In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2607
M ICHAEL F REDERICK,
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. A012-464-579
A RGUED F EBRUARY 23, 2010—D ECIDED M AY 3, 2011
Before B AUER, P OSNER, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Michael Frederick was born in
Germany in 1957 and came to the United States at age
four with his mother and sister. They were admitted
as lawful permanent residents, and Frederick has
remained in the United States since his admission in
1961. In 1990 he pleaded guilty in Illinois state court to
two counts of aggravated sexual abuse of a minor. The
2 No. 09-2607
charges involved two victims and were issued in
separate cases, and Frederick was sentenced to concur-
rent four-year prison terms in each case. He served
these sentences and was discharged from parole in 1993.
For a long time he suffered no immigration conse-
quences as a result of his convictions.
Fourteen years later, the Department of Homeland
Security issued a Notice to Appear charging that
Frederick was removable from the United States as an
alien convicted of an aggravated felony relating to
sexual abuse of a minor. See 8 U.S.C. § 1101(a)(43)(A).
Frederick applied for a statutory waiver of removal
under § 212(c) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(c). An immigration judge
found him ineligible for § 212(c) relief because the crime
that made him removable—an aggravated felony
involving sexual abuse of a minor—has no statutory
counterpart or comparable ground for inadmissibility
under § 212(a) of the INA. The Board of Immigration
Appeals dismissed Frederick’s appeal, and he peti-
tioned this court for review.
We deny the petition. We have previously held that an
aggravated felony involving sexual abuse of a minor has
no statutory counterpart to a ground of inadmissibility
under § 212(a) of the INA. See Zamora-Mallari v. Mukasey,
514 F.3d 679, 692-93 (7th Cir. 2008). The BIA prop-
erly concluded that under Zamora-Mallari, Frederick is
ineligible for § 212(c) relief. The “statutory counterpart”
rule for § 212(c) eligibility is codified in 8 C.F.R.
§ 1212.3(f)(5) and well-established in BIA and circuit
No. 09-2607 3
precedent. That Frederick was convicted of two crimes of
sexual abuse of a minor does not change the application
of the rule.
I. Background
In 1961 four-year-old Michael Frederick, a native and
citizen of Germany, immigrated to the United States with
his mother and sister and became a lawful permanent
resident. In 1989 he was charged in Christian County,
Illinois, with two counts of aggravated criminal sexual
abuse of a minor. One of the two victims was his step-
daughter. In 1990 Frederick pleaded guilty to both counts
and was sentenced to two four-year terms of imprison-
ment; the sentences were ordered to run concurrently.
He served about a year in prison, was paroled, and suc-
cessfully completed parole supervision in August 1993.
On October 15, 2007, DHS filed a Notice to Appear
charging Frederick with removability pursuant to INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien
convicted of an aggravated felony relating to the sexual
abuse of a minor. See INA § 101(a)(43)(A), 8 U.S.C.
§ 1101(a)(43)(A) (defining “aggravated felony” to in-
clude sexual abuse of a minor). Frederick contested
removability by denying that he had been convicted of
sexual abuse of a minor; he also filed an application
for relief under former § 212(c) of the INA—a provision
that permitted the Attorney General, in his discretion, to
“waive” inadmissibility.
An immigration judge found Frederick removable as
charged, denied his application for § 212(c) relief, and
4 No. 09-2607
ordered him removed to Germany. The judge first held
that DHS had established Frederick’s removability
under 8 U.S.C. § 1227(a)(2)(A)(iii) by clear and convincing
evidence—specifically, the two charging documents in
the criminal cases against him, his jury waiver, and the
state-court records of conviction for two counts of ag-
gravated criminal sexual abuse. Then, relying on the
BIA’s decision in Matter of Blake, 23 I. & N. Dec. 722 (B.I.A.
2005), and this court’s decision in Valere v. Gonzales,
473 F.3d 757 (7th Cir. 2007), the judge found Frederick
ineligible for § 212(c) relief because sexual abuse of a
minor has no comparable ground of inadmissibility
under § 212(a) of the INA.
