JUDULANG v. HOLDER

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, Washington, 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

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No. 10–694

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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policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws.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 reasoned 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 proceeding” and an alien already here channeled to a “deportation proceeding.” See Landon v. Plasencia, 459 U. S. 21 –26 (1982) (comparing the two). Since that time, the Government has used a unified procedure, known as a “removal proceeding,” for exclusions and deportations 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, principally 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, “inadmissible”), 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 repealed in 1996, §212(c) of the Immigration and Nationality Act, 66Stat. 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 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 deportation case. Lwas 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 immigration official’s preventing his entry. A few months later, the Government caught up with Land initiated a deportation action based on his larceny conviction. Had the Government apprehended Lat the border a short while earlier, he would have been placed in an exclusion proceeding where he could have applied for discretionary relief. But because Lwas instead in a deportation proceeding, no such relief was available. Responding to this apparent anomaly, Attorney General Robert Jackson (on referral of the case from the BIA) determined that Lcould 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 proceedings to apply for discretionary relief under §212(c) whenever they had left and reentered the country after becoming 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 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 deportation 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 discretionary 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 concluded 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 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 determine 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 deportable 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; definitively 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 (CA11 2009). That approach evaluates whether the ground for deportation charged in a case has a close analogue 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 equivalent” 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 committed 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 exclusion ground. And according to the BIA in Matter of Meza, 20 I. & N. Dec. 257 (1991), the judge would find an adequate 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” 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 diagrams. Within one circle are all the criminal offenses composing the particular ground of deportation charged. Within other circles are the offenses composing the various exclusion grounds. When, but only when, the “deportation circle” sufficiently corresponds to one of the “exclusion circles” may an alien apply for §212(c) relief.

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 criminal 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 Immigration 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.

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 recognized, “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 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 decisions—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 provide reasoned explanation for its action”).

The BIA has flunked that test here. By hinging a deportable 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 deportable 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 manslaughter is “a crime involving moral turpitude,” and so his conviction falls within an exclusion ground. But Judulang 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 “turpitudinous” crimes). See infra, at 13. Judulang argues that this disparity is impermissible because any disparity between excludable and deportable aliens is impermissible: If an alien may seek §212(c) relief in an exclusion case, he also must be able to seek such relief in a deportation case. See Brief for Petitioner 47–51. 8 But the Government 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 possible,” 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 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 immigration laws or the appropriate operation of the immigration 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) eligibility 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 attributes 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 contains 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

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 conviction. See App. to Pet. for Cert. 11a–12a. That made him ineligible for §212(c) relief because the “crime of violence” 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 unauthorized 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 difference 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 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 oppositely, that “the moral turpitude ground of exclusion addresses 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 meaningless 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 corresponds to an exclusion ground. Consider, for example, an alien who entered the country in 1984 and committed voluntary manslaughter in 1988. That person could be charged (as Judulang was) with an “aggravated felony” 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 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 exclusion 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 immigration 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 appearing 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 recognized 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 circumstances 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 distinguishes among aliens—decides who should be eligible for discretionary relief and who should not—solely by comparing 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 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 language,” 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 deportation 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 security and international child abduction) are two among these. What §212(c) actually says, then, is that the Attorney General may admit any excludable alien, except if the alien is charged with two specified grounds. And that 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 General waives is not a particular exclusion ground, but the simple denial of entry. So the premise of the Government’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 exclusion,” 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 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 Government’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 significant 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 approach to this issue. To the contrary, the BIA has repeatedly vacillated in its method for applying §212(c) to deportable 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 Granados, 16 I. & N. Dec. 726, 728 (1979), the BIA tried to have 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 “analogous 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 deportation 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 whether 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 endorsed the comparable-grounds approach on several occasions. See Meza, 20 I. & N. Dec., at 259; Matter of Montenegro, 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 history 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 number of deportable aliens, which in turn would force the Government to make additional individualized assessments 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 arbitrary 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 exclusion 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 rejecting that rule, we do not preclude the BIA from trying to devise another, equally economical policy respecting eligibility for §212(c) relief, so long as it comports with everything 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 lawful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protestations, it is not supported by text or practice or cost considerations. 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 consistent with this opinion.

It is so ordered.

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1  The relevant 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.). The parenthetical clause of this section prevented the Attorney General 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).

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).

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).

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.

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 deportation”), 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. Natural 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 interpretation 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.

8  Judulang also argues that the BIA is making an impermissible distinction between two groups of deportable aliens—those who have recently left and returned to the country and those who have not. 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 applying 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 country); In re Valenzuela-Morales, No. A40 443 512, 2008 WL 2079382 (BIA, Apr. 23, 2008) (same). But in light of our holding that thecomparable-grounds approach is arbitrary and capricious, we need notresolve this dispute about the BIA’s practice.

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 (Congress never contemplated, in drafting the immigration laws, “that its grounds of deportation would have any connection with the grounds of exclusion” in the application of §212(c)); see also infra, at 16–17.

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.

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, 110Stat. 1277 (effective Apr. 24, 1996). The change does not affect our analysis, nor does the Government 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.

12  Because we find the BIA’s prior practice so unsettled, we likewise reject Judulang’s argument that Blake and Brieva-Perez were impermissibly retroactive. To succeed on that theory, Judulang would have to show, at a minimum, that in entering his guilty plea, he had reasonably 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.

Print this transcript Transcript: 

ORAL ARGUMENT OF MARK C. FLEMING ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next in Case 10-694, Judulang v. Holder.

Mr. Fleming.

Mr. Fleming: Mr. Chief Justice, and may it please the Court:

In Hernandez-Casillas, the Attorney General confirmed that a lawful permanent resident subject to deportation, quote,

"must have the same opportunity to seek discretionary relief as an alien who has temporarily left this country and upon reentry been subject to exclusion. "

2 months later in its published decision in Matter of Meza, the BIA again confirmed that an immigrant deportable for an aggravated felony could seek relief because his conviction could also form the basis for excludability.

Immigrants in situations indistinguishable from Mr. Judulang's applied for and received relief under this rule.

The BIA's decision in Blake changed the law.

Without explaining or even initially acknowledging that it was doing so, the Blake rule was impermissibly retroactive, and it is arbitrary and capricious on its own merits.

We would submit the evidence--

Justice Antonin Scalia: How do you explain -- I mean, I think that is a principal point, whether Blake and Brieva changed the law.

How do you explain the language in Matter of Wadud, which antedates by a good deal those two cases, 1984, which says:

"Section 212(c) can only be invoked in a deportation hearing where the ground of deportation charged is also a ground of inadmissibility. "

It seems to me that that's the basic point.

Mr. Fleming: --Two responses to that, Justice Scalia.

I agree, Matter of Wadud is the principal response that the government has, and it does not help them at all.

Wadud was deportable for a conviction under 18 U.S.C. 1546, and the BIA had held in a case called Matter of RG in 1958 that that conviction did not render him excludable.

And that is confirmed later in the case of Matter of Jimenez-Santillano, which also involved a 1546 conviction, where the BIA says that if Mr. Jimenez had left of the country and returned it appears that he would not have been inadmissible and compares that situation to someone convicted of a firearms offense, which the board and the Attorney General had always said were not waivable.

To the extent there is any ambiguity in the language that Your Honor read, it could not have survived the Attorney General's decision in Hernandez-Casillas, which I just quoted at the beginning of the presentation, which said that what one looks to is whether alien in exclusion proceedings would be able to invoke section 212(c) relief.

