The defendant, Mr. Suarez, is a native of Mexico who became a lawful
permanent resident (LPR) of the U.S. in 1978. He filed his application
for naturalization with the INS in 1996. His application disclosed a
marijuana offense from the 1980s, as well as disorderly conduct and
trespassing charges during the 1990s. He explained to the INS officer
that all of those charges had been dismissed. However, he did not reveal
that he had more recently committed additional marijuana-related
offenses for which he had not been charged. The INS approved the
application and Suarez became a citizen on May 14, 1998.

On August 27, 1998, the U.S. charged Suarez and three other defendants
with possession with intent to distribute over 195 pounds of marijuana,
in violation of 21 USCA § 841(a)(1), and a related conspiracy offense
under 21 USCA § 846. Both charges alleged that the criminal activity
occurred between June 1996 and October 1996, a few months prior to the
filing of Suarez’s naturalization application. A jury found Suarez
guilty on both counts and he was sentenced to an 87-month prison term.
The criminal court found that Suarez was a manager of at least one
participant in the conspiracy and therefore enhanced his sentence on
that basis. The Seventh Circuit affirmed the federal district court’s
judgment on direct appeal–U.S. v. Suarez, 2000 WL 197927 (7th Cir.
2000). Three years after his release from prison, the government filed a
complaint to revoke his naturalization under three separate theories:
(1) Suarez illegally procured his naturalization because he committed
crimes that reflected adversely on his moral character; (2) he illegally
procured his naturalization because he provided false testimony; (3) he
willfully misrepresented and/or concealed that he had committed the drug
crimes.

The district court granted summary judgment to the government on the
first theory, holding that Suarez illegally procured his naturalization
because, as a person lacking in good moral character (GMC), he was
ineligible for naturalization. The lower court rejected Suarez’s
argument to the effect that extenuating circumstances mitigated his
unlawful acts so that he could still be found to possess GMC at the time
of his naturalization. The district court noted that, under Suarez’s
argument, a person who was convicted before applying for naturalization
would be barred from citizenship, but a person who committed the same
crime and managed to evade justice until after naturalization would be
eligible for citizenship.

Before the circuit court Suarez reiterated that he cannot be found to
have illegally procured his citizenship because the INS had the
discretion and authority to grant his application notwithstanding his
unlawful acts. He also maintained that there were genuine questions of
material fact on the issue of whether extenuating circumstances
mitigated his unlawful acts, and that the lower court erred in relying
on the length of his criminal sentence as evidence of the seriousness of
his criminal acts.

Exercising de novo review, the circuit court explained that under INA §
340(a), the U.S. may sue to set aside an order admitting a person to
citizenship and to cancel that person’s certificate of naturalization
“on the ground that such order and certificate were illegally procured
or were procured by concealment of a material fact or by willful
misrepresentation.” In addressing the government’s “illegal procurement”
theory, the court focused on whether Mr. Suarez lacked the requisite GMC
as required by the statute, INA § 316(a)(3) [8 USCA § 1427(a)(3)]. It
expounded that, under INA §§ 101(f)(3) and (8) [8 USCA §§ 1101(f)(3) and
(8)], the listing of those lacking GMC includes persons who have been
convicted of or who have admitted committing certain controlled
substance offenses. The court considered that if a disqualifying offense
was committed during the statutory period when an applicant must possess
GMC, and the applicant is convicted of that offense, the applicant is
statutorily barred from a finding of GMC no matter when the conviction
occurs. It emphasized that the offense must occur during the statutory
period under § 101(f)(3), but the proof may come at any time. The court
remarked that to read the relevant statutes otherwise would lead to the
absurd result that the district court feared.

The court proceeded to conclude that there was a second reason why Mr.
Suarez was barred from a finding of GMC. It noted that § 101(f) contains
a catch-all provision, which provides that “the fact that any person is
not within any of the foregoing classes shall not preclude a finding
that for other reasons such person is or was not of [GMC].” The court
then referred to the applicable federal regulation, under which the INS
evaluates claims of GMC on a case-by-case basis taking into account the
elements enumerated in INA § 101(f) and the “standards of the average
citizen in the community of residence.” The court highlighted 8 CFR §
316.10(b) 2), which specifies that an applicant shall be found to lack
GMC if, during the statutory period, the applicant violated any law
relating to a controlled substance, provided that the violation was not
a single offense for simple possession of 30 grams or less of marijuana.
The court expressed that these regulations are entitled to Chevron
deference, and referred to a decision from the Eleventh Circuit,
U.S. v. Jean-Batiste, 395 F.3d 1190 (11th Cir. 2005), which affirmed a
denaturalization order in a case presenting similar facts.

In regard to the third way in which Suarez could be found to have
illegally procured his naturalization, premised on the regulation’s
unlawful act provision, 8 CFR § 316.10(b)(3), the court was not
impressed with the defendant’s argument that the INS could have found
“extenuating circumstances” in his favor, given the magnitude of the
drug offense and his role as an indispensable middleman. Thus it ruled
that he failed to raise a genuine issue of material fact sufficient to
defeat the government’s summary judgment motion.

UNITED STATES v. SUAREZ

UNITED STATES of America, Plaintiff–Appellee, v. Jose SUAREZ, Defendant–Appellant.

No. 10–3476.

Argued April 4, 2011. — December 16, 2011
Before KANNE, ROVNER and SYKES, Circuit Judges.

Kirsten L. Daeubler, Department of Justice, Washington, DC, for Plaintiff–Appellee.John D. Winters, Butler, Rubin, Saltarelli & Boyd, Chicago, IL, for Defendant–Appellant.

Jose Suarez committed two controlled substance offenses shortly before he applied for naturalization. Unaware of these offenses, the Immigration and Naturalization Service (“INS”)1 approved his application, and Suarez took the oath of allegiance, becoming a United States citizen. A few months later, he was indicted for the offenses he committed prior to filing his application. After Suarez was convicted and had served his sentence, the United States sought to revoke his naturalization pursuant to 8 U.S.C. § 1451(a). The district court granted the government’s motion for summary judgment and revoked his citizenship. Suarez appeals.

I.

Suarez is a native of Mexico who became a lawful permanent resident of the United States on July 17, 1978. In December 1996, he filed an Application for Naturalization with the INS. He revealed on the Application that he had been arrested for a marijuana crime in the 1980s, and for disorderly conduct and trespassing in the 1990s. He explained to an INS officer that all of the charges had been dismissed. What he did not reveal was that he had recently committed additional marijuana-related offenses for which he had not yet been charged. The INS approved his application on April 4, 1998, and Suarez became a citizen on May 14, 1998.

On August 27, 1998, the United States charged Suarez and three other defendants with possession with intent to distribute approximately 196 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1); and conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. Both charges related to the time period between June 1996 and October 22, 1996, a few short months before Suarez applied for naturalization. A jury found Suarez guilty on both counts and the district court sentenced him to an eighty-seven month term of imprisonment. In setting the sentence, the court determined that Suarez would be held accountable for eighty-nine kilograms of marijuana seized from his co-defendants as well as an additional twelve kilograms from previous shipments.2 The court also found that Suarez was a manager or supervisor of at least one other participant in the conspiracy, and enhanced his sentence on that basis. We affirmed the district court’s judgment on direct appeal. United States v. Suarez, 2000 WL 197927 (7th Cir. Feb. 8, 2000).

Approximately three years after Suarez was released from prison, the United States filed a complaint to revoke his naturalization under three separate theories, pursuant to 8 U.S.C. § 1451(a). The complaint alleged that Suarez (1) illegally procured his naturalization because he committed crimes that reflected adversely on his moral character, and thus lacked the good moral character required for naturalization; (2) illegally procured his naturalization because he provided false testimony to obtain citizenship when he denied that he had committed any such crimes; and (3) obtained his naturalization by willfully misrepresenting and/or concealing that he had committed these crimes. After discovery, the government moved for summary judgment on the first ground alleged, that Suarez had illegally procured his citizenship because, as a person lacking good moral character, he was ineligible for naturalization. Suarez opposed the motion, arguing that extenuating circumstances mitigated his unlawful acts and he could still be found to possess good moral character at the time of his naturalization. The district court granted judgment in favor of the United States, finding that Suarez was barred from establishing good moral character because he had committed serious crimes in the five years prior to his application, and that none of the circumstances he raised in any way mitigated his crimes. The court noted that, under Suarez’s argument, a person who was convicted before applying for naturalization would be barred from citizenship, but a person who committed the same crime and managed to evade justice until after naturalization would be eligible for citizenship. Rejecting that reasoning, the court revoked Suarez’s citizenship. Suarez appeals.

II.

Suarez contends that he cannot be found to have illegally procured his citizenship because the INS had the discretion and authority to grant his application for citizenship notwithstanding his unlawful acts. Moreover, he argues that there are genuine questions of material fact on the issue of whether extenuating circumstances mitigated his unlawful acts. Finally, he maintains that the court erred in relying on the length of his criminal sentence as evidence of the seriousness of his criminal acts. Our review of the district court’s grant of summary judgment in favor of the government is de novo. Norman–Nunnery v. Madison Area Technical Coll., 625 F.3d 422, 428 (7th Cir.2010); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009).

A.

The United States may sue to set aside the order admitting a person to citizenship and to cancel that person’s certificate of naturalization “on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation[.]” 8 U.S.C. § 1451(a). Only the first ground for revocation, illegal procurement, is at issue in this appeal. The government alleged that Suarez illegally procured his citizenship because he was statutorily ineligible for naturalization at the time he sought to become a naturalized citizen. See Fedorenko v. United States, 449 U.S. 490, 506 (1981) (failure to comply with any of the congressionally imposed pre-requisites of citizenship renders the certificate of citizenship illegally procured). See also United States v. Ciurinskas, 148 F.3d 729, 732 (7th Cir.1998) (if a certificate of naturalization is illegally procured, a court lacks discretion to refuse to revoke citizenship). He was statutorily ineligible, the government asserted, because he lacked good moral character, a prerequisite to citizenship. See 8 U.S.C. § 1427(a)(3) (“No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant ․ during all the periods referred to in this subsection has been and still is a person of good moral character.”). Although the statute directs the Attorney General to consider the five-year period prior to filing the application in determining good moral character, the Attorney General may also consider as a basis for the determination the applicant’s conduct and acts at any time prior to that period. 8 U.S.C. § 1427(d). Suarez lacked good moral character, under the government’s theory, because he had committed two serious controlled substance offenses shortly before he applied for naturalization. After he became a citizen, he was indicted, tried and convicted of possession with intent to distribute marijuana and conspiracy to possess with intent to distribute marijuana. Both charges stemmed from the shipment of nearly 200 pounds of marijuana only months before Suarez applied for citizenship.

Under section 1101(f), “[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was,” among other things, “a habitual drunkard,” gambler, aggravated felon, or Nazi persecutor. 8 U.S.C. § 1101(f). The list of those lacking good moral character includes persons who have been convicted of or who have admitted committing certain controlled substance offenses. 8 U.S.C. § 1101(f)(3) and (8). Suarez was not convicted until after his application was approved and he contends that this distinction places him in a category of persons that the INS may still admit as a discretionary matter. Because the INS could have exercised its discretion to admit him, he argues that he was not statutorily barred from admission and thus cannot be considered to have illegally procured his citizenship. We see at least three possible flaws in Suarez’s argument, based on our reading of the statutes and regulations.

1.

First, the express language of section 1101(f)(3) arguably includes in the list of persons who must be found to lack good moral character those who committed a qualifying crime during the statutory period and were later convicted for that crime:

For the purposes of this chapter—

No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was—

* * * *

(3) a member of one or more of the classes of persons, whether inadmissible or not, described in ․ subparagraphs (A) and (B) of section 1182(a)(2) of this title and subparagraph (C) thereof of such section (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;

8 U.S.C. § 1101(f)(3) (emphasis added). Section 1182(a)(2)(A)(i), in turn, lists classes of aliens ineligible for admission:

․ [A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—

* * * *

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i)(II).