Frederick appealed the immigration judge’s decision
to the BIA. The BIA dismissed the appeal, agreeing that
Frederick was ineligible for a § 212(c) waiver in light of
Blake and Zamora-Mallari v. Mukasey, 514 F.3d 679, both
of which held that an aggravated felony involving
sexual abuse of a minor has no statutory counterpart in
a ground of inadmissibility under § 212(a) of the INA.
The BIA also cited Zamora-Mallari for the proposition
that the regulation codifying the “statutory counterpart”
test did not establish a new rule and therefore was not
impermissibly retroactive. The BIA noted as well that the
immigration judge had properly “rejected a number of
other arguments presented [by Frederick], including
those relating to equal protection and due process.”
Finally, the BIA held that the statutory-counterpart rule
articulated in Blake did not violate I.N.S. v. St. Cyr, 533
U.S. 289 (2001). Frederick petitioned this court for
review challenging the BIA’s determination that he is
ineligible for § 212(c) relief.
No. 09-2607 5
II. Discussion
We have previously described the lengthy and complex
history of former § 212(c) of the INA, see Zamora-Mallari,
514 F.3d at 683-89; Valere, 473 F.3d at 759-61, and repeat
that history only as necessary to decide this case. Until
1996 the Attorney General had discretion to readmit
resident aliens who traveled abroad and upon reentry
were found to be inadmissible under one of the grounds
of inadmissibility contained in INA § 212(a), 8 U.S.C.
§ 1182(a). This discretionary authority to waive inad-
missibility was conferred by the former § 212(c) of the
INA, 8 U.S.C. § 1182(c) (1994), which by its terms
applied only to exclusion proceedings—that is, to cases
in which resident aliens traveled abroad and were
excludable upon reentry. However, § 212(c) has been
interpreted to apply to removal proceedings as well—
provided the removable alien is similarly situated to
a returning, excludable alien. See Matter of Silva, 16 I. & N.
Dec. 26, 30 (1976) (adopting the standard of Francis v.
I.N.S., 532 F.2d 268 (2d Cir. 1976)); Zamora-Mallari, 514
F.3d at 684-85; Valere, 473 F.3d at 759-60.1 This expansion
of § 212(c) eligibility flowed from the Second Circuit’s
1
Before 1996 the INA contained a separate provision for
waiver of deportation (now removal), see INA § 244, 8 U.S.C.
§ 1254(a)(1) & (2) (repealed 1996), but the requirements of a
§ 244 waiver were more stringent than those of a § 212(c)
waiver. Therefore, deportable aliens found a § 212(c) waiver
of inadmissibility to be a more hospitable route to relief than a
§ 244 waiver of deportation. See Zamora-Mallari v. Mukasey,
514 F.3d 679, 684 (7th Cir. 2008).
6 No. 09-2607
holding in Francis that there is “no rational basis for
making § 212(c) relief available only to inadmissible
aliens seeking reentry and not to similarly situated
deportable aliens who had not left the country.” Valere,
473 F.3d at 760 (summarizing the holding in Francis).
After the Second Circuit’s equal-protection ruling in
Francis, a removable alien is eligible for a § 212(c) waiver
if the ground for removability has a statutory counter-
part or comparable ground of inadmissibility under
§ 212(a). Zamora-Mallari, 514 F.3d at 685-86; Valere, 473
F.3d at 760; Leal-Rodriguez v. I.N.S., 990 F.2d 939, 949
(7th Cir. 1993). Conversely, aliens removable on a
ground for which there is no comparable ground of
inadmissibility are not similarly situated to inadmis-
sible reentering aliens and therefore are not eligible for
§ 212(c) relief. This has come to be known as the “statu-
tory counterpart” or the “comparable ground” rule.
In 1996 Congress repealed § 212(c) altogether, replacing
it with the narrower 8 U.S.C. § 1229b, which permits the
Attorney General to cancel removal for certain aliens,
but excludes from consideration those who, like Frederick,
have committed aggravated felonies. Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.
L. No. 104-208, 110 Stat. 3009-594. 2 The Supreme Court
2
Before IIRIRA repealed § 212(c) altogether in 1996, Congress
had excluded from that section’s purview aggravated felons
who had served five or more years in prison, see Immigration
Act of 1990, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052,
and later eliminated § 212(c) waivers for all aggravated
(continued...)