And when the board then addressed the case of the aggravated felony in Matter of Meza, it did not even address Wadud or view it as binding at all.

It looked to the conviction and whether it formed a basis for excludability.

And the BIA then followed up with no fewer than eight decisions in crime of violence cases indistinguishable from this case where the BIA cited, not Wadud, not any of the other cases that the government is relying on, but cited Meza as articulating the doctrine that the focus of analysis is on the conviction.

And the Court has the briefs of several former immigration officials, including two INS general counsel and several INS trial attorneys, confirming that that was the position and the basis on which the government litigated these cases--

Justice Elena Kagan: Mr.--

Mr. Fleming: --And in fact -- yes, Justice Kagan?

Justice Elena Kagan: --Please finish.

Mr. Fleming: If I may, I was just going to say that a number of these cases, crime of violence cases, reached the merits in both the BIA and the courts of appeals without the government even suggesting that there was a statutory counterpart problem.

In fact, when it has suited its purposes the government and the BIA have admitted that Blake was a change, including in a brief filed in the Ninth Circuit less than a year ago.

Justice Elena Kagan: You cite some cases.

You say there was a dramatic change in the law.

The government cites some cases and it says there was no change in the law.

What if the truth lies someplace in the middle.

What if, in fact, when you look before Blake what you see is some amount of confusion; that the board sometimes was following the Blake rule, but that at other times individual judges or maybe the board itself were doing something different, because the individual circumstances suggested that they should, or just because they weren't so clear on the difference between these two approaches.

And then Blake comes along, and what Blake does is neither to change something dramatically nor to just reaffirm what was there, but in some sense to create a little bit of order out of chaos.

What would that do to your argument if that's the way one understood Blake?

Mr. Fleming: Obviously, Justice Kagan, we don't think that is the proper way to understand Blake.

But to answer the question, for purposes of the retroactivity analysis, the Court uses what the Court in St. Cyr called

"considerations of fair notice, reasonable reliance, and settled expectations. "

And we would submit that reliance was more than reasonable and expectations more than settled as to how the board was addressing crime of violence aggravated felony convictions prior to Blake, as is shown by the evidence that I cited a minute ago, namely the position that the government itself was taking in these cases and the way that immigrants would have been advised by both criminal defense counsel and immigration counsel, including, for that matter, INS trial counsel.

Justice Antonin Scalia: Well, reliance on confused law is certainly not reasonable reliance.

I mean, if you accept the -- the premise that Justice Kagan operates from, how can you say that -- that you're reasonably relying on confused law?

Mr. Fleming: I don't accept the premise at all, Justice Scalia, that the law was confused.

Justice Antonin Scalia: Well, that's a different point.

Mr. Fleming: But even if -- even if there was some lack of clarity in the law, and we don't think there was, I think the record in this -- before the Court is very clear, that people were advised by competent counsel and that the government itself took the same position in front of the immigration courts and the courts of appeals that someone with a crime of violence aggravated felony conviction could seek relief because that conviction would make him or her excludable and the availability of relief in deportation proceedings is meant to be the same as it would be in exclusion proceedings.

Chief Justice John G. Roberts: I understand the advice of counsel, but what is the reasonable expectation of that's been altered?

Mr. Fleming: The reasonable expectation that once someone pleads guilty, Mr. Chief Justice, to an excludable offense, one that would be waivable in exclusion proceedings, that a waiver may be sought in subsequent deportation proceedings on exactly the same basis.

And that is the published policy of the BIA.

Chief Justice John G. Roberts: So you're saying that the expectation is when he pleads guilty to a violent felony, that he expects, well, if I am deported because of that I am going to be able to seek discretionary waiver?

Mr. Fleming: Yes, that's quite correct, Mr. Chief Justice.

That is the ruling in St. Cyr, that when someone -- when someone pleads guilty to an offense that is eligible for relief under 212(c) there is reliability on the possibility -- not a guarantee of a waiver, obviously, but the avoidance of mandatory deportation, appealing to the discretion of the Attorney General.

Chief Justice John G. Roberts: How often are these waivers granted?

Mr. Fleming: Quite frequently, I think.

The Court pointed out in St. Cyr that they are frequent and now, because the category of people who are eligible involves people who have very old convictions, they necessarily pled before 1996, they are usually minor offenses, they involve people who have been in this country for a long time, they frequently have property, they have families, they can show rehabilitation.

Often they only come to the attention of the immigration authorities by applying for naturalization or by renewing their green cards, and they get thrown into deportation on the basis of these old convictions that at the time of the plea would have been eligible for at waiver, and it is simply unfair to change the law, as Blake did, and impose that change on people who relied on it in pleading guilty.

Chief Justice John G. Roberts: But in terms of the expectation interest, we have to visualize someone who is facing a serious charge and is entering a plea bargain, where presumably the consideration of what he's pleading to, how much of a sentence he's going to get, all that, are dominant considerations.

And he's also going to say: Well, I have been advised that I will be able to apply for a discretionary waiver, so I'm going to plead guilty.

That's a fairly unlikely scenario, isn't it?

Mr. Fleming: On the contrary, Mr. Chief Justice.

The Court in St. Cyr made very clear that's a very likely situation.

It cited a couple of cases at that time that specifically involved that colloquy.

The NIJC amicus brief which is before the Court in this case identifies a couple of situations, including the case of Mr. Ronald Bennett, who was advised by his lawyer that when he pled guilty it would not be a problem for him for his immigration status because he could seek 212(c) protection.

Chief Justice John G. Roberts: No, no.

I'm not questioning the fact that he was advised, but presumably the lawyer will also advise him: Oh, and you also have to pay the $250, you know, restitution, whatever, fee.

I am just questioning how significant that advice will be when someone's determining whether to plead guilty or not to a violent felony.

Mr. Fleming: I -- I understand, Mr. Chief Justice.

It is quite significant for people whose ability to stay in this country is highly important to them.

They have family here, they have lived here for decades.

The risk that they are going to be--

Justice Ruth Bader Ginsburg: And the violent felony -- the violent felony in this case, he had a suspended sentence, didn't he?

Mr. Fleming: --He was sentenced to -- to time served essentially for this conviction, that's right.

Justice Samuel Alito: Now, if he had been convicted of a lesser offense that was not a crime involving moral turpitude, he would not be eligible for the waiver, isn't that right?

Mr. Fleming: That -- if -- if the offense would not have been waivable in the exclusion proceedings, he would not be eligible, that's correct, Justice Alito.

But there might be other forms of relief that he--

Justice Samuel Alito: Isn't that -- isn't that strange?

Suppose you have somebody who is charged with a lesser offense that -- that doesn't involve moral turpitude and a greater offense that does, and the defense attorney comes to the client and says: I have got great news; the prosecutor will take a plea to the lesser offense and drop the greater one.

I guess that would be -- that would be bad, potentially bad advice, because he ought to plead to the more serious offense because then he would be eligible for a waiver.

Mr. Fleming: --He would be eligible for a waiver under section 212(c), Justice Alito, but that is not the only form of relief that someone who pleads guilty to a -- a crime could potentially seek.

And people who plead to non-inadmissible offenses, offenses that do not lead to their exclusion, had other avenues at the time that they could have pursued.

For instance, they could have pursued adjustment of status.

That is the -- the BIA's decision in Matter of Gabryelsky.

In order to adjust status, all that matters is that you not be inadmissible to the country.

And even if you are inadmissible, you can seek a 212(c) waiver during that process.