Suarez is a member of the class of persons described in section 1182(a)(2)(A) because he was convicted of two controlled substance offenses. He falls within the purview of section 1101(f)(3) as a person statutorily barred from a finding of good moral character because “the offense described therein” was “committed during such period” when one’s good character must be established. In other words, under the language of section 1101(f)(3) that we highlighted above, if the offense was committed during the statutory period when an applicant must possess good moral character, and the applicant is convicted of that offense, the applicant is statutorily barred from a finding of good moral character no matter when the conviction occurs. The highlighted language addresses the very problem that concerned the district court. Applicants who commit crimes that statutorily bar them from a finding of good moral character who manage to evade detection and conviction until after they have been naturalized should not and do not possess an advantage over persons who are convicted before they apply for naturalization.

Both the government and Suarez assume that the crime and the conviction must both occur within the statutory period in order for an applicant to be barred from a finding of good moral character under section 1101(f)(3). We do not read such a limitation into the statute. Section 1182(a)(2)(A)(i) provides that the alien (or, in this case, applicant) “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of” a violation of the controlled substance laws is inadmissible. The quoted language indicates the level of proof necessary to demonstrate a violation of the controlled substance laws. That is, the person must have been convicted of the offense, or admitted committing it, or admitted the acts which make up the substance of the offense. See Fedorenko, 449 U.S. at 505 (the evidence against the naturalized citizen must be clear, unequivocal and convincing); Ciurinskas, 148 F.3d at 732 (same). There is no reason, either in the text or in the intent of these statutes, to assume that the proof must occur during the statutory period. To the contrary, the offense must occur during the statutory period under the language of the highlighted part of section 1101(f)(3) but the proof may come at any time. To read these statutes otherwise would lead to the absurd result that the district court feared: an applicant who evaded prosecution or refused during the statutory period to admit committing a crime would have an advantage over an applicant who was convicted or who was truthful during that time period. The district court, and apparently the government, believed that only the catch-all language of section 1101(f)(8) and the accompanying regulations could remedy this peculiar result. We would be inclined to find that resort to the catch-all is not necessary, but because the government relies on the catch-all, we will address it next.

2.

Assuming for the sake of argument that the language we have highlighted does not apply to Suarez, there is a second way in which he was statutorily barred from a finding of good moral character. The list in section 1101(f) is expressly not all-inclusive:

The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.

8 U.S.C. § 1101(f). Federal regulations set forth further guidance for applying section 1101(f). In accordance with section 1101(f), the INS “shall evaluate claims of good moral character on a case-by-case basis taking into account the elements enumerated in this section and the standards of the average citizen in the community of residence.” An applicant “shall be found to lack good moral character” if, during the statutory period, the applicant, among other things:

* * *

(iii) [v]iolated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana[.]

8 C.F.R. § 316.10(b)(2). Suarez does not dispute the district court’s finding or the government’s argument on appeal that section 316.10(b) is entitled to Chevron deference. See Chevron U.S.A ., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–44 (1984); United States v. Jean–Baptiste, 395 F.3d 1190, 1194 (11th Cir.2005) (Cudahy, J., sitting by designation). The regulation requires a finding that the applicant lacks good moral character if, during the statutory period, the applicant “violated any law” of the United States relating to a controlled substance. That Suarez “violated” the law during the statutory period is sufficient under the regulation to require a finding that he lacked good moral character. And we know that he violated the law during the statutory period because he was later convicted of a controlled substance offense involving considerably more than 30 grams of marijuana where the charged conduct occurred during the statutory period.3 Although Suarez contends that the “case-by-case” language of section 316.10 demonstrates that the INS could have exercised its discretion to find that he possessed good moral character even though he violated the controlled substance laws, he fails to note that the INS’s discretion is cabined by the mandatory language at the start of the provision: “An applicant shall be found to lack good moral character” if the applicant violated a qualifying controlled substance law during the statutory period. 8 C.F.R. § 316.10(b)(2) (emphasis added). A finding contrary to this mandatory language would be a per se abuse of discretion.

3.

We turn then to the third way in which Suarez can be found to have illegally procured citizenship even if neither the plain language of section 1101(f)(3) nor the mandatory language of section 316.10(b)(2) applies. A catch-all provision of 8 C.F.R. § 316.10(b)(3) specifies:

Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

* * *

(iii) [c]ommitted unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of § 316.10(b)(1) or (2).

8 C.F.R. § 316.10(b)(3). As with section 316.10(b)(2), a conviction during the statutory period is not necessary for a finding that an applicant lacks good moral character. It is enough that the offense was “committed” during that time. And as we noted above, this regulation is entitled to deference. See Chevron, 467 U.S. at 843–44. See also United States v. Dang, 488 F.3d 1135, 1140–41 (9th Cir.2007) (according Chevron deference to section 316.10(b)(3) and finding that unlawful acts during the statutory period would be considered even when the conviction came after naturalization). There are thus three different paths in the statutes and regulations that would lead to the same result: Suarez illegally procured his naturalization because he was statutorily ineligible as a person lacking good moral character.

That the regulations encompass some discretion on the part of the INS in determining whether an applicant possesses good moral character does not change the result. This conclusion is bolstered by a very similar case from one of our sister circuits. Suarez, as we noted, concedes that if he had been convicted before his application was approved, he would have been statutorily ineligible for naturalization. In the absence of a conviction during the statutory period, he maintains that, under section 316.10(b)(3), the Attorney General retained discretion to approve his application. Because of this discretion, he asserts that his citizenship cannot be characterized as “illegally procured.” Although this is an issue of first impression in the Seventh Circuit, the Eleventh Circuit has held that a conviction for a qualifying controlled substance offense after naturalization, for conduct that occurred in the statutory period before naturalization, precludes an applicant from establishing good moral character under 8 U.S.C. § 1101(f)(8), as elaborated in 8 C.F.R. § 316.10(b)(3)(iii). Jean–Baptiste, 395 F.3d at 1194.

Suarez contends that Jean–Baptiste was wrongly decided because the court had not been presented with the argument he makes here. In particular, Suarez contends that because the Attorney General retained discretion to approve his application, and because no statute or regulation alone categorically precluded his citizenship, he cannot be found to have “illegally” procured citizenship. According to Suarez, only an INS examining officer exercising his or her discretion could have made the determination. He cites the INS Field Adjudicator’s Manual, section 73.6(d)(3) in support of his claim that a denial of naturalization under 8 C.F.R. § 316.10(b)(3)(iii) is discretionary, and thus cannot be characterized as a statutory bar.

But we see no reason to depart from the well-reasoned decision of our sister circuit. As we noted above, we think it highly unlikely that Congress intended for applicants who, during the statutory period, commit crimes that would disqualify them from naturalization to nonetheless slide through the loophole Suarez asks us to create if they manage to evade detection and conviction until after they are naturalized. And we have held that a court lacks discretion to refuse to revoke citizenship where it was illegally procured. Ciurinskas, 148 F.3d at 732. Suarez was not eligible for naturalization when, during the five years prior to his application, he committed crimes establishing a lack of good moral character, whether or not he was convicted for those crimes before his naturalization was complete. Any discretion available in different circumstances cannot change the result here.

B.

Section 316.10(b)(3) begins with a possible exception to the general rule that an applicant “shall be found to lack good moral character” if the applicant committed certain criminal acts during the statutory period. 8 C.F.R. § 316.10(b)(3). Suarez contends that, under that provision, he may avoid a finding that he lacks good moral character if he “establishes extenuating circumstances.” Id. Suarez argues that he has raised genuine issues of material fact regarding extenuating circumstances that should have precluded summary judgment. In particular, he cites as extenuating circumstances that (1) the convictions at issue here were his first and only criminal convictions; (2) he played a minimal role in the offenses for which he was convicted; and (3) he received no compensation for the drug transactions at issue.

Extenuating circumstances in the context of a determination of good moral character “must pertain to the reasons showing lack of good character, including acts negating good character, not to the consequences of these matters.” Jean–Baptiste, 395 F.3d at 1195 (collecting cases). Extenuating circumstances are those which render a crime less reprehensible than it otherwise would be, or “tend to palliate or lessen its guilt.” Black’s Law Dictionary, Sixth Edition (1990). That these convictions allegedly arose from Suarez’s first crimes does nothing to mitigate their seriousness. Recall that Suarez was convicted of possession with intent to distribute and conspiracy to possess with intent to distribute nearly 200 pounds of marijuana. Setting aside the dubious proposition that any drug dealer begins his career with a 200–pound transaction, if this truly was his first offense (as opposed to his first conviction), he certainly jumped into a life of crime with both feet with a transaction of this size. A first crime of this magnitude is more damning rather than less so. Nothing about the magnitude of this first offense incident tends to minimize the seriousness of the crime.

Although Suarez would now have us believe that his role in the offense was minimal, we need only refer to our opinion on direct appeal to determine that this is simply not true. The district court adjusted Suarez’s sentence upward after finding that he served as a manager or supervisor in the conspiracy. Suarez, 2000 WL 197927, at *3. We affirmed that enhancement, concluding that Suarez not only recruited two other conspirators but also directed their activities. Moreover, Suarez served as an indispensable middleman who found a driver willing to travel across state lines to transport a large quantity of marijuana. Nothing about Suarez’s role in the offense may be fairly described as minimal, and he may not now re-litigate issues decided in his criminal case. See Jean–Baptiste, 395 F.3d at 1194–95 (collateral estoppel bars a defendant who is convicted in a criminal trial from contesting the conviction in a subsequent civil action with respect to issues necessarily decided in the criminal trial). See also In re Grand Jury Proceedings of Special April 2002 Grand Jury, 347 F.3d 197, 201–02 (7th Cir.2003) (setting forth the elements of collateral estoppel).

Finally, that he made no money for his role in the offense does nothing to mitigate his responsibility for the crime. First, the statutes themselves are agnostic on the question of money changing hands. The harm that the statutes at issue penalize is the distribution of controlled substances, not the sale. And the social harm caused by persons who conspire to distribute controlled substances is not lessened when the dealer makes little or no money on the transaction.

In sum, Suarez has failed to raise a genuine issue of material fact regarding extenuating circumstances. Although we are inclined to find that the plain language of section 1101(f)(3) bars a finding of good moral character for persons who commit qualifying crimes during the statutory period but who are not convicted of those offenses until after naturalization, we will not definitively decide that question here in the absence of the government’s urging. Instead we conclude that the district court correctly granted summary judgment in favor of the government because Suarez could not demonstrate the good moral character required for naturalization under the catch-all provision of section 1101(f)(8) and the accompanying regulations. Suarez’s remaining arguments are without merit.

Affirmed.

FOOTNOTES

1.  Congress transferred the functions of the former INS to the Department of Homeland Security (“DHS”) on March 1, 2003. The transfer does not affect any legal issue in the case, and the DHS did not exist during any of the underlying administrative proceedings. We will use the terminology in place at the time that the agency considered and approved Suarez’s application for naturalization. See Diallo v. Ashcroft, 381 F.3d 687, 690 n. 1 (7th Cir.2004).

2.  The eighty-nine kilograms seized from Suarez’s co-defendants is equal to approximately 196 pounds.

3.  Thirty grams amounts to slightly more than an ounce. Suarez was convicted of possession and conspiracy to possess nearly 200 pounds of marijuana.

ROVNER, Circuit Judge.

Holding: The policy used by the Board of Immigration Appeals to determine whether a resident alien is eligible to ask the Attorney General for relief from deportation under a provision of the immigration laws that has been repealed is “arbitrary and capricious” under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

Judgment: Reversed and remanded, 9-0, in an opinion by Justice Kagan on December 12, 2011. Judulang v. Holder, No. 10-694: 565 U.S.____ 12/12/2011:

In Judulang v. Holder, the United States sought to remove from the United States a lawful permanent resident who has lived here since 1974, because he was convicted of voluntary manslaughter in 1989.  Former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), provides for a “waiver of excludability,” which allows a noncitizen to enter the country despite a criminal conviction.  Years ago, the courts – the leading case is Francis v. INS (2d Cir. 1976) – required Section 212(c) relief to be available to lawful permanent residents facing deportation as well as those seeking admission into the country.

In a major reform of the Immigration & Nationality Act in 1996, Congress repealed Section 212(c).  The Supreme Court later held that that relief remains available to lawful permanent residents who would have been eligible for it at the time of their convictions.  With a 1989 conviction, Judulang was eligible, and applied, for Section 212(c) relief.  The immigration court denied the waiver and ordered Judulang removed from the United States.  The Board of Immigration Appeals (BIA) affirmed and the Ninth Circuit agreed.  This BIA ruling would have meant that lawful permanent residents in circumstances like Judulang’s who have remained in the United States are ineligible for relief from removal, but similarly situated aliens who traveled outside the country could be eligible for Section 212(c) relief.

