Abebe v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

YEWHALASHET ABEBE, 
Petitioner, No. 05-76201
v.
 Agency No.
A26-810-941
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
December 4, 2006—San Francisco, California

Filed July 9, 2007

Before: Dorothy W. Nelson, Robert E. Cowen,* and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge D.W. Nelson;
Concurrence by Judge Berzon

*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.

8099
8102 ABEBE v. GONZALES

COUNSEL

Robert B. Jobe and Fatma Marouf, Law Office of Robert B.
Jobe, San Francisco, California, (briefed), Zachary Nightin-
gale, Van Der Hout, Brigagliano & Nightingale, LLP, San
Francisco, California, (argued), for the petitioner.

Song E. Park (briefed) and John C. Cunningham (argued),
United States Department of Justice, Office of Immigration
Litigation, Washington, D.C., for the respondent.

Zachary Nightingale and Avantika Shastri, Van Der Hout,
Brigagliano & Nightingale, LLP, San Francisco, California,
filed a brief for the Immigration Law Clinic of the School of
Law at the University of California, Davis, the Immigrant
Legal Resource Center, and the National Immigration Project
of the National Lawyers Guild as amici curiae in support of
petitioner.

OPINION

D.W. NELSON, Senior Circuit Judge:

Yewhalashet Abebe (“Abebe” or “Petitioner”) seeks review
 ABEBE v. GONZALES 8103
of a decision by the Board of Immigration Appeals (“BIA” or
“Board”) finding him ineligible to apply for discretionary
relief from removal under former section 212(c) of the Immi-
gration and Nationality Act (“INA”), 8 U.S.C. § 1182(c)
(Supp. IV 1992) (repealed 1996),1 because the ground of
deportability charged by the government—conviction of an
“aggravated felony” within the meaning of INA
§ 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), which defines
the term to include “sexual abuse of a minor” crimes—lacks
a comparable ground of inadmissibility under INA § 212(a),
8 U.S.C. § 1182(a). Abebe further challenges the BIA’s
refusal to review a claim raised in connection with his appli-
cation for withholding of removal under INA § 241(b), 8
U.S.C. § 1231(b). We perceive no error with respect to the
availability of § 212(c) relief and deny the petition on that
issue. In a separate memorandum disposition filed concur-
rently herewith, we remand to the Board for an initial deter-
mination on the merits of the withholding claim.

I. BACKGROUND2

Petitioner is a citizen of Ethiopia who entered the United
States as a refugee and became a lawful permanent resident
(“LPR”) in 1984. In 1992, pursuant to a guilty plea, Abebe
was convicted of committing “lewd/lascivious conduct upon
a child” in violation of California Penal Code § 288(a). He
was sentenced to one year in jail and three years of supervised
probation. In addition, Abebe was required to register as a sex
offender and to provide registration updates to local police
within five days of his birthday for each year he remained in
California. After serving his sentence, Petitioner’s only other
contact with the criminal justice system occurred in 2001
1
Unless otherwise indicated, statutory references are to the INA. Paral-
lel citations to the United States Code are provided occasionally.
2
In this opinion, we recount only those facts relevant to the denial of
§ 212(c) relief, and we omit facts pertinent to the withholding of removal
claim.
8104 ABEBE v. GONZALES
when he failed to renew his sex offender registration by the
statutory deadline. He was convicted of an offense under Cali-
fornia Penal Code § 290(g)(2) and sentenced to 120 days in
jail.

In 2005, the government commenced removal proceedings
asserting that Abebe was deportable on the independent
grounds that he (1) had been convicted of two crimes involv-
ing moral turpitude (“CIMT”), INA § 237(a)(2)(A)(ii), 8
U.S.C. § 1227(a)(2)(A)(ii); and (2) had been convicted of an
aggravated felony, INA § 237(a)(2)(A)(iii)—namely, the
1992 “sexual abuse of a minor” conviction. The IJ dismissed
the first charge after the government conceded that Abebe’s
failure to update his sex offender registration was not a
CIMT. The second charge was sustained. Abebe does not
contest the finding of removability.

Petitioner sought several forms of relief from removal
including a discretionary waiver of inadmissibility authorized
by former § 212(c). Although § 212(c) was repealed in 1996,
because Abebe’s 1992 conviction was obtained through a
guilty plea, if he “would have been eligible for § 212(c) relief
at the time of [his] plea under the law then in effect,” he
remained so during the removal proceedings. INS v. St. Cyr,
533 U.S. 289, 326 (2001) (holding that Congress did not
unmistakably indicate an intention to apply the repeal of
§ 212(c) retroactively to aliens who may have relied on its
availability in deciding whether to forgo their right to a crimi-
nal trial). At the time of Abebe’s plea, § 212(c) stated that

[a]liens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are
returning to a lawful unrelinquished domicile of
seven consecutive years, may be admitted in the dis-
cretion of the Attorney General without regard to the
provisions of subsection (a) [(establishing classes of
aliens to be excluded from admission to the United
 ABEBE v. GONZALES 8105
States)]. . . . The first sentence of this subsection
shall not apply to an alien who has been convicted
of one or more aggravated felonies and has served
for such felony or felonies a term of imprisonment
of at least 5 years.

8 U.S.C. § 1182(c) (Supp. IV 1992).

On the face of the statute, § 212(c) does not apply to
Abebe’s case because he is not returning from a temporary
overseas journey and is not facing exclusion from admission
to the United States under § 212(a) but, instead, is being
deported from the interior of the country on the authority of
§ 237(a). However, as described below, through a decades-
long series of administrative and judicial decisions, the Attor-
ney General’s statutory authority to grant relief from exclu-
sion has been interpreted to carry with it a similar authority
to grant relief from deportation under certain circumstances.
Even so, the IJ held that there was no authority to grant relief
to Abebe because the ground of deportability sustained—
conviction of an aggravated felony/sexual abuse of a minor
crime—lacked a comparable charge of inadmissibility under
§ 212(a).

Relying on Matter of Blake, 23 I. & N. Dec. 722 (BIA
2005), and a recently promulgated regulation, 8 C.F.R.
§ 1212.3(f)(5), the BIA affirmed. In his petition for review,
Abebe argues that the Board’s interpretation of former
§ 212(c) must be rejected because: (1) it is invalid as a matter
of statutory construction; (2) it violates principles of equal
protection; and (3) it is impermissibly retroactive as applied
to him.3 We disagree. In so doing, we join the First, Third,
3
Abebe also takes issue with Matter of Brieva-Perez, 23 I. & N. Dec.
766 (BIA 2005), decided shortly after Blake. In Brieva-Perez, the BIA
applied the comparable grounds test to deny § 212(c) relief to an alien
found deportable due to a conviction characterized as a “crime of vio-
lence” and hence an aggravated felony under INA § 101(a)(43)(F). The
attacks leveled against Brieva-Perez are identical to the Blake challenges
and are rejected for the same reasons.
8106 ABEBE v. GONZALES
Fifth, and Seventh Circuits, Dalombo Fontes v. Gonzales, 483
F.3d 115 (1st Cir. 2007); Kim v. Gonzales, 468 F.3d 58 (1st
Cir. 2006); Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007);
Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007);
Avilez-Granados v. Gonzales, 481 F.3d 869 (5th Cir. 2007);
Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007); Valere v. Gon-
zales, 473 F.3d 757 (7th Cir. 2007); see also Rubio v. U.S.
Atty. Gen., 182 Fed. Appx. 925 (11th Cir. 2006) (unpub-
lished), and part ways with the Second, Blake v. Carbone, ___
F.3d ___, No 05-2988-AG(L), 2007 WL 1574760 (2d Cir.
June 1, 2007).