No. 09-2607 7
subsequently held in I.N.S. v. St. Cyr that the repeal of
former § 212(c) could not be retroactively applied to
aliens who pleaded guilty prior to IIRIRA’s effective date.
533 U.S. at 326 (holding that Ҥ 212(c) relief remains
available for aliens . . . whose convictions were obtained
through plea agreements and who, notwithstanding
those convictions, would have been eligible for § 212(c)
relief at the time of their plea under the law then in ef-
fect”).
In 2004 DHS implemented St. Cyr and codified the
judicially created statutory-counterpart rule by promul-
gating 8 C.F.R. § 1212.3(f)(5). Section 1212.3(f)(5) pro-
vides that § 212(c) relief is available to lawful permanent-
resident aliens who pleaded guilty before § 212(c)
was repealed—but only if they satisfy the statutory-coun-
terpart test. See 8 C.F.R. § 1212.3(f)(5) (application for
§ 212(c) relief “shall be denied” if the alien “is deportable
under former section 241 of the Act or removable under
section 237 of the Act on a ground which does not have a
statutory counterpart in section 212 of the Act” (emphasis
2
(...continued)
felons, see Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277. See also
Zamora-Mallari, 514 F.3d at 687 (describing amendments to
former § 212(c)). IIRIRA also expanded the definition of aggra-
vated felony to include sexual abuse of a minor and explicitly
made that amendment retroactive. See IIRIRA § 321, 8 U.S.C.
§ 1101(a)(43); see also Zamora-Mallari, 514 F.3d at 690 (up-
holding the retroactivity of IIRIRA’s amendment to the defini-
tion of aggravated felony).
8 No. 09-2607
added)). In other words, the regulation returned the
law regarding § 212(c) eligibility to the status quo ante.
In 2005 the BIA issued its decision in Blake, 23 I. & N.
Dec. 722, which applied the statutory-counterpart test
to an alien who, like Frederick, was ordered removed for
having been convicted of an aggravated felony involving
sexual abuse of a minor. The BIA held that “the ‘sexual
abuse of a minor’ category in the aggravated felony
definition does not have a ‘statutory counterpart’ in the
grounds of inadmissibility” under § 212(a). Id. at 724.
Particularly relevant here, the BIA specifically rejected
the argument that an aggravated felony involving
sexual abuse of a minor is sufficiently comparable to
a crime of moral turpitude, a statutory ground for inad-
missibility in § 212(a). Id. at 728. The BIA explained that
“the moral turpitude ground of exclusion addresses a
distinctly different and much broader category of offenses
than the aggravated felony sexual abuse of a minor
charge.” Id. The proper inquiry turned on whether Con-
gress had used “similar language to describe sub-
stantially equivalent categories of offenses.” Id. Although
the crime of sexual abuse of a minor entails moral turpi-
tude, the two categories of crimes were not substantially
equivalent and thus were not statutory counterparts
for purposes of extending § 212(c) relief. Id.
Cases from this circuit have agreed with and adopted
the BIA’s holding in Blake that aliens who are removable
for sexually abusing a minor are not eligible for § 212(c)
relief because that offense has no comparable ground
of inadmissibility in § 212(a). See Zamora-Mallari, 514
No. 09-2607 9
F.3d at 692-93; Valere, 473 F.3d at 761-62. We are joined in
this approach to the statutory-counterpart rule by the
majority of circuits to have considered the issue. See De la
Rosa v. U.S. Att’y Gen., 579 F.3d 1327, 1337 (11th Cir.