Whether you are deportable or not doesn't matter.

So there are many other ways.

Looking at section 212(c) on its own, it might appear anomalous.

But looking at the immigration law as it was before 1996, there are other options.

Justice Antonin Scalia: But what you say even further reduces the significance of the 212(c) possibility of waiver to the person pleading guilty.

You are saying -- you are saying, yes, even though -- even though you couldn't get it under 212(c), there are a lot of other ways you might have gotten it.

Mr. Fleming: I'm sorry, Justice Scalia.

Maybe I wasn't clear.

The people who could get the other relief are people who pled guilty to crimes that do not involve moral turpitude, which was Justice Alito's hypothetical.

But people who plead to crimes involving moral turpitude potentially don't have that -- that avenue open to them.

Justice Antonin Scalia: But--

Mr. Fleming: For them, section 212(c) is very important and they could rely on its availability, and did.

Justice Antonin Scalia: --But there is a large category of people who -- who plead guilty to crimes that do not involve moral turpitude and yet are not otherwise excludable under 212(c); right?

Mr. Fleming: I don't know which category Your Honor is thinking of.

But certainly you can plead guilty to a crime that does not involve moral turpitude; then you would not be eligible for 212(c) relief; but there might be some other way that you can -- that you can get at it.

But that is not this category of people.

The category of people at issue here are people who pled before 1996 to aggravated felony crimes of violence, almost all of which, if not all of which, are going to be crimes involving moral turpitude that are excludable and therefore eligible for a waiver.

It does not necessarily mean they will get it; but it at least means they have the right to ask the Attorney General to exercise his discretion.

And I submit that, as this Court indicated in St. Cyr, the private interest in avoiding mandatory deportation is very strong.

We have what I believe is a sudden and abrupt change in the law in Blake; and it could not have been foreseen, in fact it wasn't foreseen by advocates on both sides of the "v" in these cases.

The remaining question for purposes of the retroactivity analysis is only the strength of the agency's interest in applying the rule retroactively.

I submit that that interest here is no stronger than it is in the ordinary mine run of cases, and in fact it is weaker, because all that we are talking about is the opportunity to submit an application for adjudication on the merits, which is subject to the discretion of the agency.

Mr. Judulang would have the burden of convincing an immigration judge and the Board of Immigration Appeals that he deserves relief in the exercise of discretion.

And so under Chinnery--

Justice Ruth Bader Ginsburg: Any change is a sharp change.

I think this is a very confusing set of decisions.

And the Wadud case that was brought up before has a footnote that says that the board had stated a waiver of inadmissibility may be granted in deportation if the alien was excludable as a result of the same facts.

And then that footnote ends

"we shall withdraw from that language in each of these cases. "

Mr. Fleming: --That's correct, Justice Ginsburg, and the operative language there is

"as a result of the same facts. "

What Wadud was arguing was that recognizing that his conviction would not make him excludable, because it was not a crime involving moral turpitude, he said nonetheless he should look to the facts of my conduct, because what I did was so turpitudinous that the government would surely have charged me as excludable.

And the board said: We are not going to do that, and to the extent our prior decision suggested that we are withdrawing from that language.

It did not say, however, that the board would not look to convictions to determine excludability, and in fact in Meza which was after Wadud it did just that.

And when the Court came to crime of violence cases subsequently to that, the precedent that it relied on was Meza, which focuses on the conviction.

I agree it does not focus on the facts, but I don't think the language that Your Honor read undermines our position at all.

Justice Samuel Alito: That is so bizarre, it makes me -- he is pleading to prove that what he did was really turpitudinous.

It makes me think that maybe the en banc Ninth Circuit was right, that this whole line of cases has gone off along the wrong track quite a while ago.

Mr. Fleming: So -- I mean the notion that this form of relief is available in deportation proceedings is long settled.

Justice Samuel Alito: Yes, yes.

Mr. Fleming: It's the premise of this Court's decision in St. Cyr.

The agency has never undermined it or suggested that it was going to retreat from it.

No party before this Court is suggesting that St. Cyr should have been overruled on that basis, so I -- and I think it's very clear that Congress, after the relief had been extended to deportation proceedings, enacted provisions in 1990 and 1996 that would have no operative effect if relief was not available in deportation proceedings.

Justice Anthony Kennedy: Well, a lot -- a lot of the statutory changes in the policy of the INS date back to, was it the Second Circuit's case in Francis, which talked about the equal protection component of the two classes comprised of those in exclusion proceedings and those in what were then called deportation proceedings.

Do we just accept that?

It -- it seems to me that that whole equal protection rationale is quite doubtful.

Mr. Fleming: Well, there -- there are two responses to that, Justice Kennedy.

The first is the agency has accepted that in Matter of Silva as a correct interpretation of the statute, and that has been on the books for 35 years now, approximately, and Congress has never suggested any disapproval of it.

Rather, on the contrary it has assumed that that is the law, and that's after the Solicitor General refused to seek certiorari of that decision.

The comparison also was not between people in exclusion and people in deportation.

It was between two--

Justice Anthony Kennedy: So if we thought that they had gone down the wrong path originally, there is nothing we can do about it, and we just say we're in this wilderness and we can't get out?

Mr. Fleming: --I think, Justice Kennedy, Congress at this point has not only acquiesced, but indicated its understanding of the -- of the way the agency has applied the law.

And honestly I think this is a -- a question for the government, because the agency has never suggested that there was any basis for retreating from that position at this late date.

Unless the Court has further questions on retroactivity, I would move quickly to our substantive position, which is that even without regard to retroactivity, the Blake rule is arbitrary and capricious, and there are two basic reasons for that: First, that it rests on improper factors; and second, that it leads to results that the BIA itself has disavowed.

First of all, Congress has never suggested that the words that it chooses in deportation provisions are somehow a key to eligibility for section 212(c) relief, and yet that is largely everything that the board relied on in Blake, was a comparison of the choice of words in deportation provisions to the choice of words in exclusion provisions.

But the -- the provisions of the deportation statute are not some enigmatic code from which the BIA can discern section 212(c) eligibility.

They determine who is deportable, but they have nothing to say about who is eligible for section 212 c.

Section 212 c eligibility turns on whether you are inadmissible.

That is what 212 c by its terms refers to.

And that's driven home, I believe, by the addition of the crime of violence language in 1990 as a basis for deportation.

Aggravated felonies were added in 1990 at a time when it -- I believe it's clear that most of them, if not all of them, were already bases for exclusion.

So there was no need for Congress to say crimes of violence are excludable, they already were because they were crimes involving moral turpitude.

It would have been redundant to put the same words in the exclusion statute.

Congress didn't do it.

Congress simply wanted to make clear that these people were now going to be deportable based on the length of their sentence.

Justice Ruth Bader Ginsburg: What about the comparability of the crime involved as it says here that was a drug offense.

Does the inadmissibility criterion, does that accord with the one for deportation?

Mr. Fleming: Yes, it does, Justice Ginsburg.

And because Mr. St. Cyr would have been both deportable and excludable for his offense.

That is the logic.

Justice Ruth Bader Ginsburg: That ending with the comparison works, right.

Mr. Fleming: Well, the board in Blake concluded that that was -- that the linguistic comparison worked there so that it did not have to find itself at odds with this Court's decision in St. Cyr, that's true.

But when the Court -- when the board originally made that decision in matter of Meza, they didn't just look to the linguistic comparison.

I agree that if there is a perfect linguistic match, then you might not need to go to look at the conviction, because someone who falls under one may not necessarily fall under the other.