II. STATUTORY BACKGROUND—HISTORY OF
§ 212(c)

The immigration laws have long distinguished between the
exclusion of non-citizens seeking to enter the United States
and the deportation of those who have already crossed our
borders. See Immigration Act of 1917 (“1917 Act”) §§ 3, 19,
39 Stat. 875, 889 (defining classes of excludable4 and deport-
able aliens respectively); Immigration and Nationality Act of
1952 (“1952 Act”) §§ 212, 241, 66 Stat. 182, 204 (same).5
There is no question that Congress has the power to establish
different standards for admission into the United States and
4
The terms “excludable” and “inadmissible” are synonymous and will
be used interchangeably in this opinion.
5
In addition to the substantive differences, prior to 1997, the immigra-
tion laws provided for separate exclusion and deportation proceedings.
The procedural dissimilarities were largely eliminated by the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
Pub. L. No. 104-208, Div. C., Title III, Subtitle A, 110 Stat. 3009-575 et
seq., and replaced by a unified “removal” process under INA § 240, 8
U.S.C. § 1229a. The homogenization is not complete, however, and cer-
tain procedural niceties continue to depend on whether an alien is seeking
admission or is charged with deportability. See, e.g., INA § 240(c), 8
U.S.C. § 1229a(c) (describing differences in burden of proof). The sub-
stantive distinctions between inadmissibility and deportability remain.
INA §§ 212(a), 237(a), 8 U.S.C. § 1182(a), 1227(a).
 ABEBE v. GONZALES 8107
deportation therefrom. For instance, it was certainly rational
for Congress to turn away aliens at the border who were “af-
flicted with . . . loathsome or dangerous contagious dis-
ease[s],” 1917 Act § 3, 39 Stat. 875, but to allow aliens who
contracted such diseases after entry to remain. The immigra-
tion laws generally reflect a policy choice that what might
count as a good reason to deny admission to a first-time entry-
seeker might not be a good reason to expel a resident alien
who has developed ties to this country. However, in many
cases, an alien who has once surmounted the initial barriers
to admission will nevertheless be assimilated to the position
of a first-time entry-seeker if he travels outside the territorial
United States and attempts to return.6 This system makes
travel hazardous for the long-term resident and conflicts with
the intuitive appeal of the exclusion/deportation distinction.

Consequently, the immigration laws historically provided
preferential treatment to long-term resident aliens who sought
to re-enter the United States after a trip abroad. Congress
6
This is a simplification. Whether an alien who gains admission at one
time and subsequently travels abroad must face the same barriers to
(re)entry as a first-time visitor is a complex matter. In the early immigra-
tion cases, if a previously admitted alien “departed from the country, even
for a brief space of time[,] . . . he subjected himself to . . . exclusion” upon
his return. Lewis v. Frick, 233 U.S. 291, 297 (1914); see also, e.g., United
States ex rel. Volpe v. Smith, 289 U.S. 422, 425 (1933); Dollar S.S. Line
v. Hyde, 23 F.2d 910, 911 (9th Cir. 1928). Over time, however, some trav-
eling long-term resident aliens were effectively exempted from the
grounds of excludability. The 1952 Act provided that a long-term LPR
whose departure from the United States was unintentional or involuntary
would not be deemed to be seeking entry upon his return. 1952 Act
§ 101(a)(13), 66 Stat. 167. In Rosenberg v. Fleuti, 374 U.S. 449, 462-63
(1963), the Supreme Court held that an LPR returning from an innocent,
casual, and brief overseas excursion not intended to meaningfully interrupt
his immigration status would not be deemed to be seeking entry. In 1996,
IIRIRA § 301(a) modified the statutory text and established six alternative
conditions, at least one of which is necessary to finding that an LPR is
“seeking an admission” into the United States. 110 Stat. 3009-575 (codi-
fied at 8 U.S.C. § 1101(a)(13)(C)). We express no opinion as to whether
IIRIRA displaced the former rules.
8108 ABEBE v. GONZALES
could have exempted such aliens from the excludability tests
altogether but generally chose not to take this approach.7
Instead, long-term residents returning to the United States
have been the beneficiaries of provisions authorizing discre-
tionary relief from the grounds of exclusion.

An early version was codified in the seventh proviso to § 3
of the 1917 Act which allowed “aliens returning after a tem-
porary absence to an unrelinquished United States domicile of
seven consecutive years [to] be admitted in the discretion of
the Secretary of Labor” notwithstanding membership in an
excluded class. 39 Stat. 878.8 In this way, Congress dimin-
ished the risks faced by long-term resident aliens who trav-
eled abroad.

Although the seventh proviso only authorized relief from
the process of exclusion at the border, it was extended into the
deportation context because of the overlap between certain
deportation and exclusion provisions. An early case involved
a Yugoslavian citizen who attained legal resident status in
1909 and was convicted of larceny—a crime involving moral
turpitude—in 1924. Matter of L—, 1 I. & N. Dec. 1, 1 (BIA,
Att’y Gen. 1940). Under the law then in effect, if an alien
committed a CIMT within five years of entry and was sen-
tenced to a term of one year or more he would be deportable.
1917 Act § 19, 39 Stat. 889. Because of the date of the crime
and the length of his sentence, Mr. L was not deportable
under that provision. Matter of L—, 1 I. & N. at 1-3. How-
ever, the conviction placed Mr. L within one of the classes to
be excluded from admission. 1917 Act § 3, 39 Stat. 875
(excluding any person convicted of a CIMT regardless of sen-
tence length or date of commission).
7
But see note 6, supra, describing circumstances under which traveling
long-term residents were not deemed to be seeking entry upon their return.
8
Responsibility for enforcement of the immigration laws was subse-
quently transferred to the Department of Justice and the Attorney General.
St. Cyr, 533 U.S. at 294 n.2.
 ABEBE v. GONZALES 8109
In 1939, Mr. L traveled to Yugoslavia for two months and
returned to the United States. 1 I. & N. Dec. at 2. Upon re-
entry, Mr. L’s excludability was not detected and he was
allowed to return to the United States. Id. Several months
later, he was arrested and charged with deportability under a
different clause of § 19 that rendered removable any alien
convicted of a CIMT prior to entry. Id. at 1-2. The conviction
at issue was, of course, the very same 1924 larceny conviction
that ought to have made him excludable (and seventh-proviso-
eligible) at the time of his 1939 re-entry to the United States.
Id. at 1-2.

The Attorney General noted that despite the facial limita-
tion of seventh proviso authority to exclusion proceedings, to
deny relief simply because Mr. L found himself in deportation
proceedings would have frustrated the purpose of the provi-
sion. Id. at 5. The seventh proviso was meant to diminish the
risks of overseas travel by long-term residents. In this case,
the failure of the authorities to challenge Mr. L’s re-entry con-
verted the ground of excludability triggered by his travel into
a ground of deportability for which relief appeared to be
unavailable.

