In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3607
A UDON M ANCILLAS-R UIZ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A091-848-467
A RGUED JUNE 2, 2010—D ECIDED A UGUST 11, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Audon Mancillas-Ruiz, a lawful
permanent resident, was convicted in California state
court of assault with a deadly weapon and second-
degree robbery. The government later charged that he
was removable because the state offenses for which he
was convicted involved both crimes of violence and
2 No. 09-3607
crimes involving moral turpitude. The immigration judge
(“IJ”) ordered Mancillas-Ruiz removed to Mexico. The
judge also found that Mancillas-Ruiz was ineligible to
apply for a waiver of removal under former § 212(c) of the
Immigration and Nationality Act (“INA”), because the
aggravated felony crime of violence category under
which the government sought his removal has no statu-
tory counterpart under INA § 212(a). The Board of Im-
migration Appeals (“BIA”) affirmed and this petition
followed. We now deny Mancillas-Ruiz’s petition for
review.
I. B ACKGROUND
Audon Mancillas-Ruiz is a 43-year-old native and citizen
of Mexico. He illegally entered the United States in
1987; however, he was adjusted to lawful permanent
resident status in December, 1990. In early 1994, he pled
guilty to two counts of felony assault with a deadly
weapon, in violation of California Penal Code (“CPC”)
§ 245(a)(1), and to robbery in the second degree, in viola-
tion of CPC § 211. He was sentenced to 4 years’ imprison-
ment for felony assault, and to 3 years’ imprisonment
for robbery. He served 28 months in prison.
On June 21, 2005, the Department of Homeland Security
(“DHS”) issued Mancillas-Ruiz a Notice to Appear.
Based on his California convictions, the notice charged
that Mancillas-Ruiz was subject to removal from the
United States under INA § 237(a)(2)(A)(iii); 8 U.S.C.
§ 1227(a)(2)(A)(iii), as an alien who has been con-
victed of a crime that qualified as an aggravated
No. 09-3607 3
felony, specifically a crime of violence. The notice also
charged that Mancillas-Ruiz was removable under INA
§ 237(a)(2)(A)(ii); 8 U.S.C. § 1227(a)(2)(A)(ii), as an
alien who has been convicted of two or more crimes
involving moral turpitude.
At a removal hearing in 2006, Mancillas-Ruiz conceded
that he was subject to removal because his crimes consti-
tuted an aggravated felony crime of violence, but he
denied that he could be removed for having been con-
victed of a crime of moral turpitude. He argued that his
assault conviction did not constitute a crime of moral
turpitude. The IJ, however, found that in the immigra-
tion context, both of Mancillas-Ruiz’s convictions were
for crimes involving moral turpitude.
Mancillas-Ruiz then requested leave to file an applica-
tion for a waiver of removal under former INA § 212(c).
Mancillas-Ruiz and the government both submitted
briefs to the IJ addressing the issue of whether Mancillas-
Ruiz was eligible for such a waiver. Mancillas-Ruiz
argued that because the convictions that led to his ag-
gravated felony charge were also classified as crimes
involving moral turpitude, and a statutory counterpart
for a crime involving moral turpitude exists under INA
§ 212(a), he should be allowed to apply for a § 212(c)
waiver.
On September 23, 2008, the IJ determined that under the
BIA’s In re Brieva-Perez decision, 23 I. & N. Dec. 766 (BIA
2005), and our decision in Zamora-Mallari v. Mukasey, 514
F.3d 679 (7th Cir. 2008), Mancillas-Ruiz was ineligible
for a § 212(c) waiver of removal. Specifically, the IJ
4 No. 09-3607
opined that these cases establish that Mancillas-Ruiz was
ineligible for a waiver because the aggravated felony
category under which he was charged—crimes of
violence—has no statutory counterpart in the grounds
of inadmissibility under § 212(a). Accordingly, the IJ
ordered Mancillas-Ruiz removed to Mexico.
Mancillas-Ruiz appealed to the BIA. On September 23,
2009, the BIA dismissed Mancillas-Ruiz’s appeal, finding
that he was precluded from obtaining a § 212(c) waiver
because his criminal conduct constituted an aggravated
felony crime of violence. In support of its decision, the
BIA relied on the same case law followed by the IJ, along
with other immigration cases. (citing Valere v. Gonzales,
473 F.3d 757 (7th Cir. 2007) and Vue v. Gonzales, 496 F.3d
858 (8th Cir. 2007)). This petition for review followed.
