Judulang v. Holder (10-694)
argument 10-694Judulang v. Holder
Supreme Court of the United States
1h 0m
7 speakers
8 chapters
transcribed 4 days ago
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What is the legal background of the Hernandez Casillas and Matter of MASA decisions?
We'll hear argument next in case ten six ninety four, Drudelang versus Holder. Mr 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. Two months later, in its published decision in matter of MASA, 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 Judilang'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.
How do you explain the language in in matter of wadood which Andy dates by a good deal those two cases, nineteen eighty four. Which says Section two twelve 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
that's the basic point. 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 eighteen USC fifteen forty six and the BIA had held, in a case called Matter of R G in nineteen fifty eight, that that conviction did not render him excludable. And that's confirmed later in the case of matter of Jimenez Santiano, which also involved a fifteen forty six conviction. Where the BIA says that if Mr Jimenez had left the country and returned, it appears that he would not have been inadmissible and compares that situation to someone convicted of a firearms offence, which the Board and the Attorney General had always said were not waivable.
To the extent there's any ambiguity in the language that your Honor read, it could not have survived the Attorney General's decision in Hernandez Cassius, which I just quoted at the beginning of the presentation, which said that what one looks to is whether the alien in exclusion proceedings would be able to invoke Section two hundred twelve C relief. And when the board then addressed the case of the aggravated felony in matter of Mesa, It did not even address Wadud or view it as binding at all. It looked to the conviction and whether it uh 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 co the co uh the BIA cited not Wadud, not any of the other cases that the government is relying on, but cited Mesa 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. Mr F and in fact, yes, Justice Kagan. Please finish i if I may, I was just going to say that in 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. You cite some cases, you say there was a dramatic change in the law. The government cites some cases and it says there was no change in the law. What if the truth lies someplace in the middle? What if in fact when you look before Blake, what you see is some amount of confusion? that the board sometimes was following the Blake rule. But that in other times individual judges or maybe the board itself uh were doing something different because the individual circumstances suggested that they should.
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Chapters
8 chapters
1
What is the legal background of the Hernandez Casillas and Matter of MASA decisions?
0:01–8:49
2
How did the BIA’s Blake decision change the interpretation of Section 212 C?
8:49–15:50
3
Why do the parties argue that Blake’s rule is retroactive and arbitrary?
15:50–24:17
4
What does Saint Cyr say about fair notice, reliance, and settled expectations?
24:17–31:53
5
How do the justices view the relationship between waivers of inadmissibility and deportation?
31:53–38:51
6
What is the significance of categorizing crimes as ‘crime of violence’ versus ‘moral turpitude’?
38:51–44:39
7
How might the Blake rule affect immigrants who pleaded guilty before 1996?
44:39–52:05
8
What are the final arguments about the fairness and future of Section 212 C relief?
52:05–1:01:00