Granted that respondent’s departure in 1939 exposed
him on return to the peril of a fresh judgment as to
whether he should be permitted to reside in the
United States, such judgment ought not to depend
upon the technical form of the proceedings. . . . [The
petitioner] should be permitted to make the same
appeal to discretion that he could have made if
denied admission in 1939, or that he could make in
some future application for admission if he now left
the country.

Id. at 5-6.

The Attorney General therefore determined that he had
authority during deportation proceedings to enter a nunc pro
8110 ABEBE v. GONZALES
tunc correction of the record of Mr. L’s last entry to reflect a
grant of seventh proviso relief. Id at 6. Further, as a result of
the retroactive relief from excludability, Mr. L was not
deportable under § 19 because “the only ground for deporta-
tion is one that might have been removed by discretionary
action at [the time of the last entry].” Id. The ground of exclu-
sion for which relief was granted, 1917 Act § 3 (excluding
“persons who have been convicted of . . . a felony or other
crime or misdemeanor involving moral turpitude”), was
essentially identical to the corresponding ground of deporta-
tion, 1917 Act § 19 (“any alien who was convicted . . . prior
to entry, of a felony or other crime or misdemeanor involving
moral turpitude” is deportable). Other early cases approved a
modest extension of seventh proviso relief into the deporta-
tion context where there was a tight connection between the
ground of deportability and a corresponding ground of
excludability. See, e.g., Matter of A—, 2 I. & N. Dec. 459
(BIA 1946, Att’y Gen. 1947).

Section 212 of the Immigration and Nationality Act of
1952 replaced and roughly paralleled § 3 of the 1917 Act and
subsection (c) took the place of the seventh proviso.9 The BIA
continued the pre-1952 practice of extending relief into the
deportation context where the ground of deportability charged
was closely allied to an inadmissibility ground. See, e.g., Mat-
ter of G— A—, 7 I. & N. Dec. 274, 274 (BIA 1956).

In line with the rationale of the earlier cases, aliens seeking
§ 212(c) relief in deportation proceedings were required to
have actually traveled abroad after becoming deportable.
Matter of Arias-Uribe, 13 I. & N. Dec. 696, 698 (BIA 1971)
aff’d by Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir. 1972). In
Arias-Uribe, an alien faced deportation for a narcotics convic-
tion under § 241(a)(11)—a ground that had long been estab-
9
Section 212(c) did not give the Attorney General authority to waive the
national security and documentation grounds of excludability listed in
§§ 212(a)(26)-(29). 66 Stat. 184 (1952).
 ABEBE v. GONZALES 8111
lished to correspond to the § 212(a)(23) ground of
excludability. 13 I. & N. Dec. at 696-97. However, Arias-
Uribe did not leave the United States following his crime and
therefore never faced exclusion. Id. As a result, the nunc pro
tunc procedure outlined in Matter of L— and other cases was
not possible. Id. at 697-98.

Under the 1917 Act an alien who had not departed from the
United States after becoming deportable could nevertheless
utilize the seventh proviso. This was accomplished by grant-
ing the alien advance permission to depart voluntarily and
return, at which time his excludability would be waived. Mat-
ter of L—, 1 I. & N. Dec. at 5; see also, e.g., Matter of A—,
2 I. & N. Dec. at 461-63. However, Arias-Uribe could not
employ this procedure under the 1952 Act. Arias-Uribe, 13 I.
& N. Dec. at 700; see also Arias-Uribe, 466 F.2d at 1199;
Francis v. INS, 532 F.2d 268, 271-72 (2d Cir. 1976).

As a result, an LPR who wished to take advantage of
§ 212(c) would be required to leave the United States follow-
ing the event that rendered him deportable. If mistakenly
allowed to re-enter without challenge, he could invoke
§ 212(c) in later deportation proceedings using the nunc pro
tunc procedure. In contrast, if the alien remained in the United
States and was placed in deportation proceedings, § 212(c)
relief was unavailable.

In 1976, the Second Circuit upheld a constitutional chal-
lenge asserting that these practices “create[d] two classes of
aliens identical in every respect except for the fact that mem-
bers of one class have departed and returned to this country
at some point after they became deportable.” Francis, 532
F.2d at 272. The court determined under the “minimal scru-
tiny test” that the disparate treatment applied to members of
these classes was not rationally related to any legitimate pur-
pose of the statute and therefore violated the petitioner’s right
to equal protection of the laws as guaranteed by the Fifth
Amendment. Id. The BIA acquiesced in the Second Circuit’s
8112 ABEBE v. GONZALES
decision and withdrew from its position in Arias-Uribe. Mat-
ter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). This court
subsequently followed suit. Tapia-Acuna v. INS, 640 F.2d
223, 225 (9th Cir. 1981).

Although intended to ameliorate the hazards of re-entry
faced by long-term residents, § 212(c) was now available to
aliens who never traveled at all. However, the BIA has
resisted further departures from the statutory text and consis-
tently held that relief is available only for aliens facing depor-
tation on a ground with some tight connection to a ground of
excludability that could have been waived under § 212(c) had
the alien traveled abroad.

As noted above, most of the early cases involved the CIMT
deportation ground which was essentially identical to the
CIMT ground of excludability. See, e.g., Matter of L—, 1 I.
& N. Dec. at 1; Matter of A—, 2 I. & N. Dec. at 459. It is also
well established that § 212(c) authorizes relief from the
narcotics-related grounds of deportation because they have
specific counterparts in the grounds of excludability. Tapia-
Acuna, 640 F.2d at 224; Matter of Meza, 20 I. & N. Dec. 257,
258-59 (BIA 1991).

In contrast, the BIA and the courts have regularly denied
relief where the ground of deportability lacks a corresponding
ground of excludability. For example, aliens charged with
deportability for certain weapons offenses, Matter of Grana-
dos, 16 I. & N. Dec. 726 (BIA 1979); Cabasug v. INS, 847
F.2d 1321 (9th Cir. 1988); Komarenko v. INS, 35 F.3d 432
(9th Cir. 1994), immigration document fraud, Matter of
Wadud, 19 I. & N. Dec. 182 (BIA 1984), and entry without
inspection, Matter of T—, 5 I. & N. Dec. 389, 389-90 (BIA
1953); Matter of M—, 5 I. & N. Dec. 642, 647 (BIA 1954);
Leal-Rodriguez v. INS, 990 F.2d 939, 949-52 (7th Cir. 1993),
have all been deemed ineligible for relief on this basis.
 ABEBE v. GONZALES 8113
In the 1990’s, § 212(c) was restricted and eventually elimi-
nated through a series of amendments. The Immigration Act
of 1990 (“IMMACT 90”) stripped eligibility from any alien
who had been convicted of an aggravated felony and served
five years or more in prison. Pub. L. No. 101-649, § 511, 104
Stat. 4978, 5052.10 On April 24, 1996, section 440(d) of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)
stripped § 212(c) eligibility from any alien deportable because
of an aggravated felony conviction (regardless of the length
of the sentence), a drug conviction, multiple CIMTs, or cer-
tain weapons and national security violations. Pub. L. No.
104-132, § 440(d), 110 Stat. 1277; St. Cyr, 533 U.S. at 297
n.7. Finally, in that same year, IIRIRA entirely repealed
§ 212(c) for proceedings commenced on or after April 1,
1997. Pub. L. No. 104-208, § 304(a)(3), (b), 110 Stat. 3009-
594 to -597; St. Cyr, 533 U.S. at 297.