But just because Congress uses different words in the deportation subsection that is asserted against a particular alien doesn't mean that the analysis stops, there, because the conviction might well make the person excludable such that the application that they are able to file in deportation proceedings should give them the same relief that they would have in an exclusion proceedings.

So what happened in 1990 when 212 c eligibility stealthily and silently, because of course while Congress was amending 212 c at that time, saying it was no longer available to deportable aliens who didn't show up for certain hearings and no longer available for aggravated felons who were deportable who had served more than five years in prison, it had said nothing suggesting that people who had committed aggravated felony crimes of violence were all of a sudden ineligible for section 212 c relief, even though it could have said that.

The notion that one can infer or decode those provisions as shutting out section 212 c relief for this group of people silently, even though the overlap is perfect if not near perfect is we would submit simply unreasonable.

The arbitrariness comes through in another way which is that--

Justice Elena Kagan: Mr. Fleming, the government says that it has an interest in treating people in deportation proceedings less favorable, if you will, than people in exclusion proceedings.

Do you dispute that broad premise that the government could develop a system which treated those two groups differently?

Mr. Fleming: --That is not the way that the agency has ever treated permanent resident aliens.

In fact, if that is the government's position that is clearly a change in the law.

The BIA said going back to Silva, but in matter of AA a 1992 published decision that it is the long -- quote

"long established view of the Attorney General in the federal courts that an application for Section 212(c) relief filed in the context of deportation proceedings is equivalent to one made at the time an alien physically seeks admission into the United States. "

That is footnote 22 of matter of AA.

So the agency's longstanding position, at least since Silva, has been that there is no difference between an application filed in deportation and one filed in exclusion.

And that I think is consistent with what Attorney General Thornburg said in the matter of Hernandez-Casillas.

I'd submit one last point, which is the arbitrariness of what the BIA is doing shines through in that it has led to consequences that the BIA has itself repudiated as inconsistent with the statute.

And the most salient example is the one that the government admits on page 26 of its brief, which is that there is a possibility that someone could get a waiver of inadmissibility one day for a given conviction and then be deported the next day for the very same conviction.

Now the BIA in 1956 in matter of G.A. said that was clearly repugnant.

That the agency cannot have it both ways.

The statute cannot mean X and not X.

If it does, that is the Hallmark of arbitrariness.

The government's only answer, as far as I know, is that it will exercise its prosecutorial discretion to avoid that situation.

I would submit that an agency cannot defend an arbitrary policy by saying that it is going to be enforced in a capricious way and that it will all balance out in the end.

This Court should evaluate the Blake rule on its own merits and if it is arbitrary, as it clearly is, it should be disapproved.

The other indication of arbitrariness is that the Blake rule revives the distinction between deportable aliens, Justice Kennedy, who traveled abroad and returned and other deportable aliens who did not travel aboard and returned.

Justice Elena Kagan: The government says that is not the case.

The government says that it does not treat those two groups differently.

Do you have evidence to the contrary?

Mr. Fleming: Yes, Justice Kagan.

The evidence is the Attorney General's opinion in Hernandez-Casillas.

The government's only citation for that is a footnote in Wadud arguing that supposedly the nunc pro tunc doctrine is not still good law.

But five years after Wadud, in Hernandez-Casillas, Attorney General Thornburg was asked by the INS to disapprove Matter of L -- Justice Jackson's decision as Attorney General, and Matter of G-A and the nunc pro tunc doctrine that is set out in those decisions, and he expressly declined to do so.

On the contrary, he reaffirmed that in cases where the alien has left and come back, the Attorney General and the board have permitted the alien to raise any claim for discretionary relief that the alien could otherwise have raised had he been excluded.

So nunc pro tunc clearly is still good law, and the government seemed to agree with that as recently as its brief in opposition to certiorari.

As for the travel distinction itself the government to its credit does not try to defend it, and for good reason.

The agency in Silva has long held that there is no distinction or no rational way to distinguish under the statute between people who are in deportation proceedings who have left and come back and people in deportations who have not.

Unless the Court has further questions I reserve of the remainder of my time.

Chief Justice John G. Roberts: Thank you counsel.

Mr. Gannon.

ORAL ARGUMENT OF CURTIS E. GANNON ON BEHALF OF THE RESPONDENT

Mr. Gannon: Mr. Chief Justice and may it please the Court:

The Petitioner does not dispute that some comparability analysis must be applied to prevent relief under former section 212 c from being extended to certain grounds of de portability.

But his methodology of asking whether his offense could have made him excludable is inconsistent with established cases from the board that long predated the ones at issue here involving firearms offenses and visa fraud.

Justice Scalia brought up the case in Wadud.

That was a visa fraud case.

It was a prosecution under 18 U.S.C. 1546.

That's a provision that penalizes fraudulent and other misuse of visas and other immigration documents.

It's a very broad criminal provision.

It's long been a ground of de portability.

And at the time the alien argued that this is fraud.

It's a crime involving moral turpitude and therefore I would be subject to exclusion.

In Wadud the board rejected that analysis.

Justice Stephen G. Breyer: That's true.

But it may save a little time.

I worry we're in an arcane area of the law.

It was created by Robert Jackson, Attorney General and by Thorn burg, Attorney General.

And if we are starting with that, what that says is we have a list over here of excludable things and we have a list of deportable things.

And if you are deported for a reason that shows up on that first list, than the AG could waive.

That's basically the outline I have.

And also I have, which isn't quite right, that in that first list there is something called -- in big letters, CIMT or something, crime of moral turpitude.

And all of the things on the second list, the big issue is, is it a crime of moral turpitude.

As I looked through the opinions, this is what I got out of it.

This is tentative.

I got out, just as you say, there are two things in the second list which are not crimes of moral turpitude.

They consist of illegal entry crimes and gun crimes.

And there are special reasons for the first and the second is debatable, but they have been consistent with that.

Then there are things that are on both lists, they are crimes of moral turpitude.

I counted at least eight cases.

Say, for example, rape, burglary, manslaughter, second degree robbery, indecency with a child and probably some others are all crimes of moral turpitude, so it cuts here, okay.

Then I find Blake, and Blake says sexual abuse of a minor is not a crime of moral turpitude.

That's a little surprising.

But it gives us a reason because, and this was the problem here, it talks about, there has to be substantial -- there has to be similar language in the two lists.

I don't know where that one came from.

It certainly had not been in the earlier cases.

And now we have this case, which is voluntary manslaughter.

I would have thought that voluntary manslaughter is right at the heart of the lists that they said the things are crimes of moral turpitude, and not like visa crimes or gun crimes, if I read the cases.

So where do I end up?

Well, what I end up with is this.

And this is what I would like you to reply to.

Justice Brandies once said something like we have to know before we can say whether an agency opinion is right or wrong, what they are talking about.

I felt perplexity after I had read through these decisions.

In other words, I don't understand it.

So I would like you to explain to me why this all fits together and how, if you can do that, I couldn't get that clear explanation from the brief, and I suspect it is not your fault.

Mr. Gannon: Well, I agree that the history and the law here is relatively complicated and it has had a lot of moving pieces over the years.

But I think that the board has been very consistent, especially beginning in the 1984 Wadud decision that was picked up in the Jimenez-Santillano decision and also in firearms offenses.

Justice Breyer, you talked about the fact that the board had been consistent in firearms offenses.

