Judulang v. Holder - Oral Argument - October 12, 2011

Judulang v. Holder

Media for Judulang v. Holder

Audio Transcription for Opinion Announcement - December 12, 2011 in Judulang v. Holder

Audio Transcription for Oral Argument - October 12, 2011 in Judulang v. Holder

John G. Roberts, Jr.:

We will hear argument next in Case 10-694, Judulang v. Holder.

Mr. Fleming.

Mark C. 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--

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.

Mark C. 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--

Elena Kagan:


Mark C. Fleming:

--And in fact -- yes, Justice Kagan?

Elena Kagan:

--Please finish.

Mark C. 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.

Elena Kagan:

You cite some cases.

You say there was a dramatic change in the law.