However, in 2001 the Supreme Court decided that § 212(c)
relief remains available for aliens who pled guilty prior to
AEDPA and/or IIRIRA and who “would have been eligible
for § 212(c) relief at the time of their plea under the law then
in effect.” St. Cyr, 533 U.S. at 326. In August 2002, the
Department of Justice (“DOJ”) published proposed amend-
ments to its regulations that were meant to codify the require-
ments for former § 212(c) relief in the wake of AEDPA,
IIRIRA, and St. Cyr. 67 Fed. Reg. 52627 (August 13, 2002).
The DOJ noted that, among other things, “an applicant must,
at a minimum meet the criteria . . . [that he] is deportable or
removable on a ground that has a corresponding ground of
exclusion or inadmissibility.” Id. at 52628-29. The final rule
10
The “aggravated felony” deportation ground was created by the Anti-
Drug Abuse Act of 1988 (“ADAA”) and was defined narrowly to include
murder, drug trafficking, and weapons trafficking. Pub. L. No. 100-690,
§§ 7342, 7344, 102 Stat. 4181. Since that time, the number of offenses
classified as aggravated felonies has exploded. See, e.g., Immigration and
Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416,
§ 222, 108 Stat. 4305, 4320-22; IIRIRA, Pub. L. No. 104-208, § 321, 110
Stat. 3009-546, 3009-627 to -628.
8114 ABEBE v. GONZALES
was published on September 28, 2004. 8 C.F.R.
§ 1212.3(f)(5).

In 2005, the Board decided that an alien who was deport-
able for an aggravated felony “sexual abuse of a minor” con-
viction was ineligible for § 212(c) relief on the basis of the
comparable grounds rule. Blake, 23 I. & N. Dec. at 723. The
Board noted that the only ground of inadmissibility that was
potentially comparable to the aggravated felony/sexual abuse
of a minor ground of deportation was § 212(a)(2)(A)(i)(I)
(rendering most aliens with CIMT convictions inadmissible).
Id. at 723-28. The Board held that while the “coverage of the
offenses described [by the deportation and exclusion provi-
sions] need not be a perfect match in order to be ‘statutory
counterparts,’ ” id. at 729, “Congress [must have] employed
similar language to describe substantially equivalent catego-
ries of offenses,” id. Reasoning that because “the moral turpi-
tude ground of exclusion addresses a . . . much broader
category of offenses than the aggravated felony sexual abuse
of a minor charge,” id. at 728, the BIA held that Congress had
not signaled an intention to treat the categories as essentially
equivalent. In Matter of Brieva, 23 I. & N. Dec. at 770-73, the
Board employed the same analysis to find that the aggravated
felony “crime of violence” ground of deportability was incon-
gruous with the CIMT ground of inadmissibility. The validity
of the Blake and Brieva holdings are matters of first impres-
sion in this circuit.

III. ANALYSIS

A. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252 to address the
constitutional and legal questions presented in Abebe’s peti-
tion. See Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053
(9th Cir. 2006). We review de novo the BIA’s determination
of purely legal questions. Simeonov v. Ashcroft, 371 F.3d 532
(9th Cir. 2004). However, the principles of deference to
 ABEBE v. GONZALES 8115
administrative agency decisions established in Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842 (1984), are applicable when a court reviews the
BIA’s interpretation of the Immigration and Nationality Act.
INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). Where, as
here, a provision of the INA is subject to more than one inter-
pretation, we ask only whether the BIA’s interpretation is a
reasonable one. Vasquez-Lopez v. Ashcroft, 343 F.3d 961,
969-70 (9th Cir. 2003).

Abebe argues that the Blake holding is not owed deference
(1) because it raises serious constitutional concerns—both in
terms of equal protection and retroactivity; and (2) because it
conflicts with the statute, regulations, and prior caselaw.
While it is true that an agency’s construction of its governing
statute must be rejected if it raises serious constitutional con-
cerns and “a less constitutionally troubling construction is
readily available,” Williams v. Babbit, 115 F.3d 657, 666 (9th
Cir. 1997), we address the non-constitutional issues first.

B. Non-Constitutional Issues

1. Consistency with the Statute

[1] Abebe argues that Blake is inconsistent with the text of
§ 212(c) as it stood at the time of his guilty plea in 1992.

Aliens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily . . .
and who are returning to a lawful unrelinquished
domicile of seven consecutive years, may be admit-
ted in the discretion of the Attorney General without
regard to the provisions of subsection (a) . . . The
first sentence of this subsection shall not apply to an
alien who has been convicted of one or more aggra-
vated felonies and has served for such felony or felo-
nies a term of at least 5 years.
8116 ABEBE v. GONZALES
8 U.S.C. § 1182(c) (Supp. IV 1992) (emphasis added).

Abebe draws our attention to the final sentence which was
added by IMMACT 90, Pub. L. No. 101-649, § 511(a), 104
Stat. 4978, 5052, and argues that by barring § 212(c) relief to
a subset of aggravated felons (those who had served at least
five years), Congress expressed an intent to render all other
aggravated felons eligible for relief. This argument fails.

[2] At the time this sentence was added, BIA and court pre-
cedent had for many years indicated that § 212(c) relief was
available only to those aliens charged as deportable on a
ground comparable to a ground of exclusion. See Matter of T
—, 5 I. & N. Dec. at 389-90; Matter of Granados, 16 I. & N.
Dec. at 728; Matter of Wadud, 19 I. & N. Dec. 182; Cabasug,
847 F.2d at 1326 (holding § 212(c) relief unavailable unless
the ground of deportation was “substantially identical in the
exclusion and deportation statutes”). Congress is presumed to
be familiar with the background of existing law when it legis-
lates, Cannon v. Univ. of Chicago, 441 U.S. 677, 699 (1979),
and therefore knew that some aggravated felons would fail to
qualify for § 212(c) relief altogether. By its amendment, Con-
gress clearly intended to further limit § 212(c) relief rather
than to expand its availability. “If Congress intended to over-
turn the practice requiring comparability, it could have done
so explicitly.” Vo, 2007 WL 816522 at *7; see also Campos
v. INS, 961 F.2d 309, 314 (1st Cir. 1992) (rejecting similar
claim). Abebe has not shown that the Board’s interpretation
of the statute is impermissible.

2. Consistency With the Regulations

Abebe also alleges that the Blake holding is inconsistent
with 8 C.F.R. § 1212.3(f) which provides in relevant part,

An application for relief under former section 212(c)
of the Act shall be denied if
 ABEBE v. GONZALES 8117
...

(4) The alien [is] removable on the basis of . . . an
aggravated felony, except as follows:

(i) An alien whose . . . aggravated felon[y convic-
tions] were entered pursuant to plea agreements
made on or after November 29, 1990, but prior to
April 24, 1996, is ineligible for section 212(c) relief
only if he or she has served a [five year] . . . term of
imprisonment . . . , and

(ii) An alien is not ineligible for section 212(c)
relief on account of an aggravated felony conviction
entered pursuant to a plea agreement that was made
before November 29, 1990.

