PFA - family/household member - relationship by affinity - child of long-time paramour

Commonwealth v. Walsh - Superior Court - January 19, 2012

http://www.pacourts.us/OpPosting/Superior/out/a33042_11.pdf

Conviction for contempt of PFA order upheld for violating terms of order prohibiting threats. Appellant threatened the protected party -- S.S., the teen-age daughter of his paramour of 13 years -- when he told the daughter's friend that if he saw SS, "she'd be fucked." The friend relayed this message to SS, who went to the police, who filed a contempt petition.

Challenge to SS's status as a protected party because of lack of a family relationship was rejected. SS had lived with appellant for about 13 years, during which time he treated her as a stepdaughter. She left appellant's home because he had sexually abused her.

The court determined that Appellant and SS were related by affinity. The term “affinity” is not defined in the PFA Act. See 23 Pa.C.S. § 6102. The dictionary defines “affinity” as, inter alia, “related by marriage or by ties other than those of blood.” Webster’s American Dictionary, 14 (2nd College ed. 2000) (emphasis added). Instantly, S.S. has ties other than those of blood to Appellant as S.S.’s two half-siblings are the natural children of Appellant and S.S.’s mother. Given the remedial purpose of the PFA Act it is incumbent upon us to interpret “affinity” so as to include this relationship.

Challenge to sufficiency of the evidence also rejected, since the order prohibited contact with SS, either directly or through third parties.

Appellant's subpoena of phone records was properly rejected, where it was not served until the day before the contempt hearing.

admin. law - due process

Gombach v. Department of State, 692 A.2d 1127, 1129-30 (Pa. Cmwlth. 1997)

The right to due process is equally applicable to administrative agencies as it is to judicial proceedings. The fundamental requirements of due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Procedural due process requires that the individual be given adequate information with which to prepare a defense. For notice to be adequate, it must at the very least contain a sufficient listing and explanation of any charges against the individual.

See also First National Bank of Pike County v. Department of Banking, 300 A.2d 823, 825 (Pa. Cmwlth. 1973) (The essential elements of due process in administrative proceedings are "notice and [the] opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal" with jurisdiction over the matter.)

UC - vol. quit - late payment of wages - single instance

Smith v. UCBR - Cmwlth Court - January 9, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/835CD11_1-9-12.pdf

Claimant did not have good cause to quit work because of late payment of wages where

- only one instance of late payment

- Claimant did not complaint to ER before quitting

- Claimant did not tell ER before she quit.

UC - refusal of drug-testing

Keeler Transport v. UCBR - January 9, 2012 - unreported memorandum decision.

http://www.pacourts.us/OpPosting/Cwealth/out/820CD11_1-9-12.pdf

Claimant held ineligible for UC because of failure to immediately report for drug testing when instructed to do so.

In UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 851 A.2d 240 (Pa. Cmwlth. 2004), this Court held that Section 402(e.1) of the Law governs discharges related to drug tests and not the general willful misconduct discharge governed by Section 402(e) of the Law. UGI Utilities, 851 A.2d at 245. See also Architectural Testing, Inc. v. Unemployment Compensation Board of Review, 940 A.2d 1277, 1281 (Pa. Cmwlth. 2008) (noting both the failure of a drug test, and the refusal to take a drug test, are now analyzed under Section 402(e.1)). Accordingly, Section 402(e.1) requires an employer to (1) demonstrate that it adopted a substance abuse policy; and (2) that the employee violated that policy. UGI Utilities, 851 A.2d at 252. Further, the policy permitting drug and alcohol testing need not be detailed. Architectural Testing, 940 A.2d at 1282. Once the employer establishes the policy, the burden shifts to the employee to show that the policy was either trumped by a statute or collective bargaining agreement. UGI Utilities, 851 A.2d at 252.

