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March-April 2012

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BEHIND THE CASE by Sheeba Raj CASE: Judulang v. Holder, No. 10-694, 565 U.S. ___, 2011 (12/12/2011). ATTORNEY: Mark Fleming, WilmerHale LLP SCt.: BIA "Comparable Grounds" Test is Arbitrary and Capricious C omparing it to a "coin flip," the U.S. Supreme Court invalidated the Board of Immigration Appeals' (BIA) "comparable grounds" test, calling it "arbitrary and capricious" under the Administrative Procedures Act. In a unanimous ruling in Judulang v. Holder, No. 10-694, the Court wrote, "By hing- ing a deportable alien's eligibility for discretionary relief on the chance correspondence between statu- tory categories—a matter irrelevant to the alien's fit- ness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner." Under this now-defunct approach, lawful perma- nent residents in the United States with pre-1996 convictions could apply for INA §212(c) relief only if they demonstrated that the ground of deportation was comparable to a ground of inadmissibility. When he first started litigating the case, Mark Fleming, a partner in WilmerHale LLP's Boston of- fice, said no courts of appeals had analyzed the BIA's "comparable grounds" approach first announced in In re Blake, 23 I&N Dec. 722, 728 (2005), and in In re Brieva-Perez, 23 I&N Dec. 766, 772–73 (2005), because it was rather new. While the Judulang case was before the U.S. Court of Appeals for the Ninth Circuit, however, other circuits were upholding the BIA's approach. Then, several days before Fleming argued the case in the Ninth Circuit, the U.S. Court of Appeals for the Second Circuit issued its opinion in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), re- fusing to follow the BIA's approach. 24 VOICE "All of a sudden," said Fleming, "an issue, that while interesting, had not gotten much play in the federal courts, was the subject of a circuit split, and we an- ticipated at some point it would be ripe for the Su- preme Court to review the case, but we certainly did not expect that it would be Mr. Judulang's case that would be the vehicle that the Court would choose." Fleming values his collaboration with lawyers and organizations in mounting Judulang's success- ful defense. In addition to receiving amicus briefs from AILA and National Association of Criminal Defense Lawyers, former immigration officials from the Department of Homeland Security "filed what I thought was a very persuasive brief setting forth their view on what the law had been prior to Blake and Brieva," Fleming recounts. "I am not an immigration lawyer by training, so it was important for me to immerse myself as much as I could [and consult] with people who practice in those areas full time so that I would be in a position to assist the Court in understanding our position and arriving at the right answer." Fleming recommends either working with an at- torney who has handled Supreme Court cases or studying the protocol, because "[y]ou can't simply reproduce the arguments that you had presented either to the agency or to the courts below." Con- ferring with colleagues to brainstorm about what questions to anticipate from the justices and the an- swers that most effectively present the client's posi- tion also helps, he said. NEED MORE ON CRIMINAL- ALIEN LAW? Buy Immigration Consequences of Criminal Activity, 4th Edition by Mary E. Kramer BUY

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