The Supreme Court’s decision in Judulang v. Holder has broader implications than those listed in the decision. While the decision clearly rejects the agency’s interpretation of the “comparable grounds” test for 212(c) waiver eligibility, the real lesson form Judulang is an indictment of the arbitrary way in which the Department of Justice has applied certain sections of the immigration statute.
One area that will likely be affected is the topic of “particularly serious crimes.” A person is barred from seeking asylum or withholding of removal if she has been convicted of a “particularly serious crime,” because she is a “danger to the community.” But the statute does not define which crimes are “particularly serious,” and the Attorney General has done a terrible job of filling in the gaps. Matter of Frentescu, 18 I. & N. Dec. 244, 246 (BIA 1982) lists factors the BIA typically considers in deciding this question. But the decisions that have followed are all over the place. For example, in Matter of De La Cruz, 20 I. & N. Dec. 346, 350 (BIA 1991), the Board stated without explanation that the term “danger to the community” is not equivalent to the term “threat to the community.” Sometimes it matters if crime is “inherently dangerous,” notwithstanding the lack of actual injury. Matter of Rodriguez-Coto, 19 I. & N. Dec. 208 (BIA 1985); Matter of Garcia-Garrocho, 19 I. & N. Dec. 423 (BIA 1986). Other times the inherent dangerousness doesn’t matter as long as no-one was actually injured. Matter of L-S-, 22 I. & N. Dec. 645 (BIA 1999). Sometimes violent crimes are “particularly serious.” E.g. Matter of B-, 20 I. & N. Dec. 427 (BIA 1991). Other times they are not. Matter of Juarez, 19 I. & N. Dec. 664 (BIA 1988).
It is hard to distinguish this chaos from the system for deciding 212(c) waivers prior to Judulang. Tenth Circuit Chief Judge Robert Harlan Henry has described it, in concurring with the majority opinion in N.A.M. v. Holder, as a “moving target” and pointed to the BIA’s “continually competing and definitionally inconsistent” constructions. 587 F.3d 1052, 1058-1060 (10th Cir. 2009)(Henry concurring). If there is a lesson from Judulang, it is that the agency must get its act together. While Congress has not done the Department of Justice any favors in implementing rules that contain little explanation, the Department of Justice has as its task the application and interpretation of those rules – and how it does so, it must not be arbitrary or capricious.