As this
case illustrates, the comparable-grounds approach does
not do so. If Judulang were seeking entry to this country,
he would be eligible for §212(c) relief; voluntary man-
slaughter is “a crime involving moral turpitude,” and so
his conviction falls within an exclusion ground. But Judu-
lang cannot apply for relief from deportation because the
“crime of violence” ground charged in his case does not
match any exclusion ground (including the one for “turpi-
tudinous” crimes). See infra, at 13. Judulang argues that
this disparity is impermissible because any disparity
between excludable and deportable aliens is impermissi-
ble: If an alien may seek §212(c) relief in an exclusion
case, he also must be able to seek such relief in a deporta-
tion case. See Brief for Petitioner 47–51.8 But the Gov-
——————
8 Judulang also argues that the BIA is making an impermissible dis-
tinction between two groups of deportable aliens—those who have
recently left and returned to the country and those who have not.
Cite as: 565 U. S. ____ (2011) 11
Opinion of the Court
ernment notes that the immigration laws have always
drawn distinctions between exclusion and deportation.
See Brief for Respondent 51. And the Government presses
a policy reason for making §212(c) relief more readily
available in exclusion cases. Doing so, it argues, will
provide an incentive for some resident aliens (i.e., those
eligible for a waiver from exclusion, but not deportation) to
report themselves to immigration officials, by applying for
advance permission to exit and reenter the country. In
contrast, applying §212(c) uniformly might lead all aliens
to “try to evade immigration officials for as long as possi-
ble,” because they could in any event “seek [discretionary]
relief if caught.” Id., at 52.
In the end, we think this dispute beside the point, and
we do not resolve it. The BIA may well have legitimate
reasons for limiting §212(c)’s scope in deportation cases.
But still, it must do so in some rational way. If the BIA
proposed to narrow the class of deportable aliens eligible
to seek §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. That is because agency action
must be based on non-arbitrary, “ ‘relevant factors,’ ” State
——————
According to Judulang, the BIA is treating the former as if they were
seeking admission, while applying the “comparable grounds” approach
only to the latter. See Reply Brief for Petitioner 16–18. That is the
kind of distinction the Second Circuit held in Francis v. INS, 532 F. 2d
268 (1976), violated equal protection. See supra, at 3–4. But the
Government contends that it is drawing no such line—that it is apply-
ing the comparable-grounds policy to all deportable aliens. Brief for
Respondent 29. We think the available evidence tends to support the
Government’s representation. See In re Meza-Castillo, No. A091 366
529, 2009 WL 455596 (BIA, Feb. 9, 2009) (applying comparable-grounds
analysis to a deportable alien who had left and returned to the coun-
try); In re Valenzuela-Morales, No. A40 443 512, 2008 WL 2079382(BIA, Apr. 23, 2008) (same). But in light of our holding that the
comparable-grounds approach is arbitrary and capricious, we need not
resolve this dispute about the BIA’s practice.
12 JUDULANG v. HOLDER
Opinion of the Court
Farm, 463 U. S., at 43 (quoting Bowman Transp., 419
U. S., at 285), which here means that the BIA’s approach
must be tied, even if loosely, to the purposes of the immi-
gration laws or the appropriate operation of the immigra-
tion system. A method for disfavoring deportable aliens
that bears no relation to these matters—that neither
focuses on nor relates to an alien’s fitness to remain in the
country—is arbitrary and capricious. And that is true
regardless whether the BIA might have acted to limit the
class of deportable aliens eligible for §212(c) relief on
other, more rational bases.
The problem with the comparable-grounds policy is that
it does not impose such a reasonable limitation. Rather
than considering factors that might be thought germane to
the deportation decision, that policy hinges §212(c) eligi-
bility on an irrelevant comparison between statutory
provisions. Recall that the BIA asks whether the set of
offenses in a particular deportation ground lines up with
the set in an exclusion ground. But so what if it does?
