In an editorial in The New York Times earlier this year, the newspaper endorsed a Supreme Court opinion that confirms what many deportees and deportable individuals have always known: deportation law is arbitrary and unfair not to mention heartbreaking.
January 2, 2012
A stinging opinion by Justice Elena Kagan for a unanimous Supreme Court reinforced last month a message that lower courts have been sending for many years: the law applied in immigration cases too often fails to meet the standards of justice.
In Judulang v. Holder, the failure was total: a decision on deportation that made no sense. As Justice Kagan pointedly wrote, “We must reverse an agency policy when we cannot discern a reason for it.” That judgment, unfortunately, applies to much of the snarled and absurd processes in the immigration courts.
The case is about the policy the Board of Immigration Appeals uses in deciding when a resident alien who has been ordered deported can apply to the attorney general to overturn that order. Joel Judulang, a native of the Philippines, has been a permanent resident of the United States since 1974 when he was 8 years old. At 14, he pleaded guilty and received a suspended sentence for voluntary manslaughter after taking part in a fight in which someone else shot and killed another person. In 2005, after he pleaded guilty to a theft, the government began deportation proceedings based on the manslaughter conviction, and an immigration judge ordered him deported.
In determining whether Mr. Judulang could apply for a waiver from deportation, the board looked to a repealed law, which dealt with excluding aliens from admission to this country. If the basis for deporting an alien is “essentially equivalent” to a basis in the law for excluding someone, the board said, the deportee could apply for a waiver. But it ruled that Mr. Judulang could not because the grounds for his deportation were not comparable to the grounds that apply to exclusion.
Justice Kagan properly pointed out that this analysis was essentially arbitrary. The board made “an irrelevant comparison between statutory provisions,” which had nothing to do with Mr. Judulang’s fitness to remain in the United States. Instead, it turned a deportation decision into a “sport of chance,” like “flipping a coin — heads an alien may apply for relief, tails he may not.”
The board’s ruling in this case was irrational, but at least it issued a written opinion. Often, the board rubber-stamps deportation rulings with no written opinion or explanation, making it almost impossible to appeal in the federal courts. The board’s decision-making process reflects the dysfunction of the overburdened immigration court system, which is in need of a complete overhaul.