Today the Supreme Court agreed to hear a case about the continued availability of § 212(c) relief. The question presented in Judulang v. Holder, No. 10-694, is
Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the Immigration and Nationality Act.
As the cert petition explains, this appeal from a Ninth Circuit decision asks the Court to determine whether and how 212(c) relief applies to individuals in deportation proceedings (as opposed to inadmissibility proceedings).
According to the cert petition, in 2005 “the BIA ruled that deportable lawful permanent residents(LPRs) who had not traveled abroad after their convictions could only seek discretionary relief if the government charged them under a deportation provision inthe INA that used similar language to an exclusion provision. Matter of Blake, 23 I&N Dec. 722 (BIA 2005). … The circuits are split three ways as to the lawfulness of the BIA’s new approach. The Second Circuit has correctly rejected the BIA’s new position as resting on an irrational distinction. The Ninth Circuit, in a sharply divided en banc decision, ruled that Section212(c) does not apply to deportable LPRs at all–a position that neither the BIA nor the government has ever endorsed and that directly conflicts with St. Cyr. Eight other circuits have affirmed the BIA’s new approach.”