8 C.F.R. § 1212.3(f) (2004).

[3] Abebe reasons that by specifying that an alien who
pleaded guilty between November 29, 1990 and April 24,
1996 is ineligible only if he has served five years, subsection
(f)(4)(i) implies that an alien in a similar situation but who
served less than five years is eligible for relief. Abebe mis-
reads the regulation. On a much more plausible reading, an
alien who pleaded guilty during this time frame is stripped of
§ 212(c) eligibility by the workings of 8 C.F.R. § 1212.3(f)(4)
only if he also served a five-year term. If an alien was ineligi-
ble for some other reason (say because he was not an LPR (8
C.F.R. § 1212.3(f)(1)) or was deportable on a ground lacking
a comparable ground of exclusion (8 C.F.R. § 1212.3(f)(5)),
then it would make no difference whether or not he served
five years.

[4] Abebe’s argument that Blake conflicts with 8 C.F.R.
§ 1212(f)(4)(ii) is similarly unpersuasive. That provision was
added in response to this court’s decision in Toia v. Fasano,
334 F.3d 917 (9th Cir. 2003), which held that IMMACT 90’s
8118 ABEBE v. GONZALES
amendment to § 212(c) (stripping eligibility from aggravated
felons who served five years) could not be applied retroac-
tively to aliens who pleaded guilty prior to its enactment. 69
Fed. Reg. 57830-31 (September 28, 2004). The Department of
Justice acquiesced in the result of Toia and promulgated sub-
section (f)(4)(ii) to make clear that such an alien would not be
stripped of eligibility as a result of IMMACT 90’s amend-
ment. Id. The regulation in no way provides affirmative enti-
tlement to relief to an alien who would have been ineligible
for some other reason (for instance, if the ground of remov-
ability charged lacked a comparable ground of inadmissibil-
ity).

3. Consistency With Prior Agency Practice

Abebe also argues that the Blake/Brieva rule conflicts with
past Board interpretations of the statutory counterpart require-
ment and is therefore “entitled to considerably less defer-
ence.” INS v. Cardoza-Fonesca, 480 U.S. 421, 446 n.30
(1987). This contention deserves careful consideration. If it is
true that the BIA consistently interpreted the comparable
grounds test one way and then reversed course without ade-
quate explanation, Blake might represent “an arbitrary and
capricious change from agency practice,” Nat. Cable & Tele-
comms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981
(2005), unworthy of Chevron deference.

[5] However, Abebe’s premise is false—the BIA has not
recently changed course but rather has maintained a consistent
position for many years. As noted above, § 212(c) has gener-
ally not been interpreted as a form of relief applicable to all
grounds of deportability.11 Rather, it has been said that “if a
ground of deportation is also a ground of inadmissibility . . .
11
As a lone exception, the BIA did interpret § 212(c) in this manner for
a brief period in 1990 but the Attorney General reversed the Board’s opin-
ion in March 1991. See Matter of Hernandez-Casillas, 20 I. & N. Dec 262
(BIA 1990, Att’y Gen. 1991).
 ABEBE v. GONZALES 8119
section 212(c) can be invoked in a deportation hearing.” Mat-
ter of Salmon, 16 I. & N. Dec. 734 (BIA 1978). Abebe would
have us believe that despite language comparing the ground
of deportability charged with the grounds of excludability
listed in § 212(a), the Board has, in practice, engaged in a
subtly different sort of analysis. Namely, Abebe suggests that
before Blake, the BIA compared the specific conduct render-
ing an alien deportable with the grounds of exclusion in
§ 212(a). It would follow, under this approach, that if an alien
whose conduct—say engaging in the sexual abuse of a minor
—would render him excludable for committing a CIMT, then
§ 212(c) would be available in deportation proceedings
regardless of the ground of deportation alleged by the govern-
ment.

Abebe asserts that Matter of Granados supports his posi-
tion. In that case, the BIA denied § 212(c) relief because
“[c]onviction for possession of a . . . sawed-off shotgun [(the
ground of excludability under § 241(a)(14))] is not a specified
section 212(a) ground of excludability, nor a crime involving
moral turpitude that would render the respondent excludable
under section 212(a)(9) of the Act.” 16 I. & N. Dec. at 728.
Petitioner seizes on the second half of this sentence and
claims that whenever an alien’s conduct could expose him to
the CIMT ground of excludability, he is eligible for § 212(c)
relief. We need not decide if this is an accurate statement of
the BIA’s position when Granados was decided, because it
was clearly repudiated in 1984.

In Matter of Wadud, an alien was found deportable under
§ 241(a)(5) for an immigration document fraud conviction. 19
I. & N. Dec. at 184 n.2. Mr. Wadud sought § 212(c) relief on
the theory that the conduct supporting his conviction, and
hence his deportability under § 241(a)(5), involved moral tur-
pitude and that he was therefore excludable under § 212(a)(9)
(CIMT). The BIA soundly rejected this argument characteriz-
ing its statement in Granados as dicta. Id. at 185. More
importantly, the BIA clarified that the appropriate test was
8120 ABEBE v. GONZALES
concerned only with the “ground of deportability charged,”
id. (emphasis added), and its equivalence with some specified
ground of exclusion.

In Matter of Meza, decided after the ADAA introduced the
aggravated felony provisions, the Board reiterated the basic
rule that a § 212(c) “waiver is available in deportation pro-
ceedings only to those aliens who have been found deportable
under a ground of deportability for which there is a compara-
ble ground of excludability.” 20 I. & N. Dec. at 258. In that
case, the BIA reversed the denial of § 212(c) relief sought by
an alien charged with deportability under a provision that
defined “illicit trafficking in any controlled substance” as an
“aggravated felony.” Id. at 259. The IJ made the facile con-
clusion that because there was no “aggravated felony” ground
of exclusion in § 212(a), § 212(c) relief was unavailable. Id.
The board rejected the IJ’s reasoning but did not reject a
grounds-based approach. Id. Rather, it noted that the aggra-
vated felony ground of deportability essentially incorporated
by reference § 101(a)(43) of the Act which in turn “refers to
several types or categories of offenses.” Id. Because the spe-
cific category of aggravated felony at issue—drug trafficking
offenses—was comparable to the drug trafficking ground of
exclusion in § 212(a)(23), the Board found the alien eligible
for § 212(c) relief. Id. Therefore, Meza does not support
Abebe’s position.

Abebe also points to Matter of Rodriguez-Cortes, 20 I. &
N. Dec. 587 (BIA 1992). In that case, an alien was found
deportable by an IJ both on aggravated felony and firearms
grounds. Id. at 589. Because it was well settled that § 212(c)
was unavailable for aliens facing deportation for firearms
offenses, the IJ denied relief. Id. The BIA reversed the finding
of deportability on the firearms charge and remanded. Id. at
591. The case does not address whether, on remand, the alien
may have been ineligible for relief because the aggravated fel-
ony ground of deportation lacked an exclusion counterpart. In
fact, there is no indication that the Board even considered the
 ABEBE v. GONZALES 8121
comparable grounds issue. This is too slender a reed to sup-
port the view that the BIA endorsed a conduct-based
approach, especially in the face of the substantial body of case
law both before and after Rodriguez-Cortes squarely address-
ing the issue.