In his briefs on the merits, Judulang emphasized that, before the BIA’s 2005 rulings in Matter of Blake and Matter of Brieva-Perez, a lawful permanent resident subject to deportation for any criminal conviction, including for an “aggravated felony,” could apply for Section 212(c) relief.  The seminal decision in Francis v. INS laid the groundwork for this practice and held that allowing relief for a criminal conviction for exclusion (i.e., when seeking admission into the country) under Section 212(c) but not for deportation (i.e., when resisting removal from the United States) could not survive rationality review under the Equal Protection Clause.  Judulang contended that the BIA’s change in practice in 2005 is contrary to years of administrative practice and represents an improper retroactive change in the law.  Contrary to Francis v. INS, it makes eligibility for Section 212(c) relief turn on arcane, irrational differences in the exclusion and deportation provisions of the Immigration and Nationality Act that cannot survive minimal constitutional scrutiny.

The petitioner in the case, Joel Judulang, was born in the Philippines but came to the United States in 1974, when he was eight.  In 2005, the Department of Homeland Security began efforts to deport him because in the late 1980s he had pleaded guilty to voluntary manslaughter after participating in a fight in which another individual shot and killed a third person.  The government charged Judulang with having committed an “aggravated felony” involving a “crime of violence” – which would be grounds for deportation.

In its brief, the United States first invoked the ordinary deference accorded to administrative agencies and asserted that the Board reasonably requires that Section 212(c) relief be available to a noncitizen facing deportation only when there is a similarity between the grounds for deportation and grounds of inadmissibility.  The United States also denied that the Board’s 2005 rulings represent a change in the law or that the Board’s interpretation raises equal protection concerns.

The federal government sought to deport Judulang on the ground that he had committed an “aggravated felony” involving a “crime of violence.”  And the government ruled that he was not eligible to apply to stay in the country because a “crime of violence” does not have any counterpart in Section 212(c).  The government took that position even though the crime that Judulang had committed – voluntary manslaughter – could also qualify as a “crime involving moral turpitude,” which is a ground for eligibility under Section 212(c).

Judulang argued that this “comparable ground” rule was “arbitrary and capricious,” which is the standard that governs many challenges to actions by federal agencies.  Agencies get a lot of leeway:  courts will allow an agency’s action to stand as long as the decision making process that led to the action was reasonable.  On Monday, the Court – in an opinion by Justice Kagan – unanimously agreed with Judulang that the government’s policy could not meet this standard.

“Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 1996, these two kinds of action occurred in different procedural settings; since then, the Government has employed a unified “removal proceeding” for exclusions and deportations alike. But the immigration laws have always provided separate lists of substantive grounds for the two actions. One list specifies what crimes render an alien excludable, see 8 U. S. C. §1182(a), while another–sometimes overlapping and sometimes divergent–list specifies what crimes render an alien deportable, see §1227(a).

Until repealed in 1996, §212(c) of the Immigration and Nationality Act permitted the Attorney General to grant discretionary relief to an excludable alien, if the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country and if the alien was not excludable on one of two specified grounds. By its terms, §212(c) applied only in exclusion proceedings, but the Board of Immigration Appeals (BIA) extended it decades ago to deportation proceedings as well. Although Congress substituted a narrower discretionary remedy for §212(c) in 1996, see §1229b, §212(c)’s broader relief remains available to an alien whose removal is based on a guilty plea entered before §212(c)’s repeal, INS v. St. Cyr, 533 U. S. 289, 326.

In deciding whether to exclude such an alien, the BIA first checks the statutory ground identified by the Department of Homeland Security (DHS) as the basis for exclusion. Unless that ground is one of the two falling outside §212(c)’s scope, the alien is eligible for discretionary relief. The BIA then determines whether to grant relief based on such factors as the seriousness of the offense.

This case concerns the BIA’s method for applying §212(c) in the deportation context. The BIA’s approach, known as the “comparable-grounds” rule, evaluates whether the charged deportation ground has a close analogue in the statute’s list of exclusion grounds. If the deportation ground consists of a set of crimes “substantially equivalent” to the set making up an exclusion ground, the alien can seek §212(c) relief. But if the deportation ground covers different or more or fewer offenses than any exclusion ground, the alien is ineligible for relief, even if the alien’s particular offense falls within an exclusion ground.

Petitioner Judulang, who has lived continuously in the United States as a lawful permanent resident since 1974, pleaded guilty to voluntary manslaughter in 1988. After he pleaded guilty to another crime in 2005, DHS commenced a deportation action, charging him with having committed an “aggravated felony” involving “a crime of violence” based on his manslaughter conviction. The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed, finding Judulang ineligible for §212(c) relief because the “crime of violence” deportation ground is not comparable to any exclusion ground. The Ninth Circuit, having previously upheld the BIA’s comparable-grounds rule, denied Judulang’s petition for review.

Held: The BIA’s policy for applying §212(c) in deportation cases is “arbitrary and capricious” under the Administrative Procedure Act, 5 U. S. C. §706(2)(A). Pp. 9-21.

(a) While agencies have expertise and experience in administering their statutes that no court may properly ignore, courts retain a narrow but important role in ensuring that agencies have engaged in reasoned decisionmaking. Thus, in reviewing the BIA’s action, this Court must assess, among other matters, “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. That task involves examining the reasons for agency decisions, or the absence of such reasons.

The comparable-grounds approach cannot survive scrutiny under this standard. By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories–a matter irrelevant to the alien’s fitness to reside in this country–the BIA has failed to exercise its discretion in a reasoned manner. Pp. 9-10.

(b) Even if the BIA has legitimate reasons for limiting §212(c)’s scope in deportation cases, it must do so in some rational way. In other words, the BIA must use an approach that is tied to the purposes of the immigration laws or the appropriate operation of the immigration system. The comparable-grounds rule has no connection to these factors. Instead, it makes §212(c) eligibility turn on an irrelevant comparison between statutory provisions. Whether the set of offenses in a particular deportation ground lines up with the set in an exclusion ground has nothing to do with whether a deportable alien whose prior conviction falls within both grounds merits the ability to stay in this country. Here, Judulang was found ineligible for §212(c) relief because the “crime of violence” deportation ground includes a few offenses–simple assault, minor burglary, and unauthorized use of a vehicle–not found in the similar moral turpitude exclusion ground. But the inclusion of simple assaults and minor burglaries in the deportation ground is irrelevant to the merits of Judulang’s case.

The BIA’s approach has other odd features. In applying the comparable-grounds rule, the BIA has denied relief to aliens whose deportation ground fits entirely within a much broader exclusion ground. Yet providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group. In addition, the outcome of the comparable-grounds analysis may itself rest on an arbitrary decision. An alien’s prior conviction could fall within a number of deportation grounds, only one of which corresponds to an exclusion ground. In such cases, an alien’s eligibility for relief would hinge on an individual official’s decision as to which deportation ground to charge. An alien appearing before one official may suffer deportation, while an identically situated alien appearing before another may gain the right to stay in this country.

In short, the comparable-grounds approach does not rest on any factors relevant to whether an alien should be deported. Instead, it turns deportation decisions into a “sport of chance.” Rosenberg v. Fleuti, 374 U. S. 449, 455. That is what the APA’s “arbitrary and capricious” standard is designed to prevent. Pp. 10-15.

(c) The Government’s arguments in defense of the comparable-grounds rule are not persuasive. First, §212(c)’s text does not support the rule. That section cannot provide a textual anchor for any method of providing discretionary relief in deportation cases because it addresses only exclusion. Second, the history of the comparable-grounds rule does not work in the Government’s favor. The BIA repeatedly vacillated in its method for applying §212(c) to deportable aliens, settling on the current rule only in 2005. Third, the Government’s claim that the comparable-grounds rule saves time and money falls short. Cost may be an important factor for agencies to consider in many contexts, but cheapness alone cannot save an arbitrary agency policy. In any event, it is unclear that the comparable-grounds rule saves money when compared with alternative approaches. Pp. 16-21. 249 Fed. Appx. 499, reversed and remanded.

Kagan, J., delivered the opinion for a unanimous Court.

Opinion of the Court  565 U. S. ____ (2011) JUDULANG v. HOLDER NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES No. 10-694

JOEL JUDULANG, PETITIONER v. ERIC H. HOLDER,
Jr., ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the ninth circuit

[December 12, 2011]

Justice Kagan delivered the opinion of the Court.

This case concerns the Board of Immigration Appeals’ (BIA or Board) policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious.

The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it.

I

A

Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 1996, these two kinds of action occurred in different procedural settings, with an alien seeking entry (whether for the first time or upon return from a trip abroad) placed in an “exclusion proceeding” and an alien already here channeled to a “deportation proceeding.” See Landon v. Plasencia, 459 U. S. 21, 25-26 (1982) (comparing the two). Since that time, the Government has used a unified procedure, known as a “removal proceeding,” for exclusions and deportations alike. See 8 U. S. C. §§1229, 1229a. But the statutory bases for excluding and deporting aliens have always varied. Now, as before, the immigration laws provide two separate lists of substantive grounds, principally involving criminal offenses, for these two actions. One list specifies what kinds of crime render an alien excludable (or in the term the statute now uses, “inadmissible”), see §1182(a) (2006 ed., Supp. IV), while another–sometimes overlapping and sometimes divergent–list specifies what kinds of crime render an alien deportable from the country, see §1227(a).

An additional, historic difference between exclusion and deportation cases involved the ability of the Attorney General to grant an alien discretionary relief. Until repealed in 1996, §212(c) of the Immigration and Nationality Act, 66 Stat. 187, 8 U. S. C. §1182(c) (1994 ed.), authorized the Attorney General to admit certain excludable aliens. See also §136(p) (1926 ed.) (predecessor provision to §212(c)). The Attorney General could order this relief when the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country, unless the alien was excludable on one of two specified grounds. See §1182(c) (1994 ed.).1 But by its terms, §212(c) did not apply when an alien was being deported.

This discrepancy threatened to produce an odd result in a case called Matter of L-, 1 I. & N. Dec. 1 (1940), leading to the first-ever grant of discretionary relief in a deportation case. L- was a permanent resident of the United States who had been convicted of larceny. Although L-’s crime made him inadmissible, he traveled abroad and then returned to the United States without any immigration official’s preventing his entry. A few months later, the Government caught up with L- and initiated a deportation action based on his larceny conviction. Had the Government apprehended L- at the border a short while earlier, he would have been placed in an exclusion proceeding where he could have applied for discretionary relief. But because L- was instead in a deportation proceeding, no such relief was available. Responding to this apparent anomaly, Attorney General Robert Jackson (on referral of the case from the BIA) determined that L- could receive a waiver: L-, Jackson said, “should be permitted to make the same appeal to discretion that he could have made if denied admission” when returning from his recent trip. Id., at 6. In accord with this decision, the BIA adopted a policy of allowing aliens in deportation proceedings to apply for discretionary relief under §212(c) whenever they had left and reentered the country after becoming deportable. See Matter of S-, 6 I. & N. Dec. 392, 394-396 (1954).

But this approach created another peculiar asymmetry: Deportable aliens who had traveled abroad and returned could receive §212(c) relief, while those who had never left could not. In Francis v. INS, 532 F. 2d 268 (1976), the Court of Appeals for the Second Circuit concluded that this disparity violated equal protection. Id., at 273 (“[A]n alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time”). The BIA acquiesced in the Second Circuit’s decision, see Matter of Silva, 16 I. & N. Dec. 26 (1976), thus applying §212(c) in deportation proceedings regardless of an alien’s travel history.

All this might have become academic when Congress repealed §212(c) in 1996 and substituted a new discretionary remedy, known as “cancellation of removal,” which is available in a narrow range of circumstances to excludable and deportable aliens alike. See 8 U. S. C. §1229b. But in INS v. St. Cyr, 533 U. S. 289, 326 (2001), this Court concluded that the broader relief afforded by §212(c) must remain available, on the same terms as before, to an alien whose removal is based on a guilty plea entered before §212(c)’s repeal. We reasoned that aliens had agreed to those pleas with the possibility of discretionary relief in mind and that eliminating this prospect would ill comport with ” ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ” Id., at 323 (quoting Landgraf v. USI Film Products, 511 U. S. 244, 270 (1994)). Accordingly, §212(c) has had an afterlife for resident aliens with old criminal convictions.

