U.S. Supreme Court ruling for Pinoy could slow down massive deportation

January 8, 2012 12:21 pm 

By Joseph G. Lariosa

CHICAGO, Jan. 8 -– A decision by the United States Supreme Court last month, staying the deportation of a Filipino immigrant convicted of voluntary manslaughter, could slow down the deportation of nearly 393,000 people in the fiscal year that ended Sept. 30, half of whom were considered criminals.

Joel Judulang, 45, of Los Angeles, California, was ordered released from detention by a unanimous decision last Dec. 12 of the Supreme Court penned by Justice Elena Kagan, describing the new policy of the government’s Board of Immigration Appeals “as arbitrary and capricious on its own merits, even apart from retroactivity concerns.”

Judulang was born in the Philippines and was brought to the United States in 1974 at the age of eight. He had continuously resided in the U.S. for 36 years. His grandfather served in the U.S. military in the Philippines between 1923 and 1948 and became a U.S. citizen.

His parents were also naturalized. He has a 15-year-old daughter, who is a native-born U.S. citizen, as are his four nephews and two nieces, and his two sisters and an older brother, who is also lawful permanent resident, like himself.

His parents did not apply him for naturalization because “they did not know the intricacies of immigration law.”

In 1988, when Judulang was 22, he was involved in a fight in which another person shot and killed someone. Judulang was not the shooter and he was charged as an accessory. Because of his minor involvement and cooperation with authorities, he was allowed to plead to voluntary manslaughter and received a six-year suspended sentence. He served fewer than two years in county jail and was released on probation immediately after his plea.

AGGRAVATED FELONY CRIME OF VIOLENCE

In 2005, the government initiated deportation proceedings against Judulang based on his conviction for voluntary manslaughter described by the government’s Immigration Judge as “aggravated felony crime of violence.” The IJ informed Judulang that “Section 212(c)(c)” of the Immigration and Nationality Act “could have been applied to your manslaughter conviction,” but his six-year suspended sentence disqualified him from relief, such that he was unable to submit an application.

The former section 212(c) of the Act provides that an alien lawfully admitted for permanent residence who temporarily goes abroad voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted to the United States at the discretion of the Attorney General.

But his lawyers told the Supreme Court that the IJ’s ruling “was doubly wrong.” The bar on Section 212 (c) relief for LPRs (lawful permanent residents), who served a “term of imprisonment of at least five years” was added in 1990 and does not apply to Judulang’s 1989 conviction. And even if it did, the 1990 Act refers only to time served, and Judulang served fewer than two years. Although the IJ found Judulang deportable for a second conviction, neither the BIA (Board of Immigration Appeals) nor the Ninth Circuit (Court in San Francisco, California) relied on that theory and it is not before the Court.

The Ninth Circuit denied Judulang’s petition for review and denied rehearing. Justice Anthony Kennedy granted a stay of judgment pending review, allowing Judulang’s release from custody on bond pending appeal. He now lives in Los Angeles with his elderly mother, a U.S. citizen, and works to support himself and his family.

In its ruling, the Supreme Court said, the Ninth Circuit’s approach offers no basis for affirming the judgment below.

IMPROPER RETROACTIVE CHANGE

First, the previous holding in the case represents an improperly retroactive change in BIA’s preexisting policies. “The change is too abrupt; the reliance on the old regime is too significant; the effect on private interests is too severe; and any statutory interest in retroactivity is attenuated at best.”

Second, the BIA’s new policy is arbitrary and capricious on its own merits, even apart from retroactivity concerns. The BIA has made eligibility for Section 212(c) relief turn on semantic differences in the exclusion and deportation provisions — differences that have no connection whatsoever to congressional intent regarding eligibility for Section 212(c) relief. And they resurrect a distinction based on the “irrelevant and fortuitous factor” of a deportable LPR’s recent travel history — a distinction the agency has avoided for decades. And

Third, the distinction among deportable LPRs based on “travel history violates equal protection or, at a minimum, raises serious equal protection concerns. There is no rational basis for distinguishing between.” The ruling said if Section 212(c) relief waives exclusion based on particular criminal conviction, it also waives deportation based on the same conviction.

It added that if a single act can be the basis of both excludability and deportability, and excludability is waived by the Attorney General, “then the act, without more, cannot be the basis of a deportation charge.”

JUDULANG NEVER LEFT U.S. FOR 36 YEARS

It also emphasized that if an LPR would have been eligible for relief had he or she left the country and been placed in exclusion proceedings upon return, according to Sec. 212(c), then, there was no legitimate reason to treat the LPR as ineligible simply because he or she failed to depart before the proceedings had begun. Judulang has lived all his 36 years in the U.S. and has never left.

Until repealed in 1996, Section 212(c) let the Attorney General grant discretionary relief to an excludable alien, if the alien had lawfully resided in the United States for at least seven years before temporary leaving the country and if the alien was not excludable on one of two specified grounds.

An alien seeking entry into the U.S. (whether for the first time or upon return from a trip abroad) is placed on an “exclusion proceedings” while an alien already in the U.S. is placed on “deportation proceedings.”

Although crimes involving moral turpitude (CIMT) encompass so many offenses, like theft, fraud, larceny, etc., they are considered excludable offenses that can be waived by the Attorney General while crimes such as first-degree sexual abuse of a child, murder and rape are considered “aggravated felonies” that are deportable offenses not listed under excludable or inadmissible offenses.

If the thousands of deportable aliens find out that their offenses would fall under the “excludable” offenses, they could always ask to stay their deportations by citing the Judulang ruling.

Of the 393,000 people arrested at the end of September, 27,635 had been arrested for drunken driving, which is not listed as a deportable offense.

Last year, 36,178 criminals were deported as a result of the Secure Communities program, now in place in more than 1,400 jurisdictions, up from 14 in 2008. It is expected to be in more than 3,000 jurisdictions nationally by 2013. (PNA) DCT/JGL

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