And the Petitioner does not dispute that firearms offenses are ones that do not have a comparable ground--

Justice Stephen G. Breyer: Rape, burglary, manslaughter, second-degree robbery -- all of those cases -- about seven or eight of them.

Mr. Gannon: --If I could go back for a second to firearms offenses.

The board there has continued to say that there is no comparable ground for firearms offenses, even if your firearms offense would be something that could have been considered a crime involving moral turpitude.

If you look at the board's 1992 decision in Montenegro, that was a case that was assault with a firearm, and so it wasn't merely possession of a handgun or an automatic weapon or a sawed-off shotgun--

Justice Ruth Bader Ginsburg: Is there any aggravated felony crime of violence that is not a crime involving moral turpitude?

Mr. Gannon: --Yes, Justice Ginsburg.

The board pointed out in the Brieva-Perez decision that minor but relatively common crimes of violence, including simple assaults and burglary, generally are not considered to be crimes involving moral turpitude.

In the reply brief, Petitioner points to a board petition in Louissaint saying that -- that the record is muddled on burglary, but that opinion only showed that residential burglary isn't a crime involving moral turpitude, and a crime of violence, in the definition, is one that involves the use of physical force against personal property of another.

And so it doesn't need to be aggravated in any other sense.

It doesn't need to be--

Justice Ruth Bader Ginsburg: Was Judulang's crime a crime involving violence?

Mr. Gannon: --Yes, it was a crime--

Justice Ruth Bader Ginsburg: I mean a crime of moral turpitude.

Mr. Gannon: --Yes, it was.

But what I'm trying to say, Justice Ginsburg, is that Petitioner's approach of looking to the conviction is inconsistent with the board's repeated--

Justice Stephen G. Breyer: Don't -- that may be his approach.

My approach is look to the category.

Mr. Gannon: --And, Justice Breyer--

Justice Stephen G. Breyer: Look to the category.

And the category here is not, you know, category as in crime, the category is what kind of a crime.

And this is a crime of violence.

In the statute, or if you look at what was charged, it's called voluntary manslaughter.

Either way, I would think those categories as categories fall within "crime of moral turpitude".

Mr. Gannon: --Well, but -- but the category that is relevant is the crime of violence.

And as I just discussed with Justice Ginsburg, there are indeed crimes of violence that satisfy the statutory definition in 18 U.S.C. 16--

Justice Sonia Sotomayor: But you're not -- you're not--

Justice Antonin Scalia: Can I hear this answer?

I was very interested in the question.

It seemed to make a good point.

Justice Stephen G. Breyer: Thank you.

Mr. Gannon: --If I could finish up on the firearms analogy, I think that this is responsive, Justice Breyer, to your point about looking at the category.

And in Montenegro, the board specifically concluded that this offense, assault with a firearm, it's a firearms offense, but because we've already concluded that as a categorical matter, firearms offenses aren't on the list of exclusion crimes; we don't care and we're not going to ask ourselves whether it could have been a crime involving moral turpitude.

The board applied that same reasoning again in the 1995 opinion in Espinoza.

We quote all of these opinions on page 41 of our brief.

And so, in these two categories, firearms offenses and visa fraud offenses, both of which could often involve moral turpitude on an -- in any individual case -- that such offenses could involve moral turpitude, just like a crime of violence may well involve moral turpitude, and yet the board concluded that because as a categorical matter, this is not comparable to any grounds of exclusion, it was going to say that it was not going to extend this relief, that--

Justice Ruth Bader Ginsburg: What -- what--

Chief Justice John G. Roberts: Let's let Justice Sotomayor jump in now with her question.

Justice Sonia Sotomayor: --I go back to Justice Breyer's question.

What you just said made logical sense; the category of gun possession doesn't go in.

Visa fraud doesn't become a crime of moral turpitude.

But we have cases that have said generically, manslaughter which involves violence is a crime of moral turpitude.

Others have qualified sexual abuse of a minor.

I don't know of anyone who would think that that category of crimes, whether you call it indecency, touching or -- we've already said touching alone may not qualify -- but my point is, you now are saying, I think, and correct me if I'm wrong, that aggravated violent felons is an entire category, and anything that falls under that label can't be a grounds of exclusion.

Mr. Gannon: --No.

Justice Sonia Sotomayor: That's how I read your categorical comparison, though.

Mr. Gannon: The board has made it clear from as early as the Meza decision that it would look into the specific category within the definition of aggravated felony -- in order to be a category--

Justice Sonia Sotomayor: So now why is manslaughter not a crime of moral turpitude?

Mr. Gannon: --Because that is not the category in the aggravated felony definition that we are talking about.

What we are talking about is crimes of violence.

That's the category.

And so--

Justice Elena Kagan: But, Mr. Gannon, suppose this.

Suppose that on the exclusion side, you have this category of crimes of moral turpitude, and suppose in the deportation side -- which I think is right, you have a category called crimes of violence, and you also have a category called crimes of moral turpitude.

There is a time limit on that--

Mr. Gannon: --We do have that category here.

Justice Elena Kagan: --That's right.

Suppose that you -- the government could have slotted manslaughter into either of those categories on the deportation side, and I understand that there is a dispute about whether it could have, but let's suppose it could have.

So if manslaughter is categorized on the deportation side as a crime of violence, you say it doesn't match with the category on the exclusion side.

But if the same crime is categorized in a different way by the government, then it does match on the exclusion side.

So what sense does that make, the government's decision about how to categorize a -- a given offense on the deportation side is going to determine whether a person gets relief?

Mr. Gannon: Well, I think that there's no dispute about that between us and Petitioner.

If somebody had a firearms offense, it could have been charged either way.

Justice Elena Kagan: But the Petitioner -- the Petitioner just says we look to manslaughter, and we ask whether that qualifies a person for relief on the exclusion side--

Mr. Gannon: And what I'm trying--

Justice Elena Kagan: --But you are saying no, first, we have to put manslaughter in a category on the deportation side, and then we have to match that to the category on the exclusion side.

And what I'm asking you is kind of what sense does that make?

Doesn't everything depend on which category you put manslaughter into?

Mr. Gannon: --Well, what it -- the reason it makes sense is because the statute only provides for relief from grounds of inadmissibility or exclusion.

By its terms--

Justice Elena Kagan: You are so far from the statute, Mr. Gannon, you can't even tell what's closer to the statute.

I mean, you are miles away from the statute.

Mr. Gannon: --Well, the way -- the way this doctrine developed, Justice Kagan, is that it developed in the context where the board recognized that the statute only applied to waiver of grounds of excludability, and it extended that to deportation cases when it was on the basis of the same grounds that could have been presented in the exclusion proceeding.

And so that's all we are trying to do here, is to continue with that--

Justice Ruth Bader Ginsburg: --But what your position means that it's up to the agency -- up to the person who makes the charge.

Because take Mr. Judulang, he could have been categorized as deportable because he committed a crime in -- involving moral turpitude, or he could have been categorized as somebody who committed an aggravated felony.

It is then totally in the hands of the person who is making the charge whether there will be a match or not.

Mr. Gannon: --The reason why that's so is because the thing that is going to be waived at the end of the proceeding is the ground of deportation.

And so if the ground of deportation is for an aggravated crime of felony violence, then it needs to be one for which there's 212(c) eligibility.

The same would be true if it were a firearms offense -- if it were--

Justice Ruth Bader Ginsburg: If -- if the officer labels the manslaughter in this case a crime involving moral turpitude, then there is a match--

Mr. Gannon: --That's--

Justice Ruth Bader Ginsburg: --And if he labels it aggravated felony, crime of violence, then there is no match.