When the BIA is deciding whether to exclude such analien, applying §212(c) is an easy matter. The Boardfirst checks the statutory ground that the Department of Homeland Security (DHS) has identified as the basis for exclusion; the Board may note, for example, that DHS has charged the alien with previously committing a “crime involving moral turpitude,” see 8 U. S. C. §1182(a)(2)(A)(i)(I). Unless the charged ground is one of the pair falling outside §212(c)’s scope, see n. 1, supra, the alien is eligible for discretionary relief. The Board then determines whether to grant that relief based on such factors as “the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien’s residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces.” St. Cyr, 533 U. S., at 296, n. 5.

By contrast, when the BIA is deciding whether to deport an alien, applying §212(c) becomes a tricky business. Recall that §212(c) applies on its face only to exclusion decisions. So the question arises: How is the BIA to determine when an alien should receive §212(c) relief in the deportation context?

One approach that the BIA formerly used considered how the alien would fare in an exclusion proceeding. To perform this analysis, the Board would first determine whether the criminal conviction making the alien deportable fell within a statutory ground for exclusion. Almost all convictions did so, largely because the “crime involving moral turpitude” ground encompasses so many offenses.2 Assuming that threshold inquiry were met, the Board would mimic its approach in exclusion cases–first making sure the statutory ground at issue was not excepted from §212(c) and then conducting the multi-factor analysis. See Matter of Tanori, 15 I. & N. Dec. 566, 567-568 (1976); In re Manzueta, No. A93 022 672, 2003 WL 23269892 (BIA, Dec. 1, 2003).

A second approach is the one challenged here; definitively adopted in 2005 (after decades of occasional use), it often is called the “comparable-grounds” rule. See, e.g., De la Rosa v. U. S. Attorney General, 579 F. 3d 1327, 1332 (CA11 2009). That approach evaluates whether the ground for deportation charged in a case has a close analogue in the statute’s list of exclusion grounds. See In re Blake, 23 I. & N. Dec. 722, 728 (2005); In re Brieva-Perez, 23 I. & N. Dec. 766, 772-773 (2005).3 If the deportation ground consists of a set of crimes “substantially equivalent” to the set of offenses making up an exclusion ground, then the alien can seek §212(c) relief. Blake, 23 I. & N. Dec., at 728. But if the deportation ground charged covers significantly different or more or fewer offenses than any exclusion ground, the alien is not eligible for a waiver. Such a divergence makes §212(c) inapplicable even if the particular offense committed by the alien falls within an exclusion ground.

Two contrasting examples from the BIA’s cases may help to illustrate this approach. Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he has commitmted an “aggravated felony” involving “illicit trafficking
in a controlled substance.” 8 U. S. C. §§1101(a)(43)(B), 1227(a)(2)(A)(iii). Under the comparable-grounds rule, the immigration judge would look to see if that deportation ground covers substantially the same offenses as an exclusion ground. And according to the BIA in Matter of Meza, 20 I. & N. Dec. 257 (1991), the judge would find an adequate match–the exclusion ground applicable to aliens who have committed offenses “relating to a controlled substance,” 8 U. S. C. §§1182(a)(2)(A)(i)(II) and (a)(2)(C).

Now consider an alien convicted of first-degree sexual abuse of a child, whom DHS wishes to deport on the ground that he has committed an “aggravated felony” involving “sexual abuse of a minor.” §§1101(a)(43)(A), 1227(a)(2)(A)(iii). May this alien seek §212(c) relief ? According to the BIA, he may not do so–not because his crime is too serious (that is irrelevant to the analysis), but instead because no statutory ground of exclusion covers substantially the same offenses. To be sure, the alien’s own offense is a “crime involving moral turpitude,” 8 U. S. C. §1182(a)(2)(A)(i)(I), and so fits within an exclusion ground. Indeed, that will be true of most or all offenses included in this deportation category. See supra, at 5. But on the BIA’s view, the “moral turpitude” exclusion ground “addresses a distinctly different and much broader category of offenses than the aggravated felony sexual abuse of a minor charge.” Blake, 23 I. & N. Dec., at 728. And the much greater sweep of the exclusion ground prevents the alien from seeking discretionary relief from deportation.4

Those mathematically inclined might think of the comparable-grounds approach as employing Venn diagrams. Within one circle are all the criminal offenses commposing the particular ground of deportation charged. Within other circles are the offenses composing the various exclusion grounds. When, but only when, the “deportation circle” sufficiently corresponds to one of the “exclusion circles” may an alien apply for §212(c) relief.

B

Petitioner Joel Judulang is a native of the Philippines who entered the United States in 1974 at the age of eight. Since that time, he has lived continuously in this country as a lawful permanent resident. In 1988, Judulang took part in a fight in which another person shot and killed someone. Judulang was charged as an accessory and eventually pleaded guilty to voluntary manslaughter. He received a 6-year suspended sentence and was released on probation immediately after his plea.

In 2005, after Judulang pleaded guilty to another criminal offense (this one involving theft), DHS commenced an action to deport him. DHS charged Judulang with having committed an “aggravated felony” involving “a crime of violence,” based on his old manslaughter conviction. 8 U. S. C. §§1101(a)(43)(F), 1227(a)(2)(A)(iii).5 The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed. As part of its decision, the BIA considered whether Judulang could apply for §212(c) relief. It held that he could not do so because the “crime of violence” deportation ground is not comparable to any exclusion ground, including the one for crimes involving moral turpitude. App. to Pet. for Cert. 8a. The Court of Appeals for the Ninth Circuit denied Judulang’s petition for review in reliance on circuit precedent upholding the BIA’s mcomparable-grounds approach. Judulang v. Gonzales, 249 Fed. Appx. 499, 502 (2007) (citing Abebe v. Gonzales, 493 F. 3d 1092 (2007)).

We granted certiorari, 563 U. S. ___ (2011), to resolve a circuit split on the approach’s validity.6 We now reverse.

II

This case requires us to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A).7 The scope of our review under this standard is “narrow”; as we have often recognized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking. When reviewing an agency action, we must assess, among other matters, ” ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That task involves examining the reasons for agency decisions–or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting “the requirement that an agency provide reasoned explanation for its action”).

The BIA has flunked that test here. By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories–a matter irrelevant to the alien’s fitness to reside in this country–the BIA has failed to exercise its discretion in a reasoned manner.

A

The parties here spend much time disputing whether the BIA must make discretionary relief available to deportable and excludable aliens on identical terms. As this case illustrates, the comparable-grounds approach does not do so. If Judulang were seeking entry to this country, he would be eligible for §212(c) relief; voluntary manslaughter is “a crime involving moral turpitude,” and so his conviction falls within an exclusion ground. But Judulang cannot apply for relief from deportation because the “crime of violence” ground charged in his case does not match any exclusion ground (including the one for “turpitudinous” crimes). See infra, at 13. Judulang argues that this disparity is impermissible because any disparity between excludable and deportable aliens is impermissible: If an alien may seek §212(c) relief in an exclusion case, he also must be able to seek such relief in a deportation case. See Brief for Petitioner 47-51.8 But the Government notes that the immigration laws have always drawn distinctions between exclusion and deportation. See Brief for Respondent 51. And the Government presses a policy reason for making §212(c) relief more readily available in exclusion cases. Doing so, it argues, will provide an incentive for some resident aliens (i.e., those eligible for a waiver from exclusion, but not deportation) to report themselves to immigration officials, by applying for advance permission to exit and reenter the country. In contrast, applying §212(c) uniformly might lead all aliens to “try to evade immigration officials for as long as possible,” because they could in any event “seek [discretionary] relief if caught.” Id., at 52.

In the end, we think this dispute beside the point, and we do not resolve it. The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin–heads an alien may apply for relief, tails he may not–we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, ” ‘relevant factors,’ ” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system. A method for disfavoring deportable aliens that bears no relation to these matters–that neither focuses on nor relates to an alien’s fitness to remain in the country–is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases.

The problem with the comparable-grounds policy is that it does not impose such a reasonable limitation. Rather than considering factors that might be thought germane to the deportation decision, that policy hinges §212(c) eligibility on an irrelevant comparison between statutory provisions. Recall that the BIA asks whether the set of offenses in a particular deportation ground lines up with the set in an exclusion ground. But so what if it does? Does an alien charged with a particular deportation ground become more worthy of relief because that ground happens to match up with another? Or less worthy of relief because the ground does not? The comparison in no way changes the alien’s prior offense or his other attributes and circumstances. So it is difficult to see why that comparison should matter. Each of these statutory grounds contains a slew of offenses. Whether each contains the same slew has nothing to do with whether a deportable alien whose prior conviction falls within both grounds merits the ability to seek a waiver.9

This case well illustrates the point. In commencing Judulang’s deportation proceeding, the Government charged him with an “aggravated felony” involving a “crime of violence” based on his prior manslaughter conviction. See App. to Pet. for Cert. 11a-12a. That made him ineligible for §212(c) relief because the “crime of violence” deportation ground does not sufficiently overlap with the most similar exclusion ground, for “crime[s] involving moral turpitude.” The problem, according to the BIA, is that the “crime of violence” ground includes a few offenses–simple assault, minor burglary, and unauthorized use of a vehicle–that the “moral turpitude” ground does not. See Brieva-Perez, 23 I. & N. Dec., at 772-773; Tr. of Oral Arg. 28-29, 40-41. But this statutory difference in no way relates to Judulang–or to most other aliens charged with committing a “crime of violence.” Perhaps aliens like Judulang should be eligible for §212(c) relief, or perhaps they should not. But that determination is not sensibly made by establishing that simple assaults and minor burglaries fall outside a ground for exclusion. That fact is as extraneous to the merits of the case as a coin flip would be. It makes Judulang no less deserving of the opportunity to seek discretionary relief–just as its converse (the inclusion of simple assaults and burglaries in the “moral turpitude” exclusion ground) would make him no more so.

Or consider a different headscratching oddity of the comparable-grounds approach–that it may deny §212(c) eligibility to aliens whose deportation ground fits entirely inside an exclusion ground. The BIA’s Blake decision, noted earlier, provides an example. See supra, at 6-7. The deportation ground charged was “aggravated felony” involving “sexual abuse of a minor”; the closest exclusion ground was, once again, a “crime [of] moral turpitude.” 23 I. & N. Dec., at 727. Here, the BIA’s problem was not that the deportation ground covered too many offenses; all or virtually all the crimes within that ground also are crimes of moral turpitude. Rather, the BIA objected that the deportation ground covered too few crimes–or put oppositely, that “the moral turpitude ground of exclusion addresses a . . . much broader category of offenses.” Id., at 728. But providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group.10 (The better argument would surely be the reverse–that giving relief in the one context supports doing so in the other.) Again, we do not say today that the BIA must give all deportable aliens meeting §212(c)’s requirements the chance to apply for a waiver. See supra, at 11-12. The point is instead that the BIA cannot make that opportunity turn on the meaningless matching of statutory grounds.

And underneath this layer of arbitrariness lies yet another, because the outcome of the Board’s comparable-grounds analysis itself may rest on the happenstance of an immigration official’s charging decision. This problem arises because an alien’s prior conviction may fall within a number of deportation grounds, only one of which corresponds to an exclusion ground. Consider, for example, an alien who entered the country in 1984 and commit- ted voluntary manslaughter in 1988. That person could be charged (as Judulang was) with an “aggravated felony” involving a “crime of violence,” see 8 U. S. C. §§1101(a)(43)(F), 1227(a)(2)(A)(iii). If so, the alien could not seek a waiver because of the absence of a comparable exclusion ground. But the alien also could be charged with “a crime involving moral turpitude committed within five years . . . after the date of admission,” see §1227(a)(2)(A)(i)(I). And if that were the deportation charge, the alien could apply for relief, because the ground corresponds to the “moral turpitude” ground used in exclusion cases. See In re Salmon, 16 I. & N. Dec. 734 (1978). So everything hangs on the charge. And the Government has provided no reason to think that immigration officials must adhere to any set scheme in deciding what charges to bring, or that those officials are exercising their charging discretion with §212(c) in mind. See Tr. of Oral Arg. 34-36. So at base everything hangs on the fortuity of an individual official’s decision. An alien appearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country.

