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Until repealed in 1996, §212(c) of the Immigration and Nationality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.