So it's up to the charger whether there will be this match or not.

Mr. Gannon: --That's true.

It's also true in the firearms offense cases and the visa fraud offense cases, because those are all instances in which, depending on the circumstance of the offense and depending upon what it was charged, the board has concluded that the 1546 offense is divisible.

Some of those crimes are involving moral turpitude, some of them are not.

And I -- and so--

Justice Elena Kagan: But this isn't a question about the history, Mr. Gannon.

Even if we assume that you are right about the history, this is a question about whether this is an arbitrary system, and where you are devising it from and what lies behind with it.

Mr. Gannon: --And I think that this is not only consistent with the history, it is consistent with the text of the regulation the Petitioner is invoking here, which makes it clear that what is being waived is a ground of exclusion or deportability or removability.

And so what is relevant is whether the ground of removability is the aggravated felony crime of violence ground or the crime involving moral turpitude ground.

Depending on which ground it is, that's what he is seeking relief for--

Justice Ruth Bader Ginsburg: Then -- then you have to say yes, you can have somebody who would get a waiver of inadmissibility for a crime, and the very next day be put in deportation without any waiver for that same crime.

Mr. Gannon: --We have no cases in which that has happened.

And the cases in which the board said that that result would be clearly repugnant were ones in which there was a comparable ground.

The board was saying that if you get 212(c) relief on the grounds of exclusion--

Justice Ruth Bader Ginsburg: But these categories--

Mr. Gannon: --Pardon?

Justice Ruth Bader Ginsburg: --These categories.

Mr. Gannon: No, there -- there are no cases that address that principle in the context where there is no comparable grounds.

And if -- if I could just make one point about this claim of Petitioner's in his reply brief that he could have been subject to a charge of deportability on the basis of a crime involving moral turpitude, I would caution the Court against relying on that for two reasons, one factual and one legal.

One is that there is no factual basis in the administrative record to -- to talk about this 1987 trip to the Philippines.

Yes, we do have evidence from outside the record that makes us believe that it occurred, but the statute that provides for judicial review here of the order of removability in 8 U.S.C. 1252(b)(4)(A) specifically says that the determination needs to be made on a basis of the administrative record.

And the only evidence in the record about that trip is actually a statement from Petitioner's mother that says that it occurred in 1989, the year after the crime.

But even assuming that -- that the trip happened, in light -- as I said, we do believe on the basis of evidence outside the record that it did occur -- there is a legal reason why I would caution the Court against assuming that that means the Petitioner could have been deportable for a crime involving moral turpitude, and that is the so-called Fleuti Doctrine.

Under this Court's 1963 decision in Rosenberg v. Fleuti, which is actually relevant to a case on which you granted certiorari a couple of weeks ago, this Court concluded that if an LPR takes a brief, casual, and innocent trip outside the country and returns to the United States, that will not trigger an entry upon his return to the United States.

And so I think it's very likely that under Ninth Circuit precedent in 1989, when Petitioner was pleading guilty to his voluntary manslaughter charge, he wouldn't have had any reason to think that he was doing so within 5 years of when he committed -- when he entered the country for purposes of the statute.

I think it's also--

Justice Stephen G. Breyer: Can we go back to the second one?

It's very interesting.

Suppose I say: Okay, I concede.

I'd only do it for the sake of this question: You are absolutely right in your categorization.

The right category is crime of violence.

And then I look at the statute, which is 8 U.S.C. 1101(43), which you probably know by heart -- and I look at the definition of gun crimes, and I look at crimes of violence.

My non-schooled reaction is, well, gun crimes, I can see why they said that wasn't really a crime of moral turpitude, because there are a lot of registration requirements, there are all kinds of different things that drug dealers -- gun dealers have to do, and you could commit that crime in various ways that don't involve moral turpitude.

I can understand that, sort of.

At least, I can see how somebody else might have understood it that way.

Now, I think crimes of violence, I say, hey, I am having trouble here.

Why don't you try to list a few crimes of violence that when they come into the country you are going to say, oh, that wasn't a crime of moral turpitude?

And by the way, I am not asking you to list specific examples; I am asking you to list categories.

List categories of crimes of violence that when the person comes in, you are going to say, hmm, no moral turpitude there.

Mr. Gannon: --The chief examples are the ones that the board gives in the Brieva-Perez opinion, which are simple assaults, which has--

Justice Stephen G. Breyer: That is not a crime of -- that is not a moral turpitude, simple assault?

You're going to just hit somebody?

Mr. Gannon: --That is correct, it is not a crime involving moral turpitude.

Neither is non-residential burglary which involves force against -- against property, which would therefore satisfy the definition.

This is an opinion that--

Justice Stephen G. Breyer: Burglary -- isn't burglary where it might be an occupied building?

Mr. Gannon: --If it were an occupied building, if it were a dwelling--

Justice Stephen G. Breyer: Well, no.

A warehouse.

I am being -- quibbling now.

Of course, my basic concern--

Mr. Gannon: --In the Ninth Circuit, burglary of a residential dwelling that's occupied is not a crime involving moral turpitude.

Justice Stephen G. Breyer: --Oh, really?

Okay.

Mr. Gannon: In -- in a case that is cited in the concurring opinion--

Justice Stephen G. Breyer: So there are some.

There are some.

Mr. Gannon: --There certainly are.

Justice Stephen G. Breyer: They're a little odd, but what I'm raising--

Mr. Gannon: They tend to be minor -- minor -- more minor offenses.

Justice Stephen G. Breyer: --Okay.

What I'm afraid of is this: That once you put this in your category, that you say crimes of violence are not crimes of moral turpitude, then to a large extent you have said good-bye, Justice or Attorney General Robert Jackson.

Mr. Gannon: I don't--

Justice Stephen G. Breyer: You are saying good-bye to Jackson and Thornburgh, because you have driven such a wedge between these two statutes that there's hardly anybody who would be able to qualify for the Jackson-Thornburgh approach to this statute.

Mr. Gannon: --I just--

Justice Stephen G. Breyer: I overstate slightly, but you see my point.

Mr. Gannon: --I see your point, Justice Breyer, and if you look at all of the cases that predate the era that we are talking about here, they all -- almost all involve two categories of defenses, drug trafficking or controlled substance offenses and crimes involving moral turpitude, things that were actually charged under the ground of deportation for crimes involving moral turpitude.

And here, Congress added aggravated felonies to the deportation side of the ledger, but didn't add it to the exclusion side of the ledger.

And then it repeatedly expanded the definition of 1988 and 1996 in ways that made these offenses treatable in different ways for purposes of deportation than they were for exclusion.

And as a category--

Justice Sonia Sotomayor: Well, I keep going back to my question.

There's only one category now, aggravated violent felony.

That's the only category you are looking at.

It doesn't matter, in your judgment.

That -- that is your test.

Mr. Gannon: --That's -- I disagree, Justice Sotomayor.

Justice Sonia Sotomayor: If it qualifies as an aggravated violent felony, it cannot be a crime of moral turpitude.

Mr. Gannon: I disagree with that -- the fact that that's the category we are looking at.

We're looking inside the definition of aggravated felony, to the particular ground which is crimes of violence.

And then what we are saying is that the analysis needs to be done at a categorical level.

And the board has said that you cannot get a 212(c) waiver from a ground of deportability unless that ground of deportability is substantially equivalent to a waivable ground of exclusion.

Justice Sonia Sotomayor: Let's go back to a concrete example following Justice Ginsburg's example.