In a foundational deportation case, this Court recognized the high stakes for an alien who has long resided in this country, and reversed an agency decision that would “make his right to remain here dependent on circumstances so fortuitous and capricious.” Delgadillo v. Carmichael, 332 U. S. 388, 391 (1947). We think the policy before us similarly flawed. The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distinguishes among aliens–decides who should be eligible for discretionary relief and who should not–solely by comparing the metes and bounds of diverse statutory categories into which an alien falls. The resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws. Judge Learned Hand wrote in another early immigration case that deportation decisions cannot be made a “sport of chance.” See Di Pasquale v. Karnuth, 158 F. 2d 878, 879 (CA2 1947) (quoted in Rosenberg v. Fleuti, 374 U. S. 449, 455 (1963)). That is what the comparable-grounds rule brings about, and that is what the APA’s “arbitrary and capricious” standard is designed to thwart.

B

The Government makes three arguments in defense of the comparable-grounds rule–the first based on statutory text, the next on history, the last on cost. We find none of them persuasive.

1

The Government initially contends that the comparable-grounds approach is more faithful to “the statute’s language,” Brief for Respondent 21–or otherwise said, that “lifting that limit ‘would take immigration practice even further from the statutory text,’ ” id., at 22 (quoting Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 287 (1990)). In the Government’s view, §212(c) is “phrased in terms of waiving statutorily specified grounds of exclusion”; that phrasing, says the Government, counsels a comparative analysis of grounds when applying §212(c) in the deportation context. Brief for Respondent 21; see Tr. of Oral Arg. 34 (“[T]he reason [the comparable-grounds approach] makes sense is because the statute only provides for relief from grounds of . . . exclusion”).

The first difficulty with this argument is that it is based on an inaccurate description of the statute. Section 212(c) instructs that certain resident aliens “may be admitted in the discretion of the Attorney General” notwithstanding any of “the provisions of subsection (a) . . . (other than paragraphs (3) and (9)(C)).” 8 U. S. C. §1182(c) (1994 ed.). Subsection (a) contains the full list of exclusion grounds; paragraphs (3) and (9)(C) (which deal with national security and international child abduction) are two among these. What §212(c) actually says, then, is that the Attorney General may admit any excludable alien, except if
the alien is charged with two specified grounds. And that means that once the Attorney General determines that the alien is not being excluded for those two reasons, the ground of exclusion no longer matters. At that point, the alien is eligible for relief, and the thing the Attorney General waives is not a particular exclusion ground, but the simple denial of entry. So the premise of the Government’s argument is wrong. And if the premise, so too the conclusion–that is, because §212(c)’s text is not “phrased in terms of waiving statutorily specified grounds of exclusion,” Brief for Respondent 21, it cannot counsel a search for corresponding grounds of deportation.

More fundamentally, the comparable-grounds approach would not follow from §212(c) even were the Government right about the section’s phrasing. That is because §212(c) simply has nothing to do with deportation: The provision was not meant to interact with the statutory grounds for deportation, any more than those grounds were designed to interact with the provision. Rather, §212(c) refers solely to exclusion decisions; its extension to deportation cases arose from the agency’s extra-textual view that some similar relief should be available in that context to avoid unreasonable distinctions. Cf., e.g., Matter of L-, 1 I. & N. Dec., at 5; see also supra, at 3-4.11 Accordingly, the text of §212(c), whether or not phrased in terms of “waiving grounds of exclusion,” cannot support the BIA’s use of the comparable-grounds rule–or, for that matter, any other method for extending discretionary relief to deportation cases. We well understand the difficulties of operating in such a text-free zone; indeed, we appreciate the Government’s yearning for a textual anchor. But §212(c), no matter how many times read or parsed, does not provide one.

2

In disputing Judulang’s contentions, the Government also emphasizes the comparable-grounds rule’s vintage. See Brief for Respondent 22-23, 30-43. As an initial matter, we think this a slender reed to support a significant government policy. Arbitrary agency action becomes no less so by simple dint of repetition. (To use a prior analogy, flipping coins to determine §212(c) eligibility would remain as arbitrary on the thousandth try as on the first.) And longstanding capriciousness receives no special exemption from the APA. In any event, we cannot detect the consistency that the BIA claims has marked its approach to this issue. To the contrary, the BIA has repeatedly vacillated in its method for applying §212(c) to deportable aliens.

Prior to 1984, the BIA endorsed a variety of approaches. In Matter of T-, 5 I. & N. Dec. 389, 390 (1953), for example, the BIA held that an alien was not eligible for §212(c) relief because her “ground of deportation” did not appear in the exclusion statute. That decision anticipated the comparable-grounds approach that the BIA today uses. But in Tanori, the BIA pronounced that a deportable alien could apply for a waiver because “the same facts”–in that case, a marijuana conviction–would have allowed him to seek §212(c) relief in an exclusion proceeding. 15 I. & N. Dec., at 568. That approach is more nearly similar to the one Judulang urges here. And then, in Matter of Granados, 16 I. & N. Dec. 726, 728 (1979), the BIA tried to have it both ways: It denied §212(c) eligibility both because the deportation ground charged did not correspond to, and because the alien’s prior conviction did not fall within, a waivable ground of exclusion. In short, the BIA’s cases were all over the map.

The Government insists that the BIA imposed order in Matter of Wadud, 19 I. & N. Dec. 182, 185-186 (1984), when it held that a deportable alien could not seek §212(c) relief unless the deportation ground charged had an “analogous ground of inadmissibility.” See Brief for Respondent 40-41. But the BIA’s settlement, if any, was fleeting. Just seven years later, the BIA adopted a new policy entirely, extending §212(c) eligibility to “aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted from section 212(c).” Hernandez-Casillas, 20 I. & N. Dec., at 266. That new rule turned the comparable-grounds approach inside-out, allowing aliens to seek §212(c) relief in deportation cases except when the ground charged corresponded to an exclusion ground that could not be waived. To be sure, the Attorney General (on referral of the case from the BIA), disavowed this position in favor of the more standard version of the comparable-grounds rule. Id., at 287. But even while doing so, the Attorney General stated that “an alien subject to deportation must have the same opportunity to seek discretionary relief as an alien . . . subject to exclusion.” Ibid. That assertion is exactly the one Judulang makes in this case; it is consonant not with the comparable-grounds rule the BIA here defends, but instead with an inquiry into whether an alien’s prior conviction falls within an exclusion ground.

Given these mixed signals, it is perhaps not surprising that the BIA continued to alternate between approaches in the years that followed. Immediately after the Attorney General’s opinion in Hernandez-Casillas, the BIA endorsed the comparable-grounds approach on several occasions. See Meza, 20 I. & N. Dec., at 259; Matter of Montenegro, 20 I. & N. Dec. 603, 604-605 (1992); Matter of Gabryelsky, 20 I. & N. Dec. 750, 753-754 (1993); In re Esposito, 21 I. & N. Dec. 1, 6-7 (1995); In re Jimenez-Santillano, 21 I. & N. Dec. 567, 571-572 (1996). But just a few years later, the BIA issued a series of unpublished opinions that asked only whether a deportable alien’s prior conviction fell within an exclusion ground. See, e.g., In re Manzueta, No. A93 022 672, 2003 WL 23269892 (Dec. 1, 2003). Not until the BIA’s decisions in Blake and Brieva-Perez did the pendulum stop swinging. That history hardly supports the Government’s view of a consistent agency practice.12

3

The Government finally argues that the comparable-grounds rule saves time and money. The Government claims that comparing deportation grounds to exclusion grounds can be accomplished in just a few “precedential decision[s],” which then can govern broad swaths of cases. See Brief for Respondent 46. By contrast, the Government argues, Judulang’s approach would force it to determine whether each and every crime of conviction falls within an exclusion ground. Further, the Government contends that Judulang’s approach would grant eligibility to a greater number of deportable aliens, which in turn would force the Government to make additional individualized assessments of whether to actually grant relief. Id., at 47.

Once again, the Government’s rationale comes up short. Cost is an important factor for agencies to consider in many contexts. But cheapness alone cannot save an arbitrary agency policy. (If it could, flipping coins would be a valid way to determine an alien’s eligibility for a waiver.) And in any event, we suspect the Government exaggerates the cost savings associated with the comparable-grounds rule. Judulang’s proposed approach asks immigration officials only to do what they have done for years in exclusion cases; that means, for one thing, that officials can make use of substantial existing precedent governing whether a crime falls within a ground of exclusion. And Judulang’s proposal may not be the only alternative to the comparable-grounds rule. See supra, at 11-12. In rejecting that rule, we do not preclude the BIA from trying to devise another, equally economical policy respecting eligibility for §212(c) relief, so long as it comports with everything held in both this decision and St. Cyr.

III

We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance–whether lawful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protestations, it is not supported by text or practice or cost considerations. The BIA’s approach therefore cannot pass muster under ordinary principles of administrative law.

The judgment of the Ninth Circuit is hereby reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

FOOTNOTES

Footnote 1

The relevant part of §212(c), in the version of the exclusion statute all parties use, read as follows:

“Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)).” 8 U. S. C. §1182(c) (1994 ed.).

The parenthetical clause of this section prevented the Attorney General from waiving exclusion for aliens who posed a threat to national security, §1182(a)(3), and aliens who engaged in international child abduction, §1182(a)(9)(C).

Footnote 2

Firearms offenses are the most significant crimes falling outside the statutory grounds for exclusion. See Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 282, n. 4 (1990).

Footnote 3

Blake and Brieva-Perez clarified a 2004 regulation issued by the BIA stating that an alien is ineligible for §212(c) relief when deportable “on a ground which does not have a statutory counterpart in section 212.” 8 CFR §1212.3(f)(5) (2010).

Footnote 4

Careful readers may note that the example involving controlled substances offered in the last paragraph also involves an exclusion ground that sweeps more broadly than the deportation ground charged. The deportation ground requires “trafficking” in a controlled substance, whereas the exclusion ground includes all possession offenses as well. The BIA nonetheless held in Meza that the degree of overlap between the two grounds was sufficient to make the alien eligible for §212(c) relief. That holding reveals the broad discretion that the BIA currently exercises in deciding when two statutory grounds are comparable enough.

Footnote 5

DHS also charged two other grounds for deportation, but the BIA did not rule on those grounds and they are not before us.

Footnote 6

Compare Blake v. Carbone, 489 F. 3d 88, 103 (CA2 2007) (rejecting the BIA’s approach and holding instead that “[i]f the offense that renders [an alien] deportable would render a similarly situated [alien] excludable, the deportable [alien] is eligible for a waiver of deportation”), with Koussan v. Holder, 556 F. 3d 403, 412-414 (CA6 2009) (upholding the comparable-grounds policy); Caroleo v. Gonzales, 476 F. 3d 158, 162-163, 168 (CA3 2007) (same); Kim v. Gonzales, 468 F. 3d 58, 62-63 (CA1 2006) (same).

Footnote 7

The Government urges us instead to analyze this case under the second step of the test we announced in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), to govern judicial review of an agency’s statutory interpretations. See Brief for Respondent 19. Were we to do so, our analysis would be the same, because under Chevron step two, we ask whether an agency interpretation is ” ‘arbitrary or capricious in substance.’ ” Mayo Foundation for Medical Ed. and Research v. United States, 562 U. S. ___ , ___ (2011) (slip op., at 7) (quoting Household Credit Services, Inc. v. Pfennig, 541 U. S. 232, 242 (2004)). But we think the more apt analytic framework in this case is standard “arbitrary [or] capricious” review under the APA. The BIA’s comparable-grounds policy, as articulated in In re Blake, 23 I. & N. Dec. 722 (2005) and In re Brieva-Perez, 23 I. & N. Dec. 766 (2005), is not an interpretation of any statutory language–nor could it be, given that §212(c) does not mention deportation cases, see infra, at 16-17, and n. 11.

