A recent U.S. Supreme Court case indicates that the Court has little patience for arbitrary policies that result in the deportation of long-standing residents of the United States in an inconsistent and unpredictable manner. In Judulang v. Holder, the Court unanimously found it unlawful — in the justices’ words “arbitrary and capricious” — for the government to deport long-standing residents of this country based on something as arbitrary as the flip of a coin. At the heart of the Court’s decision was a demand that the government apply the particularly severe penalty of deportation on a consistent and predictable basis. The decision in Judulang provides important clues about the type of factors the Court is looking for in deciding whether to review a case on writ of certiorari.

In Judulang, the Board of Immigration Appeals (BIA) ruled that the petitioner, a lawful permanent resident of the United States since 1974, could be deported because he had been convicted of an aggravated felony. The BIA also found Joel Judulang ineligible to seek discretionary relief from deportation under former § 212(c) of the Immigration and Nationality Act. The BIA reached its decision by applying a “comparable-grounds” policy that denied relief under § 212(c) to those seeking relief from deportation but made such relief available to those seeking admission into the country. Judulang argued that the BIA’s policy was arbitrary and capricious because it did not make § 212(c) relief available on a consistent basis — if he could have sought relief while applying to enter this country, he should also be able to seek the same relief in a deportation case.

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