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Supreme Court Ends Comparable Grounds Doctrine for 212(c) Applicants

By Susan Schreiber

Section 212(c) of the INA provides relief from removal to law permanent residents who are deportable for certain criminal convictions.  There are many restrictions regarding eligibility for this form of relief, but at a minimum, the applicant must meet the following criteria:

  • Is an LPR or was an LPR prior to receiving a final order of deportation or removal;
  • Had seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal, or, if the person does not have a final order, had seven years by the time that he or she applies for § 212(c) relief;
  • Pled guilty or nolo contendere to a deportable offense through a plea agreement made before April 1, 1997; and
  • Was otherwise eligible to apply for § 212(c) at the time the plea was made.

In addition, the LPR charged under deportability must establish that there is a comparable ground of inadmissibility in order to be eligible to seek an INA § 212(c) waiver. Under this rule, an LPR charged with crime-based deportability is barred from seeking this waiver if there is no “comparable ground” of inadmissibility.  In re Blake, 23 I&N Dec 722 (BIA 2005).  As applied by the Board, this test precludes eligibility where the charged deportability ground covers more or fewer offenses than any inadmissibility ground, even if the LPR’s offense falls within a ground of inadmissibility.  In Blake, for example, this doctrine was used to defeat  eligibility for a § 212(c) waiver for  an LPR found deportable for an aggravated felony sexual abuse of a minor offense even though such an offense would trigger inadmissibility as a crime of moral turpitude.

In Judulang v Holder, 2011 Lexis 9018 (U.S. Dec. 12, 2011), the Supreme Court unanimously rejected the comparable grounds rule as arbitrary and capricious.  Mr. Judulang, an LPR since 1974, was found deportable for an aggravated felony crime of violence, based on a 1988 voluntary manslaughter conviction in which he received a suspended sentence of six years.  An immigration judge denied Mr. Judulang’s request for a § 212(c) waiver, and this decision was upheld by the BIA, which determined that the crime of violence deportation ground is not comparable to any ground of inadmissibility including the one for crimes of moral turpitude.  The BIA’s decision was subsequently affirmed by the Ninth Circuit Court of Appeals.

In its decision, the Supreme Court described the comparable grounds rule as “unmoored from the purposes and concerns of the immigration laws,” permitting “an irrelevant comparison between statutory provisions to govern a matter of the utmost importance – whether lawful resident aliens with longstanding ties to this country may stay here.”  Judulang at 21.  CLINIC supported an amicus brief submitted in this case and applauds this decision of the Court advancing greater justice and fairness for LPRs.