Here, Employer’s substance abuse policy states that [r]efusal to submit to a requested alcohol or drug test is grounds for immediate discharge. Refusal includes refusing to report immediately to the testing location upon request …. The Federal regulation, by which Employer is bound, also states that drivers must report immediately for testing. 49 C.F.R. §382.305(l). The Federal regulation provides that an employee is considered to have refused a drug test when he "fail[s] to appear for any test . . . within a reasonable time, as determined by the Employer, . . . after being directed to do so by the employer." 49 C.F.R. §40.191(a)(1)

Claimant did not comply with the requirement to proceed immediately to the testing facility, i.e., first thing Monday morning. Telling Employer that he would go for the drug screen after he returned from Massachusetts constitutes a "refusal" as that term is defined in Employer’s substance abuse policy and in FMCSA regulations

abuse - expungement - single hearsay statement by alleged victim

In re E.A. - Cmwlth. Court - January 9, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/650CD11_1-9-12.pdf

Corroboration needed for hearsay statement of very young child. - CYS determintion of abuse based on single out-of-state DVD about which defendant had no notice does not support finding of abuse. The Supreme Court‟s guidelines in A.Y. appear to allow that, in special situations, uncorroborated hearsay testimony of a child can constitute substantial evidence of child abuse. We have been unable, however, to find a single instance of an indicated report of abuse being based upon a single, out-of-court statement of a child of any age, let alone a child of four years.

Daughter‟s statements of sexual abuse involve Father, Father's wife, a cow and dogs. Her statements ramble, describing incidents that took place under a bed and in her bed, years ago or several days ago. Daughter's statement is simply not competent to stand as the sole support of a finding of sexual abuse.

Daughter's statement was not corroborated by the testimony of CWS workers, whose only experience with Daughter was attendance at the interview is not corroboration. Their testimony about what Daughter said at her interview is double hearsay that was redundant, not corroborative, of the out-of-state DVD. Hearsay can not constitute independent corroborative evidence of hearsay. A.P. v. Department of Public Welfare, 696 A.2d 912, 916 (Pa. Cmwlth. 1997). In short, there was no corroboration to support the Bureau‟s finding that Father sexually assaulted Daughter.

As noted, there is no prior case where a court has allowed a child‟s uncorroborated hearsay statement to serve as the sole evidence to support a factual finding of child abuse. Indeed, county agencies routinely offer corroborating evidence. In C.E. v. Department of Public Welfare, 917 A.2d 348, 351 (Pa. Cmwlth 2007), for example, the county agency offered testimony from the emergency room physician who treated the child as corroborating evidence. See also A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003) (testimony of physician with expertise in sexually abused children offered to corroborate hearsay statements of child victim); Mortimore v. Department of Public Welfare, 697 A.2d 1031 (Pa. Cmwlth 1997) (testimony of physician offered to corroborate hearsay statement of child victim of sexual abuse); D.P., 733 A.2d 661 (testimony of child psychiatrist and medical doctor offered to corroborate hearing statement of child victim, although the child‟s statement was held inadmissible). Here, the CYW offered no comparable evidence to corroborate Daughter‟s out-of-court statement that Father, as well as his wife and family dogs, had subjected her to various acts of defilement. The evidence CYS claims to be corroboration was only more hearsay.

Where the hearsay statement is that of a very young child, corroboration is needed to find that a perpetrator engaged in sexual intercourse, cunnilingus and digital penetration of the child, as was reported here by CYS. A medical examination to confirm vaginal penetration and an investigation of Daughter‟s living situation in New York, to consider what other persons had an opportunity to abuse Daughter in the past, should have been undertaken. This is not the exceptional case where uncorroborated hearsay alone may be sufficient to justify a finding of abuse.