II. A NALYSIS
In his petition for review, Mancillas-Ruiz argues that
the BIA erred as a matter of law by finding that he was
ineligible for a § 212(c) waiver. Mancillas-Ruiz does not
dispute that his crimes of felony assault and robbery in
the second degree are crimes of moral turpitude in the
immigration context. Instead, he argues that although he
is subject to removal for having been convicted of an
aggravated felony crime of violence, he is still eligible
to apply for § 212(c) relief because such relief was
available prior to the statute’s repeal date in 1996 for
aliens convicted of crimes involving moral turpitude, as
listed under § 212(a). He contends that the BIA therefore
No. 09-3607 5
improperly applied the statutory counterpart rule to
deny him a waiver because the government charged him
with having committed both an aggravated felony and
a crime involving moral turpitude for the same crim-
inal conduct.
We generally lack jurisdiction to review a final order
of removal when a petitioner is convicted of an ag-
gravated felony. See INA § 242 (a)(2)(C); 8 U.S.C.
§ 1252(a)(2)(C); Zamora-Mallari, 514 F.3d at 693-94. But
when the petitioner raises questions of law and consti-
tutional claims, our jurisdiction remains intact. See 8
U.S.C. § 1252(a)(2)(D), as amended by REAL ID Act
§ 106(a)(1)(A)(iii); Estrada-Ramos v. Holder, No. 09-3611,
2010 WL 2605859, at *1 (7th Cir. July 1, 2010). Because
Mancillas-Ruiz raises a question of law regarding the
BIA’s interpretation of its own precedent as well our
precedent, we will proceed. Constitutional questions
and questions of law are subject to de novo review; how-
ever, we give deference to the BIA’s reasonable inter-
pretation of the statute and underlying regulation.
Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir. 2005).
Section 212(a) made several classes of aliens excludable
(now termed inadmissible) from the United States, in-
cluding those convicted of crimes involving moral turpi-
tude. See INA § 212(a); 8 U.S.C. § 1182(a). However,
under former § 212(c), a permanent resident alien con-
victed for a crime that would have led to exclusion
under § 212(a) could apply to the Attorney General for
discretionary relief from an order of deportation (now
termed removal). INA § 212(c); 8 U.S.C. § 1182(c); Canto v.
6 No. 09-3607
Holder, 593 F.3d 638, 641-42 (7th Cir. 2010). The BIA
adopted a “comparable grounds” analysis to determine
if an alien that was subject to deportation was similarly
situated to an alien subject to exclusion proceedings, and
thereby eligible for a waiver. Zamora-Mallari, 514 F.3d
at 685. Under certain circumstances, this included aliens
convicted of crimes categorized as aggravated felonies.
Canto, 593 F.3d at 642; Zamora-Mallari, 514 F.3d at 685-86.
In 1996, however, Congress repealed § 212(c) and elimi-
nated relief altogether for aliens convicted of aggravated
felonies. Antiterrorism and Effective Death Penalty Act,
Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996);
Illegal Immigration Reform and Immigrant Responsi-
bility Act, Pub. L. No. 104-208, 110 Stat. 3009-597 (1996).
Nevertheless, an alien such as Mancillas-Ruiz may still
be eligible for a waiver if the alien was convicted before
the date of § 212(c)’s repeal. See 8 C.F.R. § 1212.3(f)(4)-(5);
INS v. St. Cyr, 533 U.S. 289, 326 (2001).
Because Mancillas-Ruiz was convicted in 1994, the BIA
relied on its In re Brieva-Perez decision to determine
whether Mancillas-Ruiz was otherwise eligible for a
waiver. In Brieva-Perez, the BIA concluded that an alien
who was removable on the basis of his crime being a crime
of violence was ineligible for § 212(c) relief because the
aggravated felony ground of removal with which he
was charged had no statutory counterpart in § 212(a). 23
I. & N. Dec. at 770-73. The BIA reasoned that although
there does not need to be perfect symmetry in order to
find that a ground of removal has a statutory counter-
part in § 212(a), “a closer match” than the “incidental
No. 09-3607 7
overlap” between a crime of violence aggravated felony
and a crime involving moral turpitude is required. Id. at
773. Based on this reasoning, the BIA held Mancillas-
Ruiz ineligible for § 212(c) relief. Id.