Footnote 8

Judulang also argues that the BIA is making an impermissible distinction between two groups of deportable aliens–those who have recently left and returned to the country and those who have not. According to Judulang, the BIA is treating the former as if they were seeking admission, while applying the “comparable grounds” approach only to the latter. See Reply Brief for Petitioner 16-18. That is the kind of distinction the Second Circuit held in Francis v. INS, 532 F. 2d 268 (1976), violated equal protection. See supra, at 3-4. But the Government contends that it is drawing no such line–that it is applying the comparable-grounds policy to all deportable aliens. Brief for Respondent 29. We think the available evidence tends to support the Government’s representation. See In re Meza-Castillo, No. A091 366 529, 2009 WL 455596 (BIA, Feb. 9, 2009) (applying comparable-grounds analysis to a deportable alien who had left and returned to the country); In re Valenzuela-Morales, No. A40 443 512, 2008 WL 2079382 (BIA, Apr. 23, 2008) (same). But in light of our holding that the comparable-grounds approach is arbitrary and capricious, we need not resolve this dispute about the BIA’s practice.

Footnote 9

The case would be different if Congress had intended for §212(c) relief to depend on the interaction of exclusion grounds and deportation grounds. But the Government has presented us with no evidence to this effect, nor have we found any. See Blake, 489 F. 3d, at 102 (Congress never contemplated, in drafting the immigration laws, “that its grounds of deportation would have any connection with the grounds of exclusion” in the application of §212(c)); see also infra, at 16-17.

Footnote 10

Perhaps that is why the BIA declined to apply similar reasoning in Meza–a case also involving an exclusion ground that sweeps more broadly than a deportation ground (although not to the same extent as in Blake). See supra, at 6.

Footnote 11

Congress amended §212(c), just five months before repealing it, to include a first-time reference to deportation cases. That amendment prohibited the Attorney General from granting discretionary relief to aliens deportable on several specified grounds. See Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1277 (effective Apr. 24, 1996). The change does not affect our analysis, nor does the Government argue it should. As the Government notes, the amendment “did not speak to the viability of the Board’s” comparable-grounds rule, but instead made categorically ineligible for §212(c) relief “those deportable by reason of certain crimes.” Brief for Respondent 20. Presumably, Congress thought those crimes particularly incompatible with an alien’s continued residence in this country.

Footnote 12

Because we find the BIA’s prior practice so unsettled, we likewise reject Judulang’s argument that Blake and Brieva-Perez were impermissibly retroactive. To succeed on that theory, Judulang would have to show, at a minimum, that in entering his guilty plea, he had reasonably relied on a legal rule from which Blake and Brieva-Perez departed. See Landgraf v. USI Film Products, 511 U. S. 244, 270 (1994) (stating that retroactivity analysis focuses on “considerations of fair notice, reasonable reliance, and settled expectations”). The instability of the BIA’s prior practice prevents Judulang from making this showing: The BIA sometimes recognized aliens in Judulang’s position as eligible for §212(c) relief, but sometimes did not.”

Judulang v. Holder, No. 10-694: 565 U.S.____ 12/12/2011

As permitted under the Freedom of Information Act (FOIA), United States Code, Title 5, Section 552, the AFM on the USCIS public web site is a redacted version of the complete manual. All redactions were made under both of the following exemptions:

• 5 USC 552(b)(2) to prevent the disclosure of records that are related solely to the internal personnel rules and practices of an agency; and
• 5 USC 552(b)(7)(E) to prevent the disclosure of techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure that could reasonably be expected to risk circumvention of the law.

The abbreviations “(b)(2)” and “(b)(7)(E)” in the manual indicate where data has been redacted.

Adjudicator’s Field Manual: Table of Contents

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“In Calma’s case, it is the harmless error principle that dooms his
effort to move ahead with his petition. The Board has already dismissed
Calma’s appeal from the revocation of his son’s I–130 petition. That
decision means that Calma cannot show prejudice from the IJ’s denial of
his continuance motion. Without the successful I–130 petition, he cannot
adjust his status. See 8 U.S.C. § 1255(a); Lockhart v. Napolitano, 573
F.3d 251, 254 (6th Cir.2009); Afzal v. Holder, 559 F.3d 677, 678 (7th
Cir.2009); Labojewski v. Gonzales, 407 F.3d 814, 822 (7th Cir.2005). No
amount of deferral of Calma’s proceedings could have any effect on the
final outcome. For this reason, his petition for review must be denied.

Khomyshyn faces a different problem. The IJ in his case provided a sound
reason for denying the request for a continuance. The judge explained
that four years was too long to wait to allow for Khomyshyn’s
adjustment, and he refused to speculate about the ultimate eligibility
of Khomyshyn’s wife for naturalization (not to mention what steps on her
husband’s behalf she would or would not take if she attained U.S.
citizenship). Khomyshyn argues that the IJ ignored his argument that his
wife would soon be eligible for citizenship, but the record does not
support him. The IJ explicitly acknowledged this possibility, but then
refused, in the absence of any evidence that naturalization was
necessarily forthcoming, to assume that it would come to pass. There was
no abuse of discretion in the IJ’s decision to take into account the
speculative nature of Khomyshyn’s hopes for later adjustment, as well as
the potentially lengthy time that would elapse while he waited.

For these reasons, we DENY both Calma’s petition for review (No.
10–2795) and Khomyshyn’s petition for review (No. 10–3973).”

United States Court of Appeals, Seventh Circuit.

CALMA v. HOLDER

Ricardo Yonzon CALMA, Petitioner, v. Eric H. HOLDER, Jr., Attorney
General of the United States, Respondent.

Oleh Khomyshyn, Petitioner, v. Eric H. Holder, Jr., Attorney General of
the United States, Respondent.

Nos. 10–2795, 10–3973.

Argued June 14, 2011. — December 05, 2011 Before POSNER, ROVNER, and
WOOD, Circuit Judges.

The petitioners in these consolidated cases, Ricardo Calma and Oleh
Khomyshyn, have a great deal in common. Both have been in the United
States for many years without permission, and each would like to adjust
his status to that of lawful permanent resident through relatives who
are legitimately in the United States. When the time came for an
immigration judge to issue a decision, each was found ineligible for
permanent residence because of the lack of an approved family-relative
petition, Form I–130. Confronted with that obstacle, they asked the IJs
to continue the removal proceedings, but the IJs denied those requests
and ordered removal. We have consolidated their petitions for review.
Although we are satisfied that we have jurisdiction over those
petitions, we find no abuse of discretion in the judges’ rulings and
thus deny both petitions.

I

A

Calma is a citizen of the Philippines who came to the United States as a
temporary worker in 1982. In 1986 he married Pamela Fuoss, a U.S.
citizen, and she filed an I–130 petition on his behalf. But during her
interview in support of the application and later in an affidavit, Fuoss
admitted that she married Calma only so that he could remain in the
United States. She withdrew her petition, prompting the legacy
Immigration and Naturalization Services to place Calma in deportation
proceedings before an IJ. After Calma failed to show up, the INS
administratively closed the case in September 1987.

Calma reemerged 18 years later, in April 2005, when his son Roderick, a
U.S. citizen, filed a second I–130 petition on his behalf. The
Department of Homeland Security approved Roderick’s petition in July of
that year, and in September Calma moved to restore his earlier
deportation hearing (by this time called a removal proceeding) to the
calendar. Calma indicated that once the proceeding was active again, he
would apply for permanent residence based on his son’s approved I–130
petition.

Calma’s petition to restore the case was successful, though as we shall
see, a Pyrrhic victory. IJ Zerbe held a deportation hearing, at which
the judge found that Calma was deportable for overstaying his visa, as
charged in the 1987 administrative-closure order. Calma informed the IJ
that he was working to obtain an adjustment of status through his son.
In response, the IJ continued the hearing for a year to give Calma time
to apply for his adjustment of status and to give the government an
opportunity to perform necessary background checks. At the next hearing,
the government informed Calma that it intended to revoke his son’s I–130
petition based on the fraudulent marriage in 1986. The IJ continued the
matter a second time to await the resolution of the revocation
proceedings.

The month before Calma’s next hearing, DHS revoked Roderick’s I–130
petition after concluding that Calma married Fuoss for immigration
benefits. The agency determined that the rebuttal evidence that Calma
submitted, including affidavits from Calma, his current wife, and the
couple who arranged the sham marriage, failed to refute the 1987
affidavit filed by Fuoss admitting the fraud. DHS concluded that the
1986 marriage “was not valid for immigration purposes,” and that Calma’s
fraud was a “good and sufficient” reason to deny his son’s I–130
petition. With the I–130 petition revoked, Calma no longer had a basis
for seeking permanent residence in the United States. At that point, he
asked for a continuance so that he could appeal the decision to revoke
to the Board. The IJ accommodated this request with a postponement until
October 24, 2008.

Unfortunately, when Calma returned on that date, the Board still had not
resolved his appeal from the revocation of the I–130 petition. Calma
asked for yet another continuance, but this time the IJ’s patience was
at an end. Commenting that he did not believe that any further delay was
warranted, he denied this last postponement and ordered Calma removed.

The Board dismissed Calma’s appeal from the order denying the
continuance in July 2010. It found that the pending I–130 appeal was
insufficient cause for granting the continuance. Moreover, the Board
continued, Calma was unable to show prejudice to his application for
permanent residence because he presented no evidence that his appeal
from the revocation of the I–130 petition had been successful. (This was
putting it mildly; in fact, five months earlier the Board had dismissed
Calma’s appeal of the revoked visa petition, citing Calma’s fraudulent
marriage. Calma did not petition for review of that decision.) The
petition for review now before us in No. 10–2795 is from this decision
of the Board. This was a final decision that discussed only the
continuance question; its practical effect was to leave undisturbed the
IJ’s decision that Calma was removable as charged.

B

Khomyshyn’s case is somewhat less complicated. He is a citizen of
Ukraine who came to the United States on a tourist visa in 2000. He
appeared at his first hearing before an immigration judge in March 2009
and asked IJ Zerbe to continue his case so that his wife, who was
herself a permanent U.S. resident at the time, could file an I–130
petition on his behalf. Khomyshyn explained that they were waiting to
submit the petition until his wife became a naturalized citizen, a
status she would have been eligible to begin seeking five months later.
(Oddly, the record is silent about her later actions. More than two
years have passed since the IJ’s decision, but Khomyshyn has not
revealed whether his wife has since naturalized. He concedes that at the
time of briefing the immediate-relative petition had not been
submitted.) He urged that as the spouse of a citizen he would be
immediately eligible for adjustment of status, but as the spouse of a
permanent resident he would be subject to DHS’s “priority-date” system
and would thus have to wait several years before becoming eligible for
this relief.

The IJ denied the continuance request and ordered Khomyshyn removed. The
IJ noted that Khomyshyn’s wife had not yet filed an immediate-relative
petition on his behalf and concluded that even if she had, a continuance
would still be inappropriate because, as a permanent resident, it would
take more than four years for her to confer a benefit on Khomyshyn.
Although the IJ recognized that the wait would be reduced if Khomyshyn’s
wife became a citizen, he thought it “inappropriate to assume that she
would qualify for ․ naturalization.” In general terms, the IJ explained
that he considered it improper to continue a case “so that the alien can
at some future unknown date accrue or develop an equity which would
qualify him for relief from removal,” particularly in light of the
agency’s goal that IJs complete cases within 18 months.

Khomyshyn’s appeal to the Board challenged only the IJ’s order denying
his request for a continuance until he could establish his eligibility
for adjustment of status. The Board noted that he did not otherwise
challenge his removability. Exercising de novo review, it affirmed the
IJ’s decision to deny the continuance request. In so doing, it
highlighted the IJ’s decision to deny “the continuance request because
[Khomyshyn's] wife had not yet filed the I–130” and the fact that
Khomyshyn “could not establish visa availability as the spouse of a
lawful permanent resident.” This reasoning, the Board concluded, was
consistent with the approach it had announced in Matter of Hashmi, 24 I.
& N. Dec. 785, 790–91 (B.I.A.2009), a precedential decision providing a
nonexhaustive list of factors that IJs should consider when deciding a
request for a continuance. The Board criticized the IJ for taking into
account his case-completion goals, but it concluded that remand was not
necessary because that factor was not the IJ’s primary consideration.
Khomyshyn’s petition for review, No. 10–3973, seeks relief from the
final decision of the Board refusing a continuance and thus ordering his
removal.

II

Both petitioners argue that the IJ (coincidentally, the same one) abused
his discretion in denying their requested continuances. But before we
address that question, we must decide whether we have jurisdiction over
these two petitions for review. In Kucana v. Holder, 130 S.Ct. 827
(2010), the Supreme Court held that the jurisdiction-stripping language
of 8 U.S.C. § 1252(a)(2)(B)(ii) did not apply to actions of the Attorney
General made discretionary by regulation, as opposed to statute. This
led to a ruling in Kucana itself that judicial review of a motion to
reopen removal proceedings in which the petitioner sought asylum was
available, albeit only for abuse of discretion. This was so despite the
fact that the ultimate question—whether to reopen—rests firmly within
the Attorney General’s discretion.