The DVD was admitted without prior determination of indicia of reliability - In his second issue, Father contends that the hearing officer erred, procedurally, in ruling that the New York DVD was admissible in lieu of Daughter‟s testimony. We agree. The ruling was made before the hearing officer reviewed the New York DVD. A stenographer did not transcribe the videotaped interview, so the hearing officer did not have a written transcript available at the in camera hearing. Instead, the hearing officer relied upon the telephonic statements of Hall, the interviewer, for a recital of what Daughter said in the interview. CYS opinion that the videotaped interview of Daughter satisfied the requirements of 42 Pa. C.S. §5986(a)(1) was beside the point. It is the job of the factfinder to ensure "that the time, content and circumstances of the statement provide sufficient indicia of reliability …." 42 Pa. C.S. §5986(a)(1) (emphasis added). This requires a review of the hearsay statement to determine its admissibility.

Here, the factfinder relied upon CYS testimony in admitting the New York DVD in lieu of Daughter‟s testimony. This was error. CYS testimony was appropriate for establishing the time and circumstances of Daughter‟s statement. However, only by viewing the New York DVD could the hearing officer determine whether the content of Daughter‟s statement demonstrated sufficient indicia of reliability to warrant its admission. By admitting the New York DVD on the basis of a CYS statement of what it contained, the hearing officer repeated the mistake identified in A.Y.: [T]he Agency was able to rely on its own employees‟ recitation of what the three-year old child stated had occurred … [This] procedure … prevented the hearing officer from having any opportunity to judge the evidence except through the prism provided by the Agency. A.Y. at 125, 641 A.2d at 1152 (emphasis added). Likewise here, the hearing officer decided the admissibility of the New York DVD "through the prism provided by" Wyoming County.

Alleged abuser not required to provide contradictory evidence - The hearing officer criticized Father for not providing "significant contradictory evidence." This was not Father‟s burden. We do not require litigants to prove a negative because it cannot be done. It was Wyoming County‟s duty to investigate the serious allegations made by Mother, and it did not do so. It relied entirely upon New York personnel, for whose work Wyoming County could not vouch. Wyoming County did not investigate Father‟s background, character, reputation or family or offer any evidence such as a physical exam or evaluation of a physician or psychologist to corroborate the New York DVD hearsay statement.

Accordingly, we conclude that substantial evidence does not support the factual finding that Father committed a sexual assault and, therefore, reverse

UC - vol. quit - firm offer of new job - temp. v. permanent

Solar Innovations v. UCBR - January 5, 2012 - Cmwlth. Court (2-1)

http://www.pacourts.us/OpPosting/Cwealth/out/933CD11_1-5-12.pdf

Although an employee who resigns from employment to accept a "firm offer" of employment elsewhere may be eligible for UC benefits when the second job proves to be unavailable, Empire Intimates v. UCBR, 655 A.2d 662 (Pa. Cmwlth. 1995), this is not what occurred here. The second job did not become unavailable to Claimant; it simply ran the course expected of a temporary contract job with a finite period of employment.

The issue presented here appears to be one of first impression5—whether one can quit a stable, full-time, non-temporary job and accept a temporary job, yet remain eligible for UC benefits when the temporary job foreseeably ends, as it did in this case after approximately one month.

Here, the Board found that Claimant‟s employment with Staffing Agency was “temporary, between one and six months.” The Board additionally found that “[t]his assignment could be followed by another.”

"It is well-established that . . . „the receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature.‟" Township of North Huntingdon, 450 A.2d at 769 (quoting Steinberg v. UCBR, 383 A.2d 1284, 1286 (Pa. Cmwlth. 1978)). "The offer of employment, however, must be definite," Id. at 769 (citing Baron v. UCBR, 384 A.2d 271, 272 (Pa. Cmwlth. 1978)), and "the claimant must act prudently with regard to his employer." Id. (citing UCBR v. Pennsylvania Power and Light Co., 351 A.2d 698, 699 (Pa. Cmwlth. 1976)). "[T]he mere possibility of obtaining another job is insufficient to establish that employment was terminated for good cause." Id. In addition, although "the claimant may have personal, economic, or career reasons for making h[is] decision to leave the employer . . . that does not constitute a necessitous and compelling cause for voluntarily quitting." Empire Intimates, 655 A.2d at 665.