[6] In short, Abebe is unable to point to any published BIA
case granting § 212(c) relief to an alien because his conduct
constituted a CIMT even though he was charged with some
other ground of deportability. Nor can he point to any federal
court of appeals precedent establishing a conduct-based test
for comparability. To the contrary, the Ninth Circuit cases
that have addressed the issue have come out the other way.
See Komarenko, 35 F.3d at 435.

[7] The comparable grounds test restated in Blake and
Brieva is consistent with past administrative and judicial
interpretations of the statute and does not represent a substan-
tial unexplained shift in agency practice.

C. Equal Protection

[8] It is well established that all individuals in the United
States—citizens and aliens alike—are protected by the Due
Process Clause of the Constitution. It is equally well estab-
lished that the Due Process Clause incorporates the guarantees
of equal protection. Komarenko, 35 F.3d at 434. This court
applies the rational basis test to federal immigration statutes
distinguishing among groups of aliens. Tapia-Acuna, 640
F.2d at 225.

Abebe argues that Blake creates classes of aliens who are
treated differently without any rational justification. Specifi-
cally, he argues that because the conduct underlying his
deportability—the sexual abuse of a minor offense—could
render him excludable under the CIMT inadmissibility provi-
sion, principles of equal protection require that he be given
the same statutory waiver opportunity that would exist for an
8122 ABEBE v. GONZALES
alien being deported for a CIMT conviction. However, this
court has already rejected a virtually identical claim in
Komarenko. That case involved an alien who had been con-
victed of assault with a deadly weapon and was deportable
under § 241(a)(2)(C) (firearms deportation ground). 35 F.3d
at 434. Mr. Komarenko argued that the conduct underlying
his conviction “could have rendered him excludable as an
alien convicted of a [CIMT]” and that therefore his equal pro-
tection rights were violated when relief was denied on the
basis of the comparable grounds test. Id. at 435. This court
refused to “employ[ ] a factual approach” but instead exam-
ined the classes of persons created by the excludability and
deportation provisions. Id.

Komarenko explicitly limited the constitutional holding in
Tapia-Acuna to cases involving aliens facing deportation on
a basis which “is identical to a statutory ground for exclusion
for which discretionary relief would be available.”
Komarenko, 35 F.3d at 434. Tapia-Acuna adopted the Second
Circuit’s Francis decision. Francis compared two classes of
aliens. In one, an alien who became deportable, left the
United States, returned, and was then deported on a ground
for which he could have been excluded upon his last re-entry,
would be eligible for § 212(c) relief under the nunc pro tunc
procedure of Matter of L—. In the other class, an alien who
became deportable but stayed in the United States would have
no opportunity for relief. The Francis court perceived no
rational basis for this distinction.

[9] Abebe faces deportation for committing an aggravated
felony/sexual abuse of a minor offense. Had he left the United
States and returned after his conviction, he could not have
been excluded on a “sexual abuse of a minor” theory because
no such ground of inadmissibility exists. It is simply beside
the point that the government could have sought to exclude
him on the CIMT ground. All that Francis and Tapia-Acuna
require is that the government give the same benefit (the
waiver of a particular ground of inadmissibility) to aliens
 ABEBE v. GONZALES 8123
whether or not they depart the United States. Komarenko
establishes that “the linchpin of the equal protection analysis
in this context is that the [deportation and exclusion] provi-
sions be substantially identical.” 35 F.3d at 435. As noted
above, the aggravated felony/sexual abuse of a minor ground
under which Abebe was found deportable is not substantially
identical to the CIMT ground of exclusion. Komarenko there-
fore settles the issue.12

D. Due Process and Retroactivity

Abebe argues that Blake and Brieva represent new rules
that may not be applied retroactively to upset the settled
expectations of LPRs who became deportable under the old
regime. Whether we apply the framework of analysis in Land-
graf v. USI Film Products, 511 U.S. 244 (1994) or Montgom-
ery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982),
Abebe’s argument fails for the simple reason that Blake and
Brieva do not represent a change in the law. As discussed
extensively supra in Section III.B.3, the BIA’s published
12
Amici curiae argue that Komarenko’s analysis is no longer good law
because it rested on the Fleuti doctrine, which allowed some LPRs to
bypass the excludability provisions if they were returning from innocent,
casual and brief trips abroad. See note 6, supra. According to amici, the
Komarenko court’s rejection of a conduct-based analysis was essentially
prudential because the court did not wish to speculate as to whether Mr.
Komarenko would have been deemed to be seeking entry if he took a
hypothetical trip abroad following his assault conviction. Although cre-
ative, this argument is unconvincing. Neither Komarenko, nor the cases on
which it relies—Tapia-Acuna and Cabasug—mention the Fleuti doctrine.
Instead, Komarenko rejected the alien’s framing of the question as
whether he “could have been excluded under the moral turpitude provi-
sion” because doing so would require “extend[ing] discretionary review to
every ground for deportation that could constitute . . . moral turpitude.” 35
F.3d at 435. The absence of the Fleuti doctrine does not erase this concern.
Further, amici simply assert that the Fleuti doctrine has been superseded
by IIRIRA’s amendments to the definition of “admission” in INA
§ 101(a)(13). Although the BIA agrees with this contention, Matter of
Collado-Munoz, 21 I. & N. Dec. 1061, 1063-67 (BIA 1998), this court has
not yet addressed the issue.
8124 ABEBE v. GONZALES
cases and this court’s decisions considering the issue have
consistently held § 212(c) relief to be unavailable to aliens
deportable on grounds that lack comparable grounds of exclu-
sion whether or not their conduct could also be characterized
as involving moral turpitude. Since at least the 1970s an alien
in Abebe’s position would not have had any reasonable
expectation of § 212(c) relief. There simply is no retroactivity
problem because there is no new law. Valere, 473 F.3d at 761;
Vo, 482 F.3d at ___, 2007 WL 816522 at *6-7.

IV. CONCLUSION

Provisions authorizing discretionary relief from exclusion
have traveled a long way from their original textual and func-
tional starting points. Because the constitution does not
require us to go further afield, we decline to do so. To the
extent it challenges the BIA’s disallowance of former
§ 212(c) relief, Abebe’s petition for review is denied. For the
reasons stated in the separate memorandum disposition filed
concurrently with this opinion we remand for further proceed-
ings regarding the withholding of removal claim.

Petition DENIED in part, REMANDED in part.

BERZON, Circuit Judge, concurring:

I write separately because I would decide this case differ-
ently than does the majority were I not constrained by
Komarenko v. INS, 35 F.3d 432 (9th Cir. 1994). Komarenko,
in my view, was wrongly decided, in large part for the reasons
that the Second Circuit recently explained in a thorough anal-
ysis of the equal protection issue underlying this case. See
Blake v. Carbone, ___ F.3d ___, No. 05-2988-AG(L), 2007
WL 1574760 (2d Cir. June 1, 2007). But for Komarenko, I
would decide this case as the Second Circuit decided Blake.1
1
Incidentally, Blake reversed the very Board of Immigration Appeals
(“BIA”) precedential opinion to which the majority in this case defers. See
Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005).
 ABEBE v. GONZALES 8125
Yet, I cannot fault the majority for relying on Komarenko in
its equal protection analysis, and I therefore concur in all but
Part C of the majority opinion, and in the result — denying
the petition.2

I.