Does an alien charged with a particular deportation
ground become more worthy of relief because that ground
happens to match up with another? Or less worthy of
relief because the ground does not? The comparison in no
way changes the alien’s prior offense or his other attrib-
utes and circumstances. So it is difficult to see why that
comparison should matter. Each of these statutory
grounds contains a slew of offenses. Whether each con-
tains the same slew has nothing to do with whether a
deportable alien whose prior conviction falls within both
grounds merits the ability to seek a waiver.9
——————
9 The case would be different if Congress had intended for §212(c)
relief to depend on the interaction of exclusion grounds and deportation
grounds. But the Government has presented us with no evidence to
this effect, nor have we found any. See Blake, 489 F. 3d, at 102 (Con-
gress never contemplated, in drafting the immigration laws, “that its
grounds of deportation would have any connection with the grounds of
Cite as: 565 U. S. ____ (2011) 13
Opinion of the Court
This case well illustrates the point. In commencing
Judulang’s deportation proceeding, the Government
charged him with an “aggravated felony” involving a
“crime of violence” based on his prior manslaughter con-
viction. See App. to Pet. for Cert. 11a–12a. That made
him ineligible for §212(c) relief because the “crime of vio-
lence” deportation ground does not sufficiently overlap
with the most similar exclusion ground, for “crime[s]
involving moral turpitude.” The problem, according to the
BIA, is that the “crime of violence” ground includes a few
offenses—simple assault, minor burglary, and unauthor-
ized use of a vehicle—that the “moral turpitude” ground
does not. See Brieva-Perez, 23 I. & N. Dec., at 772–773;
Tr. of Oral Arg. 28–29, 40–41. But this statutory differ-
ence in no way relates to Judulang—or to most other
aliens charged with committing a “crime of violence.”
Perhaps aliens like Judulang should be eligible for §212(c)
relief, or perhaps they should not. But that determination
is not sensibly made by establishing that simple assaults
and minor burglaries fall outside a ground for exclusion.
That fact is as extraneous to the merits of the case as a
coin flip would be. It makes Judulang no less deserving of
the opportunity to seek discretionary relief—just as its
converse (the inclusion of simple assaults and burglaries
in the “moral turpitude” exclusion ground) would make
him no more so.
Or consider a different headscratching oddity of the
comparable-grounds approach—that it may deny §212(c)
eligibility to aliens whose deportation ground fits entirely
inside an exclusion ground. The BIA’s Blake decision,
noted earlier, provides an example. See supra, at 6–7.
The deportation ground charged was “aggravated felony”
involving “sexual abuse of a minor”; the closest exclusion
ground was, once again, a “crime [of] moral turpitude.” 23
——————
exclusion” in the application of §212(c)); see also infra, at 16–17.
14 JUDULANG v. HOLDER
Opinion of the Court
I. & N. Dec., at 727. Here, the BIA’s problem was not that
the deportation ground covered too many offenses; all or
virtually all the crimes within that ground also are crimes
of moral turpitude. Rather, the BIA objected that the
deportation ground covered too few crimes—or put oppo-
sitely, that “the moral turpitude ground of exclusion ad-
dresses a . . . much broader category of offenses.” Id., at
728. But providing relief in exclusion cases to a broad
class of aliens hardly justifies denying relief in deportation
cases to a subset of that group.10 (The better argument
would surely be the reverse—that giving relief in the one
context supports doing so in the other.) Again, we do not
say today that the BIA must give all deportable aliens
meeting §212(c)’s requirements the chance to apply for a
waiver. See supra, at 11–12. The point is instead that the
BIA cannot make that opportunity turn on the meaning-
less matching of statutory grounds.
And underneath this layer of arbitrariness lies yet
another, because the outcome of the Board’s comparable-
grounds analysis itself may rest on the happenstance of an
immigration official’s charging decision. This problem
arises because an alien’s prior conviction may fall within a
number of deportation grounds, only one of which corre-
sponds to an exclusion ground. Consider, for example, an
alien who entered the country in 1984 and commit-
ted voluntary manslaughter in 1988. That person could
be charged (as Judulang was) with an “aggravated fel-
ony” involving a “crime of violence,” see 8 U. S. C.
§§1101(a)(43)(F), 1227(a)(2)(A)(iii). If so, the alien could
not seek a waiver because of the absence of a comparable
exclusion ground. But the alien also could be charged
——————
10 Perhaps that is why the BIA declined to apply similar reasoning in
Meza—a case also involving an exclusion ground that sweeps more
broadly than a deportation ground (although not to the same extent as
in Blake). See supra, at 6.
