‘Look to make your course regular, that men may know beforehand what they may expect,” wrote the philosopher and jurist Francis Bacon. The U.S. Supreme Court may have had Bacon’s maxim in mind when, on Dec. 12, 2011, it issued a decision in the case of Judulang v. Holder, unanimously holding that the Board of Immigration Appeals’ (BIA) approach to waivers of deportation under former section 212(c) of the Immigration and Nationality Act (INA) was “arbitrary and capricious” in violation of the Administrative Procedures Act (APA). While notable for its potential impact on certain classes of lawful permanent residents in the removal context, Judulang is also the latest decision to highlight what is a long history of inconsistency and irrationality in the immigration field as a whole: agency policies that deviate from established standards, arbitrary tests that ignore the plain language of the statute or regulations, and increased focus and authority given to discretionary decision-making.

The need for consistency, fairness, and predictability in administrative rule-making and decision-making is imperative, and desired by foreign nationals, employers, immigration practitioners, and adjudicators alike. Although agencies—none more so than those that deal with immigration issues—operate within a politically charged arena and face a great deal of pressure, Judulang reminds us that fair and consistent rule-making and decision-making cannot be sacrificed. As Justice Elena Kagan pointedly wrote, “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.”

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