Nevertheless, Mancillas-Ruiz argues that although he
is ineligible to apply for relief based on his crime of
violence aggravated felony status, he should be allowed
to apply on the alternative basis that the government also
charged that his crimes were crimes involving moral
turpitude. Mancillas-Ruiz contends that because he
was charged with not one, but two grounds for removal
for the same offense, his case is an “exception” to our
precedent and use of the statutory counterpart analysis.
In essence, Mancillas-Ruiz argues that the IJ or BIA
need not engage in the statutory counterpart analysis at
all because it can determine that his charge of a crime
involving moral turpitude independently provides
relief under § 212(c).
We recently addressed this same argument in De Leon
v. Holder, 334 F. App’x 28 (7th Cir. 2009) (nonprecedential
order). Although we recognize that De Leon does not
constitute precedent, we find the reasoning persuasive
and directly on-point. We therefore apply the same rea-
soning here.
In De Leon, the petitioner was convicted of second-
degree sexual assault of a child in violation of § 948.02(2)
of the Wisconsin Statutes. On that basis, he was deter-
mined by the DHS to be subject to removal for having
committed a crime of violence aggravated felony, specifi-
cally sexual abuse of a minor. He was also charged as
8 No. 09-3607
removable for having committed a crime involving
moral turpitude for the same offense. Id. at 28-29.
De Leon argued that despite his charge of having com-
mitted a crime of violence, he should still be eligible for
a § 212(c) waiver based on his separate charge of
having committed a crime involving moral turpitude. Id.
at 29.
We observed, however, that we have twice upheld the
BIA’s reasoning—in Zamora-Mallari, 514 F.3d at 691-92,
and in Valere, 473 F.3d at 761-62. De Leon, 334 F. App’x
at 29-30. In denying De Leon’s petition, we explained
that so long as the petitioner is removable on a ground
that lacks a statutory counterpart in § 212(a), it is irrele-
vant if the petitioner was also charged on another
ground that has a statutory counterpart. Id. at 30.
Mancillas-Ruiz’s argument fails from the same defect;
in fact, to hold otherwise would actually provide a
greater benefit to those aliens whose crimes could be
considered both crimes of violence and crimes involving
moral turpitude. Whether Mancillas-Ruiz might be
eligible for a waiver based on his separate charge for
crimes involving moral turpitude matters little because
that waiver would only apply toward that ground for
removal; it would not apply toward his crime of
violence ground. Therefore, once the BIA found that
Mancillas-Ruiz crime was properly identified as an ag-
gravated felony crime of violence, the only inquiry left
was to determine if a substantially equivalent counter-
part existed in § 212(a). As previously discussed, there
No. 09-3607 9
is none, and we find no reason to depart from our prece-
dent today. Our holding also finds support in the First,
Third, and Eighth Circuits, which have all held that it
is irrelevant whether an alien’s criminal conduct that is
categorized as an aggravated felony crime of violence
may also be classified as a crime involving moral turpi-
tude. See Vue, 496 F.3d at 863; Caroleo v. Gonzales, 476
F.3d 158, 168 (3d Cir. 2007); Kim v. Gonzales, 468 F.3d 58,
62 (1st Cir. 2006).
We also note that just because the government charged
both grounds of removability does not mean that
Congress suddenly intended a crime of violence to
have a statutory counterpart in § 212(a) or that we
should usurp its role in defining exceptions today. Any
such determination is better suited for the legislative
branch of government. Accordingly, we find Mancillas-
Ruiz’s argument without merit.
Finally, although Mancillas-Ruiz does not provide
anything of the sort in his Statement of the Issues nor
his Summary of the Argument, he makes a last-ditch
argument in the body of his appellate brief that his equal
protection rights were violated by the BIA’s dismissal of
his appeal because he has a constitutionally protected
interest in obtaining a waiver under § 212(c). We see
no merit in such an argument because relief under
§ 212(c) is purely discretionary, Dashto v. INS, 59 F.3d
697, 699 (7th Cir. 1995), and there is no protectable in-
terest in discretionary relief, United States v. Arita-Campos,
607 F.3d 487, 493 (7th Cir. 2010). Even if he was able to
establish that an equal protection right is involved, he
10 No. 09-3607
only has a constitutionally protected interest if his crime
is one that has a statutory counterpart, which a crime
of violence does not. See Valere, 473 F.3d at 762.
III. C ONCLUSION
For the foregoing reasons, the petition for review
is D ENIED.
8-11-10