2009), cert. denied, 130 S. Ct. 3272 (2010); Koussan v. Holder,
556 F.3d 403, 412-14 (6th Cir. 2009); Vue v. Gonzales, 496
F.3d 858, 861 (8th Cir. 2007); Abebe v. Gonzales, 493 F.3d
1092, 1104 (9th Cir. 2007); Dalombo Fontes v. Gonzales, 483
F.3d 115 (1st Cir. 2007); Vo v. Gonzales, 482 F.3d 363, 368-69
(5th Cir. 2007); Caroleo v. Gonzales, 476 F.3d 158, 167-68 (3d
Cir. 2007). Moreover, in applying the statutory-counterpart
test, we look to the actual charge of removal, not what
DHS could have charged as a basis for removal. Zamora-
Mallari, 514 F.3d at 692; see id. (“[I]f courts were to look
beyond the charged grounds of deportation to the under-
lying criminal offense to determine whether the criminal
offense could have been treated as a crime of moral turpi-
tude, that would greatly expand the role Congress as-
signed the judiciary in immigration cases.”). Only the
Second Circuit takes a different approach.3 The Supreme
3
In Zamora-Mallari, 514 F.3d at 692, we declined to follow
the Second Circuit’s decision in Blake v. Carbone, 489 F.3d 88 (2d
Cir. 2007). The Second Circuit’s decision in Blake adopted an
offense-based approach to the statutory-counterpart inquiry.
Instead of comparing the actual ground of removal to a ground
of inadmissibility, Blake requires that the BIA consider whether
a “particular aggravated felony offense could form the basis
of exclusion under § 212(a) as a crime of moral turpitude.” Id. at
104 (emphasis added). The BIA, however, generally continues
(continued...)
10 No. 09-2607
Court has just granted certiorari to resolve the lopsided
circuit split. Judulang v. Holder, 249 F. App’x 499 (9th Cir.
2007), cert. granted, 79 U.S.L.W. 3344 (U.S. Apr. 18, 2011)
(No. 10-694).
With this background in place, we now turn to Freder-
ick’s claims, noting first that while we ordinarily would
lack jurisdiction to review an order of removal against
an alien who is removable by reason of having committed
3
(...continued)
to adhere to its prior understanding of the statutory-counter-
part rule notwithstanding the Second Circuit’s decision in Blake.
See Matter of Moreno-Escobosa, 25 I. & N. Dec. 114, 117 (B.I.A.
2009) (“It is important to note that nothing in this decision
is intended to cast doubt on our prior holdings where we
articulated the ‘statutory counterpart’ rule that an alien
seeking to waive a deportation ground must establish that
there is a comparable ground of inadmissibility in section 212(a)
of the Act.”). We decline Frederick’s invitation to replace
our approach to the statutory-counterpart test with the cate-
gorical approach used in the cancellation-of-removal context
under 8 U.S.C. § 1229b. Pursuant to § 1229b, the Attorney
General may not cancel the removal of an alien who has
been convicted of a crime of moral turpitude. 8 U.S.C.
§ 1229b(b)(1)(C). Whether a particular offense qualifies as a
crime of moral turpitude for purposes of ineligibility for
cancellation of removal is determined by the elements of the
statute under which the alien was convicted. See Padilla v.
Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005). This categorical
approach is similar to the Second Circuit’s reasoning in
Blake because the starting point is the underlying offense,
regardless of the actual charged ground of removal.
No. 09-2607 11
an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), we retain
jurisdiction to review constitutional claims and questions
of law, id. § 1252(a)(2)(D). To the extent Frederick raises
legal and constitutional claims in his petition for review,
we review them de novo. Klementanovsky v. Gonzales,
501 F.3d 788, 791 (7th Cir. 2007).
Frederick first argues that he is eligible for a § 212(c)
waiver because DHS could have charged him with
removal under 8 U.S.C. § 1227(a)(2)(A)(ii) for having
been convicted of “two or more crimes involving moral
turpitude, not arising out of a single scheme of criminal
misconduct,” instead of charging him with removability
based on a conviction for an aggravated felony involving
sexual abuse of a minor. He maintains that this alterna-
tive ground makes him eligible for a § 212(c) waiver
because it satisfies the statutory-counterpart rule. He
also claims he had an expectation of a § 212(c) waiver at
the time he entered his guilty pleas and thus falls under
the purview of St. Cyr.
We disagree. As we have explained, under our caselaw,
what DHS could have charged as grounds for removal is
irrelevant. Here, Frederick’s Notice of Removal charged
him with having committed an aggravated felony in-
volving the sexual abuse of a minor. Under established
circuit precedent, sexual abuse of a minor has no compara-
ble ground of inadmissibility in § 212(a), making Frederick
ineligible for § 212(c) relief. Zamora-Mallari, 514 F.3d at
691. That Frederick committed two acts of sexual abuse
of a minor instead of one does not change this result.
