In a Christmas gift to a couple of my clients, the Supreme Court rejected the Board of Immigration Appeal's statutory comparability test for use of former section 212(c). Since 212(c) refers to inadmissibility, the test provided that the waiver is available for a ground of deportability only if the statutory text is substantially similar to the text of a ground of inadmissibility. The Supreme Court, in a rare unanimous decision, convincingly demonstrated that the Board's test was untethered to the plain language of 212(c) and that it was arbitrary and capricious. The comparability test is arbitrary and capricious because determining whether a ground of deportability is too broad or too narrow has nothing to do with the immigrant's fitness to remain in the U.S. In other words, the inclusion of too many or too few other crimes in a ground of deportability is irrelevant. The Court therefore held the Board's rule did not survive even the deferential review given to it under Administrative Procedure Act.
The Court noted the Board was free to develop a new rule, but the reasoning behind the Court's decision suggests a rule that focuses on the immigrant's actual conviction. If it would make an immigrant inadmissible, then it should to be waivable under 212(c) even for a charge of deportability. The Court did not actually hold that, but indicated that such a rule would not be irrational. Hopefully, the Board will get the hint.
Read the opinion at http://www.supremecourt.gov/opinions/11pdf/10-694.pdf.