As Blake explains, the equal protection analysis in Francis
v. INS, 532 F.2d 268 (2d Cir. 1976), adopted by this court in
Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981), and by the
BIA in Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976), man-
dates an offense-specific solution rather than the ground-
specific analysis that the BIA has adopted and that the major-
ity opinion today upholds.3 In other words, to solve the Fran-
cis problem, we should ask simply whether a deportable alien
would also have been excludable for the offense that rendered
him deportable, regardless of the statutory ground under
which that offense falls.

As the majority quite correctly describes, however, see
ante, at 8121-22, Komarenko held, to the contrary — viz., that
2
But for Komarenko, I might well consider deciding the statutory and
regulatory issues as well differently than does the majority. Where there
is a substantial constitutional issue — as there surely would be in this case
but for Komarenko — there is no need to defer to agency decisions on
statutory and regulatory issues that, if decided in favor of the party raising
constitutional claims, would avoid the need to reach the constitutional
issue raised. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988). With Chevron, U.S.A.,
Inc. v. NRDC, Inc., 467 U.S. 837 (1984) thus inapplicable, the statutory
and regulatory issues we decide might very well come out differently than
they do.
3
I use the term “ground” to refer to the categories of offenses, e.g.,
aggravated felonies, that are listed by name in the Immigration and
Nationality Act (“INA”) as reasons to deport or exclude an alien. “Of-
fenses” — the specific crimes that aliens commit or for which they are
convicted — are not listed by name in the INA. Rather, “offenses” can
make an alien deportable or excludable if the offenses fall under a ground
of deportation or excludability.
8126 ABEBE v. GONZALES
for deportable aliens, the “linchpin” of § 212(c) availability is
not the nature of the alien’s offense but rather the similarity
between the statutory text of a “ground” for exclusion and a
“ground” for deportation. See Komarenko, 35 F.3d at 435. I
fundamentally disagree with this approach, as did the Second
Circuit in Blake. Indeed, rather than fully addressing the equal
protection problem identified in Francis and Tapia-Acuna,
Komarenko’s ground-specific analysis simply creates new
arbitrary distinctions between similarly situated aliens.

A.

We held in Tapia-Acuna, adopting the Second Circuit’s
analysis in Francis, that under the equal protection guarantee
implicit in the due process clause of the Fifth Amendment,
“eligibility for [§ 212(c)] relief cannot constitutionally be
denied to an otherwise eligible alien who is deportable under
§ 1251(a)(11) [regarding drug offenses] whether or not the
alien has departed from and returned to the United States after
the conviction giving rise to deportability.” 640 F.2d at 225.
Our concern was that “[a]s noted in Francis, no purpose
would be served by giving less consideration to the alien
whose ties with this country are so strong that he has never
departed after his initial entry than to the alien who may leave
and return from time to time.” Id. (quotation marks omitted).

The BIA had earlier acquiesced in Francis, except in the
Ninth Circuit. See Tapia-Acuna, 640 F.2d at 224-25; Matter
of Silva, 16 I. & N. Dec. 26 (BIA 1976). At that point, “the
difficult task became one of implementation. How to decide
whether a deportee was ‘similarly situated’ to an excludee?”
Blake, 2007 WL 1574760, at *5. As the majority properly
concludes, even before Matter of Blake, the BIA “consistently
held that relief is available only for aliens facing deportation
on a ground with some tight connection to a ground of
excludability that could have been waived under § 212(c) had
the alien traveled abroad.” Ante at 8112. In this circuit,
Komarenko followed suit, as a matter of constitutional law.
 ABEBE v. GONZALES 8127
Komarenko’s constitutionally based analysis did, however,
differ from the more practical analysis of the BIA. The BIA
turned to a ground-specific approach because it was con-
cerned that not all crimes that triggered deportability also trig-
gered excludability. As a result, an offense-specific approach
would produce the strange result of allowing some aliens with
more severe criminal convictions access to relief not available
to aliens convicted of less serious crimes. See Matter of
Wadud, 19 I. & N. Dec. 182, 185 (BIA 1984); cf. Cabasug v.
INS, 847 F.2d 1321, 1326-27 (9th Cir. 1988) (rejecting a simi-
lar argument). The Attorney General additionally suggested
that such an approach was necessary to stay as true to the text
of § 212(c) as possible. Matter of Hernandez-Casillas, 20 I.
& N. Dec. 262, 287-88 (BIA 1990; AG 1991).

Komarenko, on the other hand, concluded that for crimes
that fall under different grounds of deportation and exclusion,
the distinction between a deportable alien who travels and one
who does not is not arbitrary — even if both aliens would also
be excludable and eligible for § 212(c) relief upon reentering
the country. 35 F.3d at 435. Komarenko furthermore “de-
cline[d] to speculate whether the [Immigration and National-
ity Service] would have applied [the crimes involving moral
turpitude] excludability provision to an alien in Komarenko’s
position” due to concerns about the scope of the court’s
authority. Id. We reasoned that if we analyzed Komarenko’s
offense to determine whether it triggered excludability as well
as deportability, we would have to review far more deporta-
tion orders in order to determine whether the offenses prop-
erly qualified as crimes involving moral turpitude. Id. “Such
judicial legislating would vastly overstep ‘our limited scope
of judicial inquiry into immigration legislation,’ and would
interfere with the broad enforcement powers Congress has
delegated to the Attorney General, see 8 U.S.C. § 1103(a).”
Id. (citations omitted) (quoting Fiallo v. Bell, 430 U.S. 787,
792 (1977)).4
4
To the extent that Komarenko is concerned with the propriety of the
court’s determination in the first instance of what constitutes a crime
8128 ABEBE v. GONZALES
These analytical differences aside, however, the practical
effects of the BIA’s approach and this court’s approach in
Komarenko have been virtually the same: the comparable
grounds standard has meant that § 212(c) relief is available
only to aliens whose offenses fall under grounds of deporta-
tion that — as a matter of statutory text — are described with
similar language as or largely overlap with categories of
excludable offenses.

B.