Cite as: 565 U. S. ____ (2011) 15
Opinion of the Court
with “a crime involving moral turpitude committed within
five years . . . after the date of admission,” see
§1227(a)(2)(A)(i)(I). And if that were the deportation
charge, the alien could apply for relief, because the ground
corresponds to the “moral turpitude” ground used in ex-
clusion cases. See In re Salmon, 16 I. & N. Dec. 734(1978). So everything hangs on the charge. And the
Government has provided no reason to think that immi-
gration officials must adhere to any set scheme in deciding
what charges to bring, or that those officials are exercising
their charging discretion with §212(c) in mind. See Tr. of
Oral Arg. 34–36. So at base everything hangs on the
fortuity of an individual official’s decision. An alien ap-
pearing before one official may suffer deportation; an
identically situated alien appearing before another may
gain the right to stay in this country.
In a foundational deportation case, this Court recog-
nized the high stakes for an alien who has long resided in
this country, and reversed an agency decision that would
“make his right to remain here dependent on circumstan-
ces so fortuitous and capricious.” Delgadillo v. Carmichael,
332 U. S. 388, 391 (1947). We think the policy before us
similarly flawed. The comparable-grounds approach does
not rest on any factors relevant to whether an alien (or
any group of aliens) should be deported. It instead distin-
guishes among aliens—decides who should be eligible for
discretionary relief and who should not—solely by compar-
ing the metes and bounds of diverse statutory categories
into which an alien falls. The resulting Venn diagrams
have no connection to the goals of the deportation process
or the rational operation of the immigration laws. Judge
Learned Hand wrote in another early immigration case
that deportation decisions cannot be made a “sport of
chance.” See Di Pasquale v. Karnuth, 158 F. 2d 878, 879
(CA2 1947) (quoted in Rosenberg v. Fleuti, 374 U. S. 449,
455 (1963)). That is what the comparable-grounds rule
16 JUDULANG v. HOLDER
Opinion of the Court
brings about, and that is what the APA’s “arbitrary and
capricious” standard is designed to thwart.
B
The Government makes three arguments in defense of
the comparable-grounds rule—the first based on statutory
text, the next on history, the last on cost. We find none of
them persuasive.
1
The Government initially contends that the comparable-
grounds approach is more faithful to “the statute’s lan-
guage,” Brief for Respondent 21—or otherwise said, that
“lifting that limit ‘would take immigration practice even
further from the statutory text,’ ” id., at 22 (quoting Matter
of Hernandez-Casillas, 20 I. & N. Dec. 262, 287 (1990)). In
the Government’s view, §212(c) is “phrased in terms of
waiving statutorily specified grounds of exclusion”; that
phrasing, says the Government, counsels a comparative
analysis of grounds when applying §212(c) in the deporta-
tion context. Brief for Respondent 21; see Tr. of Oral
Arg. 34 (“[T]he reason [the comparable-grounds approach]
makes sense is because the statute only provides for relief
from grounds of . . . exclusion”).
The first difficulty with this argument is that it is based
on an inaccurate description of the statute. Section 212(c)
instructs that certain resident aliens “may be admitted in
the discretion of the Attorney General” notwithstanding
any of “the provisions of subsection (a) . . . (other than
paragraphs (3) and (9)(C)).” 8 U. S. C. §1182(c) (1994 ed.).
Subsection (a) contains the full list of exclusion grounds;
paragraphs (3) and (9)(C) (which deal with national secu-
rity and international child abduction) are two among
these. What §212(c) actually says, then, is that the Attor-
ney General may admit any excludable alien, except if
the alien is charged with two specified grounds. And that
Cite as: 565 U. S. ____ (2011) 17
Opinion of the Court
means that once the Attorney General determines that
the alien is not being excluded for those two reasons, the
ground of exclusion no longer matters. At that point, the
alien is eligible for relief, and the thing the Attorney Gen-
eral waives is not a particular exclusion ground, but the
simple denial of entry. So the premise of the Govern-
ment’s argument is wrong. And if the premise, so too the
conclusion—that is, because §212(c)’s text is not “phrased
in terms of waiving statutorily specified grounds of exclu-
sion,” Brief for Respondent 21, it cannot counsel a search
for corresponding grounds of deportation.
