By Kimberly Atkins
The Daily Record Newswire
BOSTON — In a debate that involved dueling federal statutes and immigration case law, the justices of the U.S. Supreme Court questioned last week whether a permanent resident may seek discretionary relief from removal based on a conviction where he did not depart and reenter the United States.
Joel Judulang, a Filipino national and permanent U.S. resident since the age of 8, pled guilty to charges of voluntary manslaughter in 1989 in connection with a street fight that ended in the death of a man. After two years in prison, the remainder of his six-year term was suspended.
Subsequently, Congress expanded the definition of “aggravated felony” to include “crimes of violence” punishable by at least a year in prison. The expanded definition was applied retroactively.
In 2005 the government instituted removal proceedings against Judulang based on his manslaughter conviction. He was deemed removable and ordered to be deported.
Judulang appealed, arguing that under federal law at the time he qualified for discretionary relief from removal.
Federal law allowed discretionary relief in cases where residents left the country for a short period of time and sought reentry but were determined inadmissible. Because the law allowed relief for similar residents who faced deportation and did not leave the country, Judulang argued that he should qualify for relief.
But the Board of Immigration Appeals dismissed Judulang’s appeal, citing the case In Re Blake, which held that such discretionary relief is available in deportation cases only where Congress has employed similar language to describe the categories of offenses.
Because the inadmissibility law had no “aggravated felony” or “crime of violence” category (it does have a category involving “crimes involving moral turpitude”), Judulang was not eligible for relief, the BIA held.
The 9th Circuit denied review and the Supreme Court granted certiorari.
Mark C. Fleming, a partner in the Boston office of WilmerHale, argued that the Blake decision constituted a “radical change” in the law that only Congress is allowed to make, not the BIA.
“[Congress] said nothing suggesting that people who had committed aggravated felony crimes of violence were all of a sudden ineligible [for] relief, even though it could have said that,” Fleming argued.
Justice Elena Kagan asked if the ruling in Blake simply sought to add clarity to a confusing state of law.
“You say there was a dramatic change in the law,” Kagan said. The government [says] there was no change in the law. What if the truth lies someplace in the middle?”
“We don’t think that is the proper way to understand Blake,” Fleming said.
Justice Samuel Alito noted that less serious crimes than Judulang’s would prevent other residents from reentering the country under the exclusion he sought.
“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?” Alito asked.
“He would not be eligible, that’s correct,” Fleming said.
“Isn’t that strange?” Alito asked.
“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,” Fleming said.
Curtis Gannon, assistant to the U.S. solicitor general, argued that Judulang is making his legal position seem more cut-and-dried than it is.
“His methodology of asking whether his offense could have made him excludable is inconsistent with established cases from the board,” Gannon said.
Justice Stephen Breyer said Blake seems to be inconsistent with the statutory scheme for determining who should get relief.
“Rape, burglary, manslaughter, second degree robbery, indecency with a child and probably some others are all ‘crimes of moral turpitude,’” Breyer said. “Then I find Blake, and Blake says sexual abuse of a minor is not a crime of moral turpitude. That’s a little surprising. … I don’t understand it. So I would like you to explain to me why this all fits together.”
Gannon acknowledged the “complicated” history of the law, but said “the board has been very consistent.”
“[Take] firearms offenses,” Gannon said. “The board there has continued to say that there is no comparable ground [for relief in] firearms offenses, even if your firearms offense would be something that
could have been considered a ‘crime involving moral turpitude.’”
“Is there any aggravated felony crime of violence that is not a crime involving moral turpitude?” asked Justice Ruth Bader Ginsburg.
“Yes, minor but relatively common crimes of violence, [such as] assaults and burglary,” Gannon said.
A ruling is expected this term.
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