12 No. 09-2607
We also disagree with Frederick’s claim that he is
entitled to § 212(c) relief under St. Cyr. The Supreme
Court held in St. Cyr that Ҥ 212(c) relief remains available
for aliens . . . whose convictions were obtained through
plea agreements and who, notwithstanding those con-
victions, would have been eligible for § 212(c) relief at
the time of their plea under the law then in effect.” 533
U.S. at 326. But Frederick was not eligible for § 212(c)
relief at the time of his guilty pleas because the crime of
sexual abuse of a minor has no comparable ground of
inadmissibility in § 212(a). Where there is no comparable
ground of inadmissibility, St. Cyr is simply inapplicable.
Zamora-Mallari, 514 F.3d at 691. We need not address
any of Frederick’s reliance-based arguments because he
was never eligible for a § 212(c) waiver in the first place.
Frederick also makes several constitutional arguments,
most of which are foreclosed by circuit precedent. He
contends that the statutory-counterpart rule violates his
right to equal protection, but we have twice rejected this
argument. See id. at 691-92; Valere, 473 F.3d at 762. We
noted in Valere that the statutory-counterpart rule can
hardly violate equal protection because it is itself the
test for an equal-protection violation:
[T]he requirement of a comparable ground of exclu-
sion in § 212(a) . . . is what makes a removable,
nondeparting alien similarly situated to an admissible
alien in the first place. If the removable alien’s crime
of conviction is not substantially equivalent to a
ground of inadmissibility under § 212(a), then the
removable alien is not similarly situated for purposes
No. 09-2607 13
of claiming an equal protection right to apply for
§ 212(c) relief.
Valere, 473 F.3d at 762.
Frederick fine-tunes the argument a bit by contending
that DHS violated his equal-protection rights when it
exercised its discretion to charge him with removability
for an aggravated felony involving sexual abuse of a
minor rather than an available alternative charge of
removability for having committed two crimes of
moral turpitude—a charging decision that rendered him
ineligible for § 212(c) relief. To the extent Frederick is
asking us to review DHS’s discretionary determination
of what to charge as the basis for removal, we have no
jurisdiction over that question. 8 U.S.C. § 1252(g) (“[N]o
court shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the decision or
action by the Attorney General to commence pro-
ceedings, adjudicate cases, or execute removal orders
against any alien under this chapter.”). As charged,
Frederick is not similarly situated to a returning alien
who is inadmissible under a statutory counterpart in
§ 212(a), and therefore he has no equal-protection-
based entitlement to seek § 212(c) relief. See Valere, 473
F.3d at 762.
Finally, we reject Frederick’s due-process challenge to
the BIA’s removal order. To the extent this claim is dif-
ferent from his equal-protection argument, it appears to
rest on a contention that the BIA violated due process
by incorrectly applying its decision in Blake and finding
him ineligible for a § 212(c) waiver. Frederick overlooks
14 No. 09-2607
the fact that he has no due-process right to a § 212(c)
waiver; § 212(c) relief from removal is in the discretion of
the Attorney General. See United States v. Santiago-Ochoa,
447 F.3d 1015, 1020 (7th Cir. 2006) (holding that aliens
in removal proceedings have no due-process right to be
considered for discretionary relief); see also Nguyen v.
Dist. Dir., Bureau of Immigration & Customs Enforcement,
400 F.3d 255, 259 (5th Cir. 2005) (holding that “neither
relief from removal under discretionary waiver nor
eligibility for such discretionary relief is entitled to due
process protection”).4
P ETITION D ENIED.
4
Frederick also claims that his due-process rights were
violated when the immigration judge and the BIA did not
consider in full all of his constitutional objections to the
statutory-counterpart test. Due process in immigration pro-
ceedings only requires that the immigration judge give Freder-
ick a “meaningful opportunity to be heard,” and nothing in
the record indicates that he was deprived of that right.
Barradas v. Holder, 582 F.3d 754, 767 (7th Cir. 2009). The BIA
specifically noted that the immigration judge “rejected a
number of other arguments presented [by Frederick], in-
cluding those relating to equal protection and due process.”
5-3-11