More fundamentally, the comparable-grounds approach
would not follow from §212(c) even were the Government
right about the section’s phrasing. That is because §212(c)
simply has nothing to do with deportation: The provision
was not meant to interact with the statutory grounds for
deportation, any more than those grounds were designed
to interact with the provision. Rather, §212(c) refers
solely to exclusion decisions; 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. Cf., e.g., Matter of L-, 1 I. & N.
Dec., at 5; see also supra, at 3–4.11 Accordingly, the text of
§212(c), whether or not phrased in terms of “waiving
grounds of exclusion,” cannot support the BIA’s use of the
——————
11 Congress amended §212(c), just five months before repealing it, to
include a first-time reference to deportation cases. That amendment
prohibited the Attorney General from granting discretionary relief to
aliens deportable on several specified grounds. See Antiterrorism and
Effective Death Penalty Act of 1996, 110 Stat. 1277 (effective Apr. 24,
1996). The change does not affect our analysis, nor does the Govern-
ment argue it should. As the Government notes, the amendment “did
not speak to the viability of the Board’s” comparable-grounds rule, but
instead made categorically ineligible for §212(c) relief “those deportable
by reason of certain crimes.” Brief for Respondent 20. Presumably,
Congress thought those crimes particularly incompatible with an
alien’s continued residence in this country.
18 JUDULANG v. HOLDER
Opinion of the Court
comparable-grounds rule—or, for that matter, any other
method for extending discretionary relief to deportation
cases. We well understand the difficulties of operating in
such a text-free zone; indeed, we appreciate the Govern-
ment’s yearning for a textual anchor. But §212(c), no
matter how many times read or parsed, does not provide
one.
2
In disputing Judulang’s contentions, the Government
also emphasizes the comparable-grounds rule’s vintage.
See Brief for Respondent 22–23, 30–43. As an initial
matter, we think this a slender reed to support a signifi-
cant government policy. Arbitrary agency action becomes
no less so by simple dint of repetition. (To use a prior
analogy, flipping coins to determine §212(c) eligibility
would remain as arbitrary on the thousandth try as on the
first.) And longstanding capriciousness receives no special
exemption from the APA. In any event, we cannot detect
the consistency that the BIA claims has marked its ap-
proach to this issue. To the contrary, the BIA has repeat-
edly vacillated in its method for applying §212(c) to de-
portable aliens.
Prior to 1984, the BIA endorsed a variety of approaches.
In Matter of T-, 5 I. & N. Dec. 389, 390 (1953), for example,
the BIA held that an alien was not eligible for §212(c)
relief because her “ground of deportation” did not appear
in the exclusion statute. That decision anticipated the
comparable-grounds approach that the BIA today uses.
But in Tanori, the BIA pronounced that a deportable alien
could apply for a waiver because “the same facts”—in that
case, a marijuana conviction—would have allowed him to
seek §212(c) relief in an exclusion proceeding. 15 I. & N.
Dec., at 568. That approach is more nearly similar to the
one Judulang urges here. And then, in Matter of Grana-
dos, 16 I. & N. Dec. 726, 728 (1979), the BIA tried to have
Cite as: 565 U. S. ____ (2011) 19
Opinion of the Court
it both ways: It denied §212(c) eligibility both because the
deportation ground charged did not correspond to, and
because the alien’s prior conviction did not fall within, a
waivable ground of exclusion. In short, the BIA’s cases
were all over the map.
The Government insists that the BIA imposed order in
Matter of Wadud, 19 I. & N. Dec. 182, 185–186 (1984),
when it held that a deportable alien could not seek §212(c)
relief unless the deportation ground charged had an “anal-
ogous ground of inadmissibility.” See Brief for Respondent
40–41. But the BIA’s settlement, if any, was fleeting.
Just seven years later, 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).” Hernandez-
Casillas, 20 I. & N. Dec., at 266. That new rule turned the
comparable-grounds approach inside-out, allowing aliens
to seek §212(c) relief in deportation cases except when the
ground charged corresponded to an exclusion ground that
could not be waived. To be sure, the Attorney General (on
referral of the case from the BIA), disavowed this position
in favor of the more standard version of the comparable-
grounds rule. Id., at 287. But even while doing so, the
Attorney General stated that “an alien subject to deporta-
tion must have the same opportunity to seek discretionary
relief as an alien . . . subject to exclusion.” Ibid. That
assertion is exactly the one Judulang makes in this case;
it is consonant not with the comparable-grounds rule the
BIA here defends, but instead with an inquiry into wheth-
er an alien’s prior conviction falls within an exclusion
ground.