The BIA must reach a “final” decision on the overall removal proceeding
before a petition may be filed in this court, see 8 U.S.C. § 1252(a)(1)
(providing for “[j]udicial review of a final order of removal”), but no
one disputes that it has done so in both of the cases before us, even
though the central legal issue relates to the continuances. A “final”
judgment in a civil case in federal court is also normally necessary
before an appeal may be taken to the court of appeals, see 28 U.S.C. §
1291, but that does not mean that the appellant is limited to making
arguments about the ultimate merits of the case. We review bottom-line
judgments—a point that is well illustrated by the rule permitting us to
affirm on a basis not argued, as long as it finds proper support in the
record. See, e.g., Ruth v. Triumph Partnerships, 577 F.3d 790, 797 (7th
Cir.2009); Winters v. Fru–Con Inc., 498 F.3d 734, 743 (7th Cir.2007).
Interim rulings and alternative theories alike are folded into the final
judgment, and so the appellant may assert that the district court should
have relied on a different ground, or granted a continuance, or denied a
motion in limine, or compelled certain discovery. Just so here: Calma
and Khomyshyn now face final orders of removal, but their petitions do
not attack the merits of Board’s decisions not to adjust their status.
If they did, we would be compelled to dismiss both petitions for review
for want of jurisdiction. Instead, Calma and Khomyshyn are asserting
that the IJ ruled prematurely; they want continuances not for the
purpose of digging up evidence that already exists, but to allow time
for other agencies to complete their work. They argue that, at least in
this situation, a challenge to the denial of the continuance is not
covered by the jurisdiction-stripping rule. This is a point that
deserves close attention.

In Calma’s case, the government assumes without analysis that Kucana
supports this court’s jurisdiction and that our review is under the
deferential abuse-of-discretion standard. In Khomyshyn’s case, in
contrast, the government has argued that Kucana holds only that our
jurisdiction was not eliminated by 8 U.S.C. § 1252(a)(2)(B)(ii), which
removes jurisdiction to review a decision of the Attorney General “the
authority for which is specified under this subchapter to be in the
discretion of the Attorney General.” In Juarez v. Holder, 599 F.3d 560
(7th Cir.2010), however, decided two months after Kucana, we commented
that Kucana did not affect 8 U.S.C. § 1252(a)(2)(B)(i), which removes
jurisdiction over “any judgment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” See also
Leguizamo–Medina v. Gonzales, 493 F.3d 772 (7th Cir.2007). In both of
the cases before us, the ultimate decision (adjustment of status) is
governed by one of the statutes listed in section
1252(a)(2)(B)(i)—specifically, section 1255, which governs adjustment of
status—and so the question before us is whether we have jurisdiction to
review the denial of a continuance sought for the purpose of deferring
final decision in that kind of case. Although Kucana is informative, it
does not definitively resolve this issue. Indeed, the Court specifically
left open “the question whether review of [decisions made discretionary
by regulation] would be precluded if the court would lack jurisdiction
over the alien’s underlying claim for relief.” Kucana, 130 S.Ct. at 839
n. 17.

The government argues that because Khomyshyn’s request for a continuance
is “ancillary” to his underlying request for adjustment of status (and
it might have said the same about Calma), this court lacks jurisdiction
under 8 U.S.C. § 1252(a)(2)(B)(i). It finds support for this position in
our pre-Kucana decisions in Leguizamo–Medina, supra; MartinezMaldonado
v. Gonzales, 437 F.3d 679, 683 (7th Cir.2006) (precluding judicial
review over motions to reopen or reconsider where court lacked ability
to review underlying claim); and Dave v. Ashcroft, 363 F.3d 649, 652
(7th Cir.2004) (same). It also points to two post-Kucana decisions,
Juarez, 599 F.3d 560, and Pawlowska v. Holder, 623 F.3d 1138 (7th
Cir.2010), both of which it reads as adopting a broad reading of
Leguizamo–Medina. A closer look at Juarez and Pawlowska and similar
decisions in other circuits, however, reveals that the rule may not be
as absolute as the government suggests. The rationale of our decision in
Subhan v. Ashcroft, 383 F.3d 591 (7th Cir.2004), also points toward a
more nuanced approach to this question.

The best starting point for evaluating these arguments is with the
decision in Leguizamo–Medina. In that case, decided three years before
Kucana, petitioner Leguizamo–Medina had applied for adjustment of status
as the spouse of a U.S. citizen. At the hearing evidence emerged
suggesting that the marriage was a sham. Leguizamo–Medina’s husband then
withdrew his immediate relative petition, but later he submitted a new
affidavit swearing that the marriage was genuine. The IJ resolved
matters with a finding that the marriage was phony; this meant that
Leguizamo–Medina was not of good moral character and thus was not
entitled to cancellation of removal under 8 U.S.C. § 1229b (one of the
statutes mentioned in § 1252(a)(2)(B)(i)). The BIA agreed, and the
petitioner then advanced to this court.

We acknowledged that questions of law were reviewable pursuant to §
1252(a)(2)(D), but we pointed out that Leguizamo–Medina was raising only
two arguments: first, that the IJ should have believed her testimony
rather than her husband’s, and second, that the IJ abused his discretion
by declining to grant a continuance so that the husband’s sister could
testify. 493 F.3d at 774. We characterized both of those arguments as
factual and thus concluded that neither fell within the scope of §
1252(a)(2)(D). We commented on the issue that was eventually resolved in
Kucana (whether subpart (B)(ii) bars review only of decisions made
discretionary by statute), but put that to one side since the relevant
subpart for her case was (B)(i). The latter subsection, we said,
“forecloses all review of decisions denying requests for cancellation of
removal.” We then continued as follows:

When an alien seeks not deferral of final decision, but just an
opportunity to present more evidence, it is difficult to see how one
could “review the denial of a continuance” at all. The thing being
reviewed (when review is authorized) is the agency’s final decision
(here, a decision not to cancel the petitioner’s removal). In an appeal
from a district court, we don’t “affirm the order sustaining the hearsay
objection” or anything similar; we review the final decision (see 28
U.S.C. § 1291) to determine whether the steps leading to that decision
were erroneous (and, if erroneous, whether they were harmless). Just so
here—with the difference that § 242(a)(2)(B)(i) puts the decision beyond
review, and thus insulates the choices leading to that decision. When a
decision is unreviewable, any opinion one way or the other on the
propriety of the steps that led to that decision would be an advisory
opinion.

Id. at 775.

This rationale, as the Leguizamo–Medina court implicitly acknowledged,
is in real tension with the holding in Subhan. There we considered the
question whether section 1252(a)(2)(B)(i) barred consideration of an
IJ’s refusal to grant a continuance to an alien who was waiting for the
Department of Labor to issue a certificate allowing him to be employed
in the United States. 383 F .3d at 593. The only comment the judge made
as he ruled on Subhan’s request was that Subhan might eventually be able
to acquire lawful permanent resident status based on his employment, but
that he was not eligible yet for that relief. This, as we pointed out,
was a statement of the obvious. It was a description of what was going
on, rather than an explanation or a reason.

In finding this decision reviewable, and outside the bar of (B)(i), we
observed that Subhan was not asking us to review an adjustment-of-status
decision—something that would have been barred by section 1255. Instead,
he was asking us to review the propriety of the continuance—that is to
say, whether the Board’s decision to render its final ruling on the
merits of the 1255 petition when it did was procedurally sustainable.
(Part of our opinion examined the question whether review was barred by
(B)(ii), but that is of no moment in the present case.) We concluded
that Congress would not have wanted “to place beyond judicial review
decisions by the immigration authorities that nullif[y] the statute.”
383 F.3d at 595. Otherwise, “immigration judges [could] with impunity
refuse to grant one-week continuances to persons in Subhan’s position.
And that would sound the death knell for the request, since unlike most
grounds for adjustment of status, adjustments based on employment, like
those based on marriage to a U.S. citizen, cannot be pursued once the
alien has been removed from the United States.” Id. An allegation that
the agency has “nullified” a statute surely raises a legal question,
cognizable under § 1252(a)(2)(D).

That conclusion alone would be enough to permit us to see if a
comparable problem taints either Calma’s or Khomyshyn’s cases. There is
more, however, that must be said about the logic of the excerpt from
Leguizamo–Medina that we have reproduced above. It is true, as the
government argues, that Juarez and Pawlowska appear at first blush to
reaffirm Leguizamo–Medina even after Kucana. But there is reason to
question this conclusion. In Juarez, we noted that in cases where
jurisdiction exists to review the underlying claim for relief, Kucana
now requires the review of denied continuances for abuse of discretion.
See 599 F.3d at 564–65. It was only in a footnote that the court
suggested that Leguizamo–Medina was “unaffected by Kucana.” Id. at 565
n. 4. More importantly, Juarez was a case in which the petitioners
sought “various forms of relief from removal,” at least one of
which—asylum—was subject to judicial review. 599 F.3d at 561. The
comment about Leguizamo–Medina was thus unnecessary to the outcome.
There is also less to Pawlowska than meets the eye. There, although the
IJ had denied a continuance where the underlying request was for
adjustment of status to permanent residence, there was no need for this
court to decide whether that denial was reviewable, because the IJ had
made clear that he intended to exercise his discretion to deny the
request for adjustment because of previous visa fraud in any event. 623
F.3d at 1140. Only after concluding that this merits-based reason was
sufficient to preclude review did the court comment that
Leguizamo–Medina bars review of a continuance decision that is
“ancillary” to any of the forms of relief mentioned in (B)(i).

Other circuits have also stopped short of adopting the strong version of
Leguizamo–Medina. They have acknowledged an inability to review
analogous cases without concluding that the absence of jurisdiction over
the merits of the final relief sought always bars review of procedural
requests like motions for a continuance or to reopen. See, e.g.,
Alzainati v. Holder, 568 F .3d 844,849–50 (10th Cir.2009) (finding
jurisdictional significance, for § 1252(a)(2)(B)(i) purposes, in the
ground on which the BIA bases its decision, reserving possibility of an
embedded due process or other legal question); Vargas v. Holder, 567
F.3d 387, 390 (8th Cir.2009) (considering implications of a broad view
of jurisdiction-stripping under (B)(i) for motions to reopen a
proceeding seeking relief for which review would be unavailable, and
rejecting such a rule); Obioha v. Gonzales, 431 F.3d 400, 405–06 (4th
Cir.2005) (acknowledging no jurisdiction to review a decision to deny
cancellation of removal, but noting that the BIA “never got that far”
and finding reviewable its decision to deny a request to remand).

The common theme that runs through these cases is the importance of the
relation between the resolution of the procedural request and the
disposition of the underlying claim. The court’s inability to review the
underlying claim for relief “is, standing alone, an insufficient basis
to preclude review” of a related procedural motion. Alzainati, 568 F.3d
at 849. Instead, judicial review is foreclosed by § 1252(a)(2)(B)(i)
only if the agency’s rationale for denying the procedural request also
establishes the petitioner’s inability to prevail on the merits of his
underlying claim. That was the case in Pawlowska, in which the IJ’s
decision rested on the petitioner’s fraud. See, e.g., Mariuta v.
Gonzales, 411 F.3d 361, 365 (2d Cir.2005) (“Where a denial is based on
the BIA’s ‘merits-deciding’ analysis of the alien’s entitlement to the
ultimate relief sought, the denial [of a motion to reopen] may properly
be said to be a decision ‘under’ the statutory provision providing that
ultimate relief.”); Pilica v. Ashcroft, 388 F.3d 941, 948 (6th Cir.2004)
(“[A] motion to reopen that does not involve the consideration of relief
on the merits should not be treated as ‘regarding’ the granting of
[permanent residence].”).