The Board cites Brennan v. UCBR, 504 A.2d 432, 433 (Pa. Cmwlth. 1986) and Antonoff v. UCBR, 420 A.2d 800, 801 (Pa. Cmwlth. 1980), are distinguishable; neither involved a claimant quitting non-temporary employment to take a new position known to be temporary at the time of quitting.

Here, as in Empire Intimates, the ultimate unavailability of work for Claimant was the result of Claimant‟s personal choice. Instead of remaining at his full-time, non-temporary position with Employer, Claimant chose to accept a temporary job with Staffing Agency, which ended within the period of time the position was expected to end, sometime between one and six months. The offer and acceptance of a known temporary position is not akin to situations where a claimant is offered non-temporary, but part-time, work that subsequently becomes unexpectedly unavailable; rather, it is more like quitting a full-time, non-temporary position in favor of a seasonal position of limited duration. The claimant in the former situation is eligible for benefits, Brennan, 504 A.2d at 433; the claimant in the latter situation is not. Luongo v. UCBR, 190 A.2d 344, 346 (Pa. Super. 1963) (holding that quitting a full-time position to work a seasonal position.

Claimant accepted the temporary position with Staffing Agency believing that, after the first position ended, there was a possibility of future assignments through Staffing Agency. The mere possibility that other assignments could become available “is insufficient to constitute good cause for voluntarily terminating one‟s employment.” Pennsylvania Power and Light, 351 A.2d at 699. To establish eligibility for UC benefits pursuant to Section 402(b) of the Law, the claimant must show that he acted with ordinary common sense and made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Center, 906 A.2d at 660.

We conclude that Claimant‟s actions here are imprudent where he quit his regular, non-temporary job in exchange for a temporary job of fixed duration. Thus, as we did in Pennsylvania Power and Light, we conclude that Claimant‟s actions do not “demonstrat[e] that [he acted] with ordinary common sense and prudence,” Id. at 699, or that he made a reasonable effort to preserve his employment.

Dissent - Just because a job is temporary does not mean that a claimant is not entitled to unemployment compensation. According to the Law, a claimant is eligible for unemployment compensation benefits provided he "earned no less than $50 for at least 16 weeks during the five calendar quarters preceding the first day of the claimant’s unemployment." Earnest v. UCBR, 30 A.3d 1249, 1254 (Pa. Cmwlth. 2011) (citing Section 404(c) of the Law, 43 P.S. §804(c)). This financial eligibility provision does not distinguish between permanent and temporary employment. I do not believe that an employee becomes ineligible for unemployment compensation simply because he leaves full-time employment for other work as employees are free to change jobs in order to, inter alia, reduce the total number of hours worked or change shifts. See Baldwin-Whitehall School District v. UCBR, 848 A.2d 1021 (Pa. Cmwlth. 2004). The permanent or temporary nature of the employment does not change the fact that Claimant was laid off through no fault of his own. Given the fact that employment is typically "at will," Claimant’s situation is no different than if he had accepted a "permanent" position with another employer but was laid off after only one month due to lack of work.

UC - employee v. indpt. contractor

Tobey-Karg Sales Agency v. Dept. of Labor and Industry - Cmwlth. Court - December 30, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/283CD10_12-30-11.pdf

Company petitioned for reassessment for past unpaid Unemployment Compensation (UC) contributions, interest, and penalties on wages not previously reported to the Department.

Sales reps held to be independent contractors rather than employees under Section 4(l)(2)(B) of the Unemployment Compensation Law (Law),1 43 P.S. § 753(l)(2)(B),

UC - appeal - email - timeliness - opportunity to rebut absence of evid. of receipt by UCBR

Bennett v. UCBR - Cmwlth. Court - December 16, 2011 (en banc, 6-1)

http://www.pacourts.us/OpPosting/Cwealth/out/2703CD10_12-16-11.pdf

The Court vacated the UCBR decision on timeliness of the appeal and remanded the case, directing the Board to consider the claimant's evidence on the issue, which the Board had previously ignored, holding that this was a capricious disregard of competent evidence.