Given these mixed signals, it is perhaps not surprising
that the BIA continued to alternate between approaches in
the years that followed. Immediately after the Attorney
General’s opinion in Hernandez-Casillas, the BIA en-
20 JUDULANG v. HOLDER
Opinion of the Court
dorsed the comparable-grounds approach on several occa-
sions. See Meza, 20 I. & N. Dec., at 259; Matter of Monte-
negro, 20 I. & N. Dec. 603, 604–605 (1992); Matter of
Gabryelsky, 20 I. & N. Dec. 750, 753–754 (1993); In re
Esposito, 21 I. & N. Dec. 1, 6–7 (1995); In re Jimenez-
Santillano, 21 I. & N. Dec. 567, 571–572 (1996). But just
a few years later, the BIA issued a series of unpublished
opinions that asked only whether a deportable alien’s
prior conviction fell within an exclusion ground. See, e.g.,
In re Manzueta, No. A93 022 672, 2003 WL 23269892(Dec. 1, 2003). Not until the BIA’s decisions in Blake and
Brieva-Perez did the pendulum stop swinging. That histo-
ry hardly supports the Government’s view of a consistent
agency practice.12
3
The Government finally argues that the comparable-
grounds rule saves time and money. The Government
claims that comparing deportation grounds to exclusion
grounds can be accomplished in just a few “precedential
decision[s],” which then can govern broad swaths of cases.
See Brief for Respondent 46. By contrast, the Government
argues, Judulang’s approach would force it to determine
whether each and every crime of conviction falls within an
exclusion ground. Further, the Government contends that
Judulang’s approach would grant eligibility to a greater
——————
12 Because we find the BIA’s prior practice so unsettled, we likewise
reject Judulang’s argument that Blake and Brieva-Perez were imper-
missibly retroactive. To succeed on that theory, Judulang would have
to show, at a minimum, that in entering his guilty plea, he had reason-
ably relied on a legal rule from which Blake and Brieva-Perez departed.
See Landgraf v. USI Film Products, 511 U. S. 244, 270 (1994) (stating
that retroactivity analysis focuses on “considerations of fair notice,
reasonable reliance, and settled expectations”). The instability of the
BIA’s prior practice prevents Judulang from making this showing:
The BIA sometimes recognized aliens in Judulang’s position as eligible
for §212(c) relief, but sometimes did not.
Cite as: 565 U. S. ____ (2011) 21
Opinion of the Court
number of deportable aliens, which in turn would force the
Government to make additional individualized assess-
ments of whether to actually grant relief. Id., at 47.
Once again, the Government’s rationale comes up short.
Cost is an important factor for agencies to consider in
many contexts. But cheapness alone cannot save an arbi-
trary agency policy. (If it could, flipping coins would be a
valid way to determine an alien’s eligibility for a waiver.)
And in any event, we suspect the Government exaggerates
the cost savings associated with the comparable-grounds
rule. Judulang’s proposed approach asks immigration
officials only to do what they have done for years in exclu-
sion cases; that means, for one thing, that officials can
make use of substantial existing precedent governing
whether a crime falls within a ground of exclusion. And
Judulang’s proposal may not be the only alternative to the
comparable-grounds rule. See supra, at 11–12. In reject-
ing that rule, we do not preclude the BIA from trying to
devise another, equally economical policy respecting eligi-
bility for §212(c) relief, so long as it comports with every-
thing held in both this decision and St. Cyr.
III
We must reverse an agency policy when we cannot
discern a reason for it. That is the trouble in this case.
The BIA’s comparable-grounds rule is unmoored from the
purposes and concerns of the immigration laws. It allows
an irrelevant comparison between statutory provisions to
govern a matter of the utmost importance—whether law-
ful resident aliens with longstanding ties to this country
may stay here. And contrary to the Government’s protes-
tations, it is not supported by text or practice or cost con-
siderations. The BIA’s approach therefore cannot pass
muster under ordinary principles of administrative law.
The judgment of the Ninth Circuit is hereby reversed,
and the case is remanded for further proceedings con-
sistent with this opinion.
It is so ordered.