In keeping with this analysis, we have asserted jurisdiction to review
procedural rulings like continuances in a number of cases decided after
Kucana. Thus, for instance, in Vahora v. Holder, 626 F.3d 907 (7th
Cir.2010), we had to decide whether we had jurisdiction to review an
IJ’s refusal to close a petitioner’s case administratively so that it
could be joined with his parents’ case. Noting there that Kucana
established the reviewability of an alien’s request for a continuance,
we applied similar reasoning to administrative closures. Id. at 918. In
Mozdzen v. Holder, 622 F.3d 680 (7th Cir.2010), we exercised
jurisdiction over the denial of a continuance in circumstances quite
like those we face here—that is, a case in which there is no
jurisdiction to review the underlying claim for relief. The Mozdzen
petitioners sought a continuance to pursue cancellation of removal or
adjustment of status after having committed visa fraud by falling into
the trap laid by the sting known as Operation Durango. Id. at 682; see
also Wroblewska v. Holder, No. 10–1618, 2011 WL 3773457 (7th Cir. Aug.
24, 2011). Even though we would not have been able to review the
petitioners’ applications for either cancellation or adjustment of
status, see 8 U.S.C. §§ 1229b and 1255, we said that “[w]e review
discretionary decisions such as denials of continuances under the
deferential abuse of discretion standard.” Id. at 684. In the end, this
did the Mozdzens little good, as we went on to find no abuse of
discretion, but this was a ruling on the merits rather than a
jurisdictional decision.

We are persuaded that there are identifiable circumstances under which a
critical procedural step in a removal proceeding, such as the denial of
a continuance that is sought for purposes of allowing another agency to
complete its review, the denial of a motion to reconsider, a refusal to
remand, or a refusal to reopen a case, lies within our jurisdiction even
though we are barred from evaluating the BIA’s ultimate decision in the
circumstances spelled out in § 1252(a)(2)(B)(i). [Because this opinion
reconciles several competing lines of authority within the circuit, it
has been circulated to all active judges pursuant to Circuit Rule 40(e).
No judge in active service voted to hear these cases en banc.] Sometimes
review will be possible because, as in Subhan, the challenged action
effectively nullifies the statutory scheme and thus for all practical
purposes raises a question of law. Sometimes review will be possible
because, as in Juarez, the request for the unreviewable relief will be
coupled with a request for relief like asylum that is reviewable. If,
however, it is impossible to distinguish the challenged action from the
determination on the merits, then jurisdiction is lacking and the
petition must be dismissed.

It is worth recalling that a central theme in Kucana was the importance
of judicial review to protect the procedural fairness of the agency
process. As the Supreme Court put it, motions to reopen are a
“procedural device serving to ensure that aliens are getting a fair
chance to have their claims heard.” 130 S.Ct. at 837. This purpose is,
if anything, even more important for aliens like Calma and Khomyshyn who
will be strictly barred from seeking review of the denial of their
claims for adjustment of status. Kucana emphasized “the presumption
favoring judicial review of administrative action.” Id. at 839. It noted
that “[w]hen a statute is reasonably susceptible to divergent
interpretation,” it should be construed in a way that permits review.
Id. The provision here, § 1252(a)(2)(B)(i), prohibits judicial review of
decisions on adjustment of status, but it says nothing about review of
antecedent procedural decisions such as continuances that shape the
final outcome. We note that our sister circuits have come to conflicting
results on the question whether judicial review is ever available in
cases where review of the underlying claim for relief is foreclosed.
Compare Thimran v. Holder, 599 F.3d 841, 845 (8th Cir.2010) (yes), with
Freeman v. Holder, 596 F.3d 952,956 n. 2 (8th Cir.2010) (no); and
compare Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir.2004) (per
curiam) (no), with Rodriguez, 253 F.3d at 800 (yes, unless the Board
addressed the merits of the request for relief).

We should not confuse the unavailability of judicial review with the
unimportance of the kinds of relief that are covered by §
1252(a)(2)(B)(i): waivers of inadmissibility (§§ 1182(h) and 1182(i));
cancellation of removal (§ 1229b); voluntary departure (§ 1229c), and
adjustment of status (§ 1255). These are all measures that Congress has
chosen to make available to deserving aliens; it has simply chosen at
the same time to make the competent agency’s decision on the merits of
those types of relief final. Sometimes, when a continuance is requested,
the court may not even know what is at stake. If, for example, an alien
has appeared before an IJ asking both for asylum (a reviewable decision)
or voluntary departure (a non-reviewable decision), and asks the IJ for
a continuance so that she can decide which one to pursue, the grant or
denial of such a continuance can be reviewed without upsetting the
ultimate finality of the decision on the merits. Jurisdiction is
something that must be ascertainable ex ante; it cannot depend on events
that occur months or years after the petition is filed.

In summary, decisions like the rulings on continuances that Calma and
Khomyshyn have challenged, which do not implicate the merits of a final
unreviewable order but instead merely defer the resolution of the merits
so that the process as a whole can be completed with integrity, may in
the right circumstances, and do here, fall within our jurisdiction. Dave
v. Ashcroft, 363 F.3d 649, if it survived Kucana, is distinguishable
from the cases before us because all three of the decisions at issue in
Dave—a ruling on cancellation of removal, a ruling on a motion to
reconsider the denial of cancellation, and a ruling on the refusal to
reopen the proceeding—were closely linked with the merits of the
unreviewable decision on cancellation. And Huang v. Mukasey, 534 F.3d
618 (7th Cir.2008), relied entirely on the decision in Kucana from this
court that the Supreme Court reversed. See 533 F.3d 534 (7th Cir.2008).
Having satisfied ourselves that we have jurisdiction over these
petitions, we can move on to the merits.

III

Unfortunately for both petitioners, our discussion here will be brief.
The standard of review, as we have already noted, is one that gives
great deference to the responsible IJ. An IJ has the discretion to grant
a continuance for “good cause shown,” see 8 C.F.R. § 1003.29, but as
long as he gives a reason for his decision, this court will uphold the
decision “unless it ‘was made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis such as invidious discrimination against a
particular race or group.’ “ Victor v. Holder, 616 F.3d 705, 708 (7th
Cir.2010), quoting Achacoso–Sanchez v. INS, 779 F.2d 1260,1265 (7th
Cir.1985); see Subhan, 383 F.3d at 595. In addition, the principle of
harmless error applies to administrative proceedings in general, and to
immigration rulings in particular. See Yuan v. Att’y Gen. of the United
States, 642 F.3d 420,427 (3d Cir.2011); Victor, 616 F.3d at 710;
Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir.2010); Alam v.
Gonzales, 438 F.3d 184, 187–88 (2d Cir.2006); Ngarurih v. Ashcroft, 371
F.3d 182,191 n. 8 (4th Cir.2004).

In Calma’s case, it is the harmless error principle that dooms his
effort to move ahead with his petition. The Board has already dismissed
Calma’s appeal from the revocation of his son’s I–130 petition. That
decision means that Calma cannot show prejudice from the IJ’s denial of
his continuance motion. Without the successful I–130 petition, he cannot
adjust his status. See 8 U.S.C. § 1255(a); Lockhart v. Napolitano, 573
F.3d 251, 254 (6th Cir.2009); Afzal v. Holder, 559 F.3d 677, 678 (7th
Cir.2009); Labojewski v. Gonzales, 407 F.3d 814, 822 (7th Cir.2005). No
amount of deferral of Calma’s proceedings could have any effect on the
final outcome. For this reason, his petition for review must be denied.

Khomyshyn faces a different problem. The IJ in his case provided a sound
reason for denying the request for a continuance. The judge explained
that four years was too long to wait to allow for Khomyshyn’s
adjustment, and he refused to speculate about the ultimate eligibility
of Khomyshyn’s wife for naturalization (not to mention what steps on her
husband’s behalf she would or would not take if she attained U.S.
citizenship). Khomyshyn argues that the IJ ignored his argument that his
wife would soon be eligible for citizenship, but the record does not
support him. The IJ explicitly acknowledged this possibility, but then
refused, in the absence of any evidence that naturalization was
necessarily forthcoming, to assume that it would come to pass. There was
no abuse of discretion in the IJ’s decision to take into account the
speculative nature of Khomyshyn’s hopes for later adjustment, as well as
the potentially lengthy time that would elapse while he waited.

For these reasons, we DENY both Calma’s petition for review (No.
10–2795) and Khomyshyn’s petition for review (No. 10–3973).

WOOD, Circuit Judge.

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Legomsky, Stephen H. , The Removal of Irregular Migrants in Europe and America (October, 18 2011). REASEARCH HANDBOOK ON MIGRATION AND INTERNATIONAL LAW, Vincent Chetail, ed., Edward Elgar Publishing, 2012; Washington University in St. Louis Legal Studies Research Paper No. 11-10-03. Available at SSRN: http://ssrn.com/abstract=1945833

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In Portillo-Rendon v. Holder, 2011 WL 5319855 (7th Cir. 2011), the U.S.
Court of Appeals for the Seventh Circuit dismissed a petition for review
filed by a citizen of Mexico whose application for cancellation of
removal under INA § 240A(b) [8 USCA § 1229b(b)] (applicable to
nonpermanent resident aliens) was denied by the IJ and the BIA based on
their conclusion that the petitioner did not establish the required good
moral character (GMC). The court rejected the petitioner’s contention
that his due process rights were violated and concluded that the
decision whether an alien has the required GMC reflects an exercise of
administrative discretion, which is insulated from the court’s review
authority.

The petitioner entered the U.S. without inspection and remained in the
U.S. for an extended period without detection by immigration officials.
He and his wife, who is also without legal status, gave birth to three
U.S.-citizen children. After several traffic offenses–at least four for
drunk driving and three for driving after his license had been suspended
or revoked–he came to the attention of DHS, which commenced removal
proceedings against him. Mr. Portillo-Rendon filed an application for
cancellation relief relying upon his family’s hardship considerations.
However, the IJ denied the application, reasoning that the petitioner
had not satisfied the threshold statutory GMC requirement due to his
disdain for the rules of the road and incorrigible criminal behavior,
including an offense involving high-speed flight to avoid arrest. The
petitioner failed to impress the IJ that his participation in alcohol
treatment demonstrated rehabilitation in light of the fact that several
of the convictions post-dated the alleged rehabilitation.

After the BIA affirmed the IJ’s decision, Mr. Portillo-Rendon filed his
petition with the circuit court, which pointed out that, except for
constitutional claims and questions of law, it does not have
jurisdiction to review a denial of discretionary cancellation relief,
citing to INA § 242(a)(2)(B)(i) and (D) [8 USCA § 1252(a)(2)(B)(i) and
(D)]. In response to the petitioner’s argument that eligibility for
cancellation of removal must be a question of law and thus open to
plenary judicial review, the court retorted that the petitioner’s
argument reflected a confusion over what the court thought it had
cleared up in its prior decision, Muratoski v. Holder, 622 F.3d 824 (7th
Cir. 2010). It proceeded to explain that a decision of whether an alien
has “good moral character,” a statutory eligibility requirement for
nonpermanent resident cancellation, reflects an exercise of
administration discretion. It expounded that, for the purpose of INA §
242(a)(2)(D) [8 USCA § 1252(a)(2)(D)] (permitting courts to exercise
jurisdiction over constitutional claims and questions of law), “law”
means a dispute about the meaning of a legal text so that the “alien
wins if the text means one thing and loses if it means something else,”
citing to Cevilla v. Gonzales, 446 F.3d 658 (7th Cir. 2006).

The court observed that eight circuits agree with Cevilla, and only the
Ninth Circuit does not (citations were not provided by the court). The
Seventh Circuit emphasized that, in the instant case, there was no
dispute about a controlling text and that the only dispute was whether
Portillo-Rendon’s driving infractions are serious and frequent enough to
show that he lacks GMC as opposed to isolated mistakes. The court
considered that the IJ’s and BIA’s thinking that the record showed “poor
moral fiber” was a “discretionary call” and thus not subject to judicial
review.

Addressing the petitioner’s due process challenge, the court disparaged
what it characterized as his “flabby, unfocused” argument in this regard
and expressed agreement with the government’s contention that an alien
does not have either a liberty or property interest in discretionary
cancellation relief. The court declared that it is appropriate to
consider the Constitution only if the statute and regulations are
deficient. It pointed out that Congress has given aliens significant
procedural entitlements, citing to INA § 240 [8 USCA § 1229a], and that
regulations have added more. The court noted that Portillo-Rendon was
not contending that these entitlements are constitutionally deficient or
that the agency failed to provide him with all the process required by
the statutes and regulations with respect to the GMC determination. Thus
it held that the petitioner’s challenges were not cognizable under INA §
242(a)(2)(D).