The following argument recap is written by Kevin R. Johnson, Dean of the UC Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies.  He is one of the editors of the ImmigrationProf Blog.

On October 12, the Court heard oral arguments in Judulang v. Holder, a case in which a lawful permanent resident is facing removal based on a criminal conviction.  (I previewed the case for the blog earlier this month, and the transcript of the oral argument is available here.)  Mark Fleming of Wilmer Cutler Pickering Hale and Dorr LLP argued the case for Joel Judulang.  Assistant to the Solicitor General Curtis Gannon argued for the United States.  Although unable to attend the arguments, I offer the following impressions based on reading a transcript of the oral arguments.

In Judulang v. Holder, the United States seeks to remove from the United States a lawful permanent resident who has lived here since 1974, because he was convicted of voluntary manslaughter in 1989.  Former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), provides for a “waiver of excludability,” which allows a noncitizen to enter the country despite a criminal conviction.  Years ago, the courts – the leading case is Francis v. INS (2d Cir. 1976) – required Section 212(c) relief to be available to lawful permanent residents facing deportation as well as those seeking admission into the country.

In a major reform of the Immigration & Nationality Act in 1996, Congress repealed Section 212(c).  The Supreme Court later held that that relief remains available to lawful permanent residents who would have been eligible for it at the time of their convictions.  With a 1989 conviction, Judulang was eligible, and applied, for Section 212(c) relief.  The immigration court denied the waiver and ordered Judulang removed from the United States.  The Board of Immigration Appeals (BIA) affirmed and the Ninth Circuit agreed.  If it stands, the ruling means that lawful permanent residents in circumstances like Judulang’s who have remained in the United States are ineligible for relief from removal, but similarly situated aliens who traveled outside the country could be eligible for Section 212(c) relief.

In his briefs on the merits, Judulang emphasized that, before the BIA’s 2005 rulings in Matter of Blake and Matter of Brieva-Perez, a lawful permanent resident subject to deportation for any criminal conviction, including for an “aggravated felony,” could apply for Section 212(c) relief.  The seminal decision in Francis v. INS laid the groundwork for this practice and held that allowing relief for a criminal conviction for exclusion (i.e., when seeking admission into the country) under Section 212(c) but not for deportation (i.e., when resisting removal from the United States) could not survive rationality review under the Equal Protection Clause.  Judulang contended that the BIA’s change in practice in 2005 is contrary to years of administrative practice and represents an improper retroactive change in the law.  Contrary to Francis v. INS, it makes eligibility for Section 212(c) relief turn on arcane, irrational differences in the exclusion and deportation provisions of the Immigration and Nationality Act that cannot survive minimal constitutional scrutiny.

In its brief, the United States first invoked the ordinary deference accorded to administrative agencies and asserted that the Board reasonably requires that Section 212(c) relief be available to a noncitizen facing deportation only when there is a similarity between the grounds for deportation and grounds of inadmissibility.  The United States also denied that the Board’s 2005 rulings represent a change in the law or that the Board’s interpretation raises equal protection concerns.

From the oral argument transcript, I found it hard to gauge how the Court might decide this case.  Justices Breyer (who aggressively peppered Curtis Gannon for the United States with questions just seconds after he began his argument), Sotomayor, Ginburg, and Kagan all expressed skepticism about the arguments of the United States.  Justice Kagan suggested that the BIA’s position was “arbitrary,” a view with which Justice Ginsburg seemingly agreed.

In contrast, Justices Scalia and Alito seemed just as convinced by the arguments of the United States and dismissive of Judulang’s contentions.

Chief Justice Roberts and Justice Kennedy both asked relatively few questions, none of  which revealed much about their views on the merits.  Justice Thomas’s standard silence was even more inscrutable.

To the extent that the questions revealed much, they suggested that the Justices for the most part viewed the case as a garden-variety statutory interpretation/administrative agency case.  No Justice suggested that this case might be the appropriate one for any broad pronouncements about judicial review of immigration laws.  Only Justice Kennedy even for a moment touched on that issue with a brief disparagement of the constitutional component of the Second Circuit’s decision in Francis v. INS.

The Justices did not ask any questions about the “plenary power” doctrine, an artifact of immigration law that bars judicial review of the U.S. immigration laws.  Except for Justice Kennedy’s brief comment about the constitutional part of that case, little was said about Francis v. INS.  Given the Justices’ failure to pursue questioning on this topic, it seems unlikely that the Supreme Court in Judulang will wade into the realm of the constitutional review of the immigration laws.

Suggesting a narrow approach to deciding the case, Justice Sotomayor raised the “practical question” whether the issue in Judulang v. Holder was likely to frequently recur given that the statute has been repealed and the Section 212(c) cases will slowly but surely diminish in number over time.  Justice Alito expressed interest in how many cases – several hundred, he was told – would be affected by the Court’s decision in the case,

I mentioned in the preview to the oral argument that “[i]If nothing else, Judulang v. Holder is likely to remind Court watchers once again just how complicated the U.S. immigration laws are.”  The oral arguments support my prediction.  At one point, Justice Breyer observed, “I worry we’re in an arcane area of the law.”  Justice Ginsburg stated bluntly “I think this is a very confusing set of decisions” – one was an agency ruling that dated back many decades when Justice Jackson was serving as U.S. Attorney General.

The arguments of the parties confused the Justices as well.  Justice Kagan remarked that the argument of the United States was “far from the statute. . . . miles away from the statute.”

The Justices’ questioning at times betrayed limited experience with the practicalities of immigration law.  Chief Justice Roberts, for example, questioned whether Judulang would rely on the availability of Section 212(c) relief when he pleaded guilty to voluntary manslaughter; the Chief apparently did not recall how important the immigration consequences of a criminal conviction might be to a noncitizen when deciding to accept a plea, which the Court recently recognized in its landmark decision of Padilla v. Kentucky (2010), which held that an ineffective assistance of counsel claim can be based on the failure of an attorney to explain the immigration consequences of a plea.

At various times during oral argument, the Justices did not seem to understand that, even if the noncitizen was not precluded from Section 212(c) relief, the immigration court still could deny the relief on a number of grounds, including a negative exercise of discretion.

In sum, based on the briefing and the oral arguments, my best guess is that the Court will decide Judulang v. Holder as a garden-variety statutory interpretation/administrative agency case and not make any broad pronouncements about the scope of judicial review of the constitutionality of the immigration laws.  If forced to hazard a guess on the likely victor, my instincts tell me that a majority of the Court will decide the case on narrow grounds in favor of Joel Judalang.

Posted in Judulang v. Holder, Featured, Merits Cases

Recommended Citation: Kevin Johnson, Argument recap: Former Section 212(c) relief from removal for lawful permanent residents convicted of aggravated felonies, SCOTUSblog (Oct. 17, 2011, 1:01 PM), http://www.scotusblog.com/2011/10/argument-recap-judulang-v-holder-former-section-212c-relief-from-removal-for-lawful-permanent-residents-convicted-of-aggravated-felonies/