Wright v. UCBR, ___ A.3d ___ (Pa. Cmwlth., filed December 16, 2011) (en banc, 5-2), established that the absence of an appeal document in the Board’s record creates, at best, an inference that the Board did not receive the document and, therefore, that it was not filed. In that situation, a claimant should be given an opportunity to establish, at a hearing before a referee, that he or she filed a timely appeal notwithstanding the absence of the appeal document in the Board’s record.

Here and in Wright (also filed today), the court held that the failure to consider the claimant's uncontradicted evidence on the issue of timeliness constituted a capricious disregard of the uncontradicted evidence at the hearing before the referee. In each case, that evidence included testimony and documents that showed that, though not in the Board’s record, the claimant transmitted the earlier appeal document to the Board

Like the claimant in Wright, here Claimant offered testimony that, if found credible and persuasive, would establish that he sent an appeal of the notice of determination to the Board by electronic means before the expiration of the appeal deadline.

Neither the Referee nor the Board addressed Claimant’s testimony or supporting documents in their decisions. Instead, like the Board in Wright, they both appear to have ignored the hearing record and, instead, based their decisions solely on what was (and was not) in the Board’s record prior to the hearing.

The court found this "particularly troubling", because the Board’s hearing notice expressly provided that purpose of the hearing was to take testimony on the issue of the timeliness of Claimant’s appeal. It found that Claimant’s testimony, if found credible and persuasive, and exhibits could support a finding that he filed a timely appeal by e-mail, notwithstanding the absence of that earlier e-mail appeal in the Board’s record. Accordingly, the Board capriciously disregarded record evidence.

The court rejected the Board argument that this case is controlled by Roman-Hutchinson v. UCBR, 972 A.2d 1286 (Pa. Cmwlth. 2009), since in that case, the Board at least considered the claimant’s evidence and made factual findings with respect to the claimant’s claim that, notwithstanding its absence from the Board’s record, the claimant filed an earlier, timely appeal by e-mail. Here, the Board and the Referee made no such findings. Claimant here, like the claimant in Wright, attempted to establish by evidence at a hearing that the Board did, in fact, receive the earlier filed appeal and received it before the appeal deadline. For these reasons, Roman-Hutchinson does not control this appeal.

The court vacated the Board’s decision and remanded the matter for the Board to consider the evidence of record put forth by Claimant to show that he filed a timely appeal by e-mail and to make appropriate and necessary factual findings.

admin. law - federal APA - arbitrary and capricious

http://www.supremecourt.gov/opinions/11pdf/10-694.pdf

key quote -

This case requires us to decide whether the BIA’s policy for applying a section of the immigration law is "arbitrary [or] capricious" under the Administrative Procedure Act(APA), 5 U. S. C. §706(2)(A). The scope of our reviewunder this standard is "narrow"; as we have often recognized, "a court is not to substitute its judgment for that of the agency." . . . . Agencies. . . 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 decision-making. 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.’" . . . .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—amatter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner. [emphasis added]

_______________________

SUPREME COURT OF THE UNITED STATES

Syllabus

JUDULANG

v

. HOLDER, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10–694. Argued October 12, 2011—Decided December 12, 2011

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, findingJudulang 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 comparablegrounds 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 inreasoned 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 underthis 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 thiscountry—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 anexclusion ground has nothing to do with whether a deportable alienwhose prior conviction falls within both grounds merits the ability tostay 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 priorconviction 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 anyfactors relevant to whether an alien should be deported. Instead, itturns 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 comparablegrounds 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 becauseit addresses only exclusion. Second, the history of the comparablegrounds rule does not work in the Government’s favor. The BIA repeatedly vacillated in its method for applying §212(c) to deportablealiens, settling on the current rule only in 2005. Third, the Government’s claim that the comparable-grounds rule saves time and moneyfalls 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 comparablegrounds 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.