Someone is charged with a crime of violence, voluntary manslaughter.

And would an officer at the airport say you're not admittable; that's a crime involving moral turpitude?

Could the officer say that?

Mr. Gannon: Yes, the officer could say that.

Justice Sonia Sotomayor: And could he then waive that ground under 212(c)?

Mr. Gannon: Generally, yes.

I mean -- we are talking about pre-1996 offenses.

Justice Sonia Sotomayor: Now let's assume that he did, that he waives that crime of moral turpitude.

Would the government now put that individual in deportation and say this voluntary manslaughter doesn't meet the statutory counterpart test.

So for that very crime, we are going to deport you, even though we let you in, because it's a crime involving violence.

Mr. Gannon: We don't have any examples like that, and--

Justice Sonia Sotomayor: Would you?

Can you?

Mr. Gannon: --And -- I--

Justice Sonia Sotomayor: Is that where your test leads you?

Mr. Gannon: --Well, ultimately, even the durability of the 212(c) waiver wouldn't necessarily have protected somebody against a subsequent proceeding.

Justice Ruth Bader Ginsburg: But yet in your brief, I thought you conceded that.

Mr. Gannon: We--

Justice Ruth Bader Ginsburg: That -- just the example that Justice Sotomayor gave.

Somebody is declared inadmissible because it's a crime with manslaughter or aggravated felony crime of violence is on the admissibility side a crime involving moral turpitude, so he's allowed in.

And then he's in and he's declared deportable and he can't get a waiver because there's no analogue.

I thought your brief said yes, that's the consequence of our argument; however, prosecutors would not seek deportation if inadmissibility had been waived.

Mr. Gannon: --Well, we -- the brief did say that this is hypothetically possible.

I am aware of no instances in which it has happened, and we don't have a board decision about what the effect of the earlier waiver would be on a non-comparable ground in a subsequent deportation proceeding.

And I do think, however, that, regardless of the prosecutorial discretion point here, even if the board were to conclude that the 212(c) waiver carried across and would prevent this alien from being deportable in a subsequent proceeding, an important purpose would still be served by encouraging the alien to get himself into exclusion proceedings at the beginning, because that is what several courts have concluded would be a rational basis for differential treatment in encouraging aliens to seek 212(c) waivers in the exclusion context.

Congress, when it adopted the aggravated felony definition and repeatedly expanded it, it was concerned about criminal aliens in this country, and ways to get them out of this country.

And so, to the extent that 212(c) relief still is available for certain LPRs who meet certain threshold criteria and they are being deported on the basis of crimes that would have made them inadmissible -- if an alien then wants to seek 212(c) relief, he can get himself into an exclusion proceeding, or he could seek advanced parole on the I-191 form that Petitioner--

Justice Stephen G. Breyer: You are also telling me that -- I didn't know this; I learn something in every argument -- that if we have Jack the cat burglar who was burgling dozens of office buildings -- and abroad -- and assaults people and hits them over the head or whatever with his -- I guess with his fist, that we have no way of excluding that person, should he try -- I -- I have heard criticisms of our immigration policy, but this is surprising to me, that we have no way of excluding that person who is filled with the simple burglary of office buildings and assaults.

Mr. Gannon: --Well, there was a separate ground which is two crimes, any two criminal offenses.

Justice Stephen G. Breyer: So he has only done it once; we have to let him--

Mr. Gannon: If he has only done it once, then it may well be that it wouldn't qualify.

But the board has repeatedly declined to consider whether such a crime, which would be -- could potentially be a ground for exclusion would automatically guarantee that -- that the alien could receive a waiver of any ground of deportability based on the same conviction.

And -- and when my friend--

Justice Stephen G. Breyer: --I take it they haven't decided.

So--

Mr. Gannon: --No, I'm saying that the board repeatedly declined to apply this analysis in the context of firearms offenses and visa fraud offenses where the alien said my offense is a crime involving moral turpitude; I could have been charged with being -- I could have been excluded on the basis of my visa fraud offense or my assault with a firearm, because assault with a fire arm is a crime involving moral turpitude.

Justice Sonia Sotomayor: Could I ask just a practical question?

Does this issue go away finally when there are no more St. Cyr people?

Meaning is there -- there is no 212(c) anymore.

Mr. Gannon: Well, there -- there is a new provision, cancellation of removal, which indisputably just simply is unavailable to anyone with a aggravated felony conviction.

Justice Sonia Sotomayor: Exactly.

Mr. Gannon: And -- and--

Justice Sonia Sotomayor: And so really the issue that we have at the moment is whether your decision to effect what has happened now in the past, to do what Congress has done moving forward, and to avoid St. Cyr, is just to say, if it's an aggravated crime of violence it just doesn't qualify anymore.

That's what you are doing.

You're not giving 212(c) to anybody anymore?

Mr. Gannon: --Well, we're -- we're giving it to aliens like this, aliens who have older convictions, pre-1996 guilty pleas--

Justice Sonia Sotomayor: But you were just saying if they are aggravated -- if they've committed an aggravated crime of violence they are not getting it anymore.

Mr. Gannon: --That -- that is if it was a crime that was -- a conviction that occurred after 212(c) was repealed.

So for instance, in this case if on remand the board considered one of the other charge grounds of deportation.

Justice Sonia Sotomayor: But this whole thing goes away once all the St. Cyr people have--

Mr. Gannon: Yes, because 212(c) only lives on by virtue of St. Cyr right now.

And I -- but -- but I do want to stress that this -- I think Justice Kagan was correct to point out that this was clarifying a previous state of the law.

We believe that there are very clear principles on the cases that are cited on page 41 of our brief, that the board had refused to do the analysis on -- on a conviction level as opposed to a categorical level, and my friend keeps quoting Attorney General Thornburgh's opinion in Hernandez-Casillas for his readoption of the nunc pro tunc doctrine, but I would like to point out that the Attorney General there made it very clear in his holding that he was reaffirming the statutory counterpart doctrine as it existed at the time, and at page 291 of his opinion he says that he rejects the board's attempts to extend 212(c) to, quote,

"grounds of deportation that are not analogous to the grounds for exclusion listed in section 212(c). "

Justice Ruth Bader Ginsburg: But he also said that there are only two grounds for deportation that have no analog in the grounds for exclusion.

Mr. Gannon: That's -- you're--

Justice Ruth Bader Ginsburg: Entry without inspection and firearms conviction.

Mr. Gannon: --That -- that is what footnote 4 of the opinion says.

That is clearly an under-inclusive list because it doesn't include visa fraud offensives which had already been recognized in Wadud as being a category that did not have a comparable ground, and -- and that was reaffirmed later in the Jimenez-Santillano opinion.

My friend quotes the Jimenez-Santillano opinion in -- in his reply brief for the proposition that Wadud was really about the facts.

This was his answer to you, Justice Scalia.

But if you look at the Jimenez summary of what actually happened in Wadud, the other half of the sentence that's being quoted there says the board in Wadud, quote,

"observed that we did not need to decide whether Respondent's 1546 offense was a crime involving moral turpitude because no ground of inadmissibility enumerated in section 212(a) of the act was comparable to section 1546. "

And so--

Justice Samuel Alito: Do you know how potentially how many people may be affected by the decision in this case?

Mr. Gannon: --I don't have a good estimate of that because we don't know how many offenders with pre-1996 guilty pleas will end up being picked up by immigration authorities and -- and charged under these circumstances.

Petitioner is somebody who at -- at the time he committed his offense wasn't even an aggravated felon.

It's only by virtue of the retroactive applicability of the definition that he became an aggravated felon.

And so that makes the sort of St. Cyr question about his reliance a -- a bit perplexing here.

At the time when he was pleading guilty to voluntary manslaughter, because it wasn't within 5 years of -- of entry, it wouldn't have been a crime involving moral turpitude and therefore it wouldn't have been a ground for deportability, and it also was not yet an aggravated felony.

So he had no reason to think he was pleading guilty to a deportable offense.

Justice Samuel Alito: But do you know how many times this has come up in cases over, let's say the past 5 years?

Mr. Gannon: I don't know how many times that -- all of the cases that are cited in Petitioner's brief and -- and the amicus brief, there is a gap between 1996 and about 2003, because of the repeal of 212(c) and St. Cyr and the regulations.

There was about a 7-month period after the regulations before the board decided Blake and Brieva-Perez.

There are on the order of several hundred 212(c) applications that are being granted by the board each year right now, but that's with a backlog of cases some of which have been pending for -- for an incredibly long time.

Justice Elena Kagan: You said, Mr. Gannon, the government no longer treats people differently depending on whether they left the country and returned or haven't left at all.

Mr. Fleming points out that you said the opposite in your brief opposing cert. He said that--

Mr. Gannon: I -- I appreciate your chance to let me clarify, Justice Kagan.

In our brief in opposition, we stated that an alien could avoid the statutory counterpart rule by leaving the country.

That meant that by getting himself into an exclusion proceeding, the statutory counterpart rule then would not be applicable.

It didn't mean that had he left the country, come back if they did an exclusion proceeding and they put in a subsequent deportation proceeding, that the statutory counterpart rule wouldn't apply.

Chief Justice John G. Roberts: Thank you, Mr. Gannon.

Mr. Fleming, you have 6 minutes remaining.

REBUTTAL ARGUMENT OF MARK C. FLEMING ON BEHALF OF THE PETITIONER

Mr. Fleming: Thank you, Mr. Chief Justice.

I would begin simply by following up on the questions that Justices Ginsburg and Kagan asked to my brother about my client could have been charged as deportable with his conviction treated as a crime involving moral turpitude.

In fact, he was.

If one looks at the decisions in the appendix to the petition for certiorari, specifically at page 11A, it's clear that his conviction is asserted not only as an aggravated felony crime of violence, but also as a crime involving moral turpitude, and the immigration judge found that he was in fact deportable with that conviction forming a crime involving moral turpitude.

So there is no dispute here that Mr. Judulang's conviction falls into both categories.

On the issue of the factual basis of my client's deportability at the time of the plea, Mr. Gannon is correct; there is nothing in the administrative record that says that, and that is why this Court typically does not countenance arguments based on the facts by the respondents that are raised only in the brief on the merits.

If anyone had suggested that this was an issue on which a factual record needed to be developed, we could have done it; it would not have been hard.

I also want to comment on one point that Mr. Gannon made, which is the thing that -- that is waived under 212(c) is a ground of deportation.

That's not correct.

Section 212(c) provides relief from inadmissibility.

It says that clearly in its text; that is how the regulations and the decisions have always treated it.

The form that immigrants are instructed to fill out, form I-90 -- I-191 which is appended to our blue brief specifically says: State the reasons you may be inadmissible to the United States.

If a waiver of inadmissibility is granted, that waiver protects the immigrant from subsequent deportation based on the same conviction.

That is the language of Matter of G-A, which the government itself excerpts in its brief; and Justice Ginsburg is correct, that is -- they admit that a waiver is durable in that sense.

If it is granted to waive inadmissibility, it protects the alien from deportation on any deportation subsection based on that same conviction.

I thought it was telling, Justice Breyer, in reaction to your question which -- which was seeking an explanation of how this scheme is reasonable, the answer that counsel for the government gave was that the BIA has been consistent with firearms and visa fraud cases, but there was no explanation as to how the Blake rule as it is now drawn is in any way a reasonable application of the law.

I would submit for the reasons that Your Honor pointed out, which is that we have a number of -- whether one calls them convictions or whether one calls them categories of crimes -- voluntary manslaughter, aggravated burglary -- recall that we are talking about aggravated felony crimes of violence.

I recognize that if we talk about third degree burglary, which could be charged on the basis of someone opening an unlocked door and walking across the threshold, maybe that's not a crime involving moral turpitude but it is probably is not an aggravated felony crime of violence either, certainly not in this Court's decision.

So I would submit that the government has not identified a crime that would be both an aggravated felony crime of violence and yet not a crime involving moral turpitude.

The overlap is, I would submit, total.

And even if it's not total, that is not the end of our argument because the board itself has said you, don't need a perfect match; you just need substantial overlap.

And the overlap is at the very least substantial, if not complete.

The crime that was charged in Brieva-Perez itself, unauthorized use of a vehicle under Texas law, has subsequently held by the Fifth Circuit not to be an aggravated felony at all.

So Brieva-Perez on its own terms is no longer good law as we point out in our reply brief.

The interest that Mr. Gannon asserted at one point about getting immigrants to put themselves into exclusion proceedings, this is a very important point.

The agency has never suggested that that is the way that it runs the railroad.

On the contrary, it has expressly said the opposite.

It does not matter whether the 212(c) application is filed in exclusion proceedings, in deportation proceedings, or outside of proceedings entirely by sending a letter to the district director saying: Please give me an advance waiver before I travel abroad.

The regulations make very clear and the decisions make very clear, I quoted matter of AA in my opening argument, that an application is identical and a relief that is given is identical, regardless of the proceedings.

For Mr. Gannon to stand up and say that the agency is now creating a sharp distinction, saying that applications filed in exclusion are omnipotent, and applications filed in deportation proceedings are meaningless is a clear change in the law, and it is unfair to apply it against immigrants like Mr. Judulang and others who relied on the availability of section 212(c) as protection from removal, whether exclusion or deportation in the future, when they pled guilty.

Justice Sotomayor, your question about how many people are involved here, it is difficult to identify specific numbers because very often these cases are decided at the immigration judge level that are not reported.

In the appendix to our petition for certiorari we identified over 160 people who have been subject -- who have suffered under the Blake rule since Blake was decided in 2005.

And part of the problem is that we are talking about a group of people who have been in the country for a long time, whose convictions are dated, who are law abiding, who are reformed, and they only come to the attention of the authorities subsequently through perfectly law abiding conduct such as applying for naturalization or renewing a green card so that they--

Justice Sonia Sotomayor: If they weren't law-abiding, they would have committed a new felony that would render them inadmissible--

Mr. Fleming: --And potentially subject them to removal, exactly.

And there might be other forms of relief, as Mr. Gannon mentioned.

But -- That's certainly right.

But a good number of the people here who have been harmed by the Blake rule are people who are the most deserving candidates for relief.

And the NIJC brief, I think, sets that out I think quite convincingly.

We would submit that the only reasonable approach here is the one that the agency took for years under Meza and under the eight decisions that Justice Breyer referenced where the immigration knew the rule, they applied it, they looked to the conviction, they figured out whether the conviction would trigger excludability; if it did, then the alien was entitled to apply on the same basis and with the same effect as if he had found himself in exclusion proceedings.

The judgment should be reversed, and Mr. Judulang should be allowed to file his application for adjudication on the merits.

Chief Justice John G. Roberts: Thank you, counsel.

Counsel, the case is submitted.