As the Second Circuit explained, the BIA’s — and our —
“emphasis on similar language is strange” given the context,
Blake, at *11:

The touchstone in Francis was the irrelevant and for-
tuitous circumstance of traveling abroad recently; the
decision did not consider whether equal protection
requires that all or even most offenses falling under
a particular ground of deportation must also fall
under the counterpart ground of exclusion. In short,
eligibility for relief in Francis turned on whether the
lawful permanent resident’s offense could trigger
§ 212(c) were he in exclusion proceedings, not how
his offense was categorized as a ground of deporta-
tion.

involving moral turpitude, it is at least arguable that Komarenko applies
only to cases in which it is not clearly established that the alien’s crime
constitutes a crime involving moral turpitude, or some other excludable
offense. I nevertheless concur in the majority opinion because I believe its
reading of Komarenko as not so limited is the better one. In addition to
discussing the proper role of this court, Komarenko rests on an equal pro-
tection analysis that holds distinctions among classes of aliens who have
committed the same crime not arbitrary if based on differing statutory cat-
egories. 35 F.3d at 435. While I disagree with that holding, it is fully
applicable here and sufficient to resolve the equal protection issue.
 ABEBE v. GONZALES 8129
Id. at *11 (citations and quotation marks omitted). In other
words, “what makes one alien similarly situated to another is
his or her act or offense,” not the grounds the government
chooses to use to deport the aliens. Id. at *13 (emphasis
added). Accordingly, the Second Circuit reached what in my
view is the only permissible result after Francis and Tapia-
Acuna: “[E]ach petitioner, a deportable lawful permanent resi-
dent with an aggravated felony conviction, is eligible for a
§ 212(c) waiver if his or her particular aggravated felony
offense could form the basis of exclusion.” Id. at *13. And
this is the only permissible result even if one is not sure that
Francis and Tapia-Acuna are analytically correct. See Blake,
2007 WL 1574760 at * 14 (“Francis expanded the sweep of
§ 212(c); Congress’s only response was to limit and then
repeal the statute; and the task of reconciliation unfortunately
fell on the BIA. While hindsight might pin much of this con-
fusion on Francis, we are bound to finish what our predeces-
sors started.”).

Komarenko’s alternative approach — based on grounds of
deportation rather than offenses — is troublesome not only
because it imperfectly solves the Francis problem, but also
because it creates new problems. Francis and Tapia-Acuna
identified as arbitrary — and thus unconstitutional — the dis-
tinction between deportable aliens who were alike except that
one had left the United States temporarily and was trying to
return, and the other had not. The comparable grounds test has
made the availability of § 212(c) relief turn on an equally
arbitrary distinction, between two groups of deportable aliens
who would both have been excludable had they sought to
return after leaving. Under this test, alien A who is deportable
and excludable because he committed assault with a deadly
weapon is not eligible for relief from deportation because his
offense falls into a category of deportable offenses — “aggra-
vated felonies” — that is different from the relevant category
of excludable offenses — crimes involving moral turpitude —
even though he would, in fact, have been eligible for relief
had he been intercepted at the border. See Komarenko, 35
8130 ABEBE v. GONZALES
F.3d at 435. On the other hand, alien B who is deportable
because he committed a drug offense is eligible for relief sim-
ply because drug offenses were described with similar words
in the deportation and exclusion statutes. See Tapia-Acuna,
640 F.3d at 224-25. No rational purpose can be served by this
distinction. Although important policy considerations inform
decisions about which offenses trigger deportability and
excludability, the size, scope, and overlap of categories of
deportable offenses and categories of excludable offenses
reflect no rational judgment about which individuals deserve
to stay in or enter the country. See generally Blake, at *11
n.10 (noting that making § 212(c) relief depend on the “inci-
dental overlap” between categories of excludable and deport-
able offenses “is exactly the sort of standard that invites
arbitrary decision-making. How would the BIA determine
how much overlap suffices? Would more than half the
offenses underlying a ground of deportation have to fit within
a particular ground of exclusion? Or would 33.333% do?”).

Moreover, there is an additional anomaly that the Blake
court did not mention: The comparable grounds test is
strangely at odds with how § 212(c) relief operates once it is
granted.

The BIA has consistently held that when an alien receives
a waiver of excludability under § 212(c) or other waiver pro-
visions, that alien can no longer be excluded or deported
solely due to the offense that made him excludable — even
if there is a category of deportable crimes that applies to his
offense and that is different from the category that permitted
the waiver. See Matter of Balderas, 20 I. & N. Dec. 389, 392
(BIA 1991); Matter of Gordon, 20 I. & N. Dec. 52, 56 (BIA
1989); Matter of Mascorro-Perales, 12 I. & N. Dec. 228, 229-
32 (BIA 1967); Matter of G— A—, 7 I. & N. Dec. 274, 275-
76 (BIA 1956); see generally Molina-Amezcua v. INS, 6 F.3d
646, 647-48 (9th Cir. 1993) (per curiam).5 So, in other words,
5
By the same token, a § 212(c) waiver does not extend to later crimes
committed by the same alien, even if they fall within the same category
of offenses for which the alien received the earlier waiver. See Balderas,
20 I. & N. Dec. at 393.
 ABEBE v. GONZALES 8131
relief under § 212(c) is itself offense-specific, not ground-
specific, and the BIA is thus entirely inconsistent in its appli-
cation of ground-specific and offense-specific analysis.

The result of this anomaly is, once again, inexplicable dis-
tinctions in the treatment of similarly situated individuals: As
between two individuals who would be deported for the same
aggravated felony, alien C who had received a waiver at the
border for that offense is insulated from deportation for the
offense on any ground, including on the aggravated felony
ground that did not give rise to the waiver; alien D, who
remained here, is deportable as an aggravated felony because
of the categorical mismatch. In other words, the categorical
approach is applied to one but not the other, resulting in an
arbitrary distinction.

II.

There is an additional reason I would reconsider
Komarenko, aside from the considerations that it cannot be
reconciled with Tapia-Acuna and creates additional irrational
classifications: Although the Supreme Court has not directly
addressed the issue in this case, it has assumed a premise con-
sistent only with the offense-specific approach of the Second
Circuit.

INS v. St. Cyr, 533 U.S. 289 (2001) observed that “[t]he
extension of § 212(c) relief to the deportation context has had
great practical importance, because deportable offenses have
historically been defined broadly.” Id. at 295. As an example
of the crimes that could be waived under § 212(c), the Court
cited a particularly large and growing category of deportable
offenses: aggravated felonies. Id. at 295 & n.4. Yet, it is pre-
cisely this category of offenses that Matter of Blake and
Komarenko are most likely to render unwaivable.

Aggravated felonies will most often fail the comparable
grounds test. Although the category includes numerous crimes
8132 ABEBE v. GONZALES
for which an arriving alien could be excluded, the term “ag-
gravated felony” never appears as a ground for exclusion.
Furthermore, the category of aggravated felonies, as well as
the subcategories enumerated in the statute, see 8 U.S.C.
1101(a)(43), imprecisely overlap with the most similar cate-
gory of excludable offenses: crimes involving moral turpi-
tude. See Blake, 23 I. & N. Dec. at 727-28 & n.3. But see
Matter of Meza, 20 I. & N. Dec. 257, 259 (BIA 1991) (con-
cluding that one set of aggravated felonies — drug trafficking
crimes — satisfy the comparable grounds test because those
crimes fell under a subset of aggravated felonies that was enu-
merated in statute and which would be mostly “encompassed
within the scope of” a category of excludable offenses).6

As the Supreme Court observed six years ago, the availabil-
ity of § 212(c) relief has had a profound impact on resident
aliens who face deportation. St. Cyr, 533 U.S. at 295. Despite
its unavailability under current law, § 212(c) continues to pro-
vide a vital lifeline for qualifying aliens. In reducing the avail-
ability of § 212(c) relief, Matter of Blake severely,
unnecessarily, and unconstitutionally distorts the law of
§ 212(c) as the executive branch has practiced it and as we —
with the unfortunate exception of Komarenko — have inter-
preted it.

In short, were I not bound by Komarenko, I would adopt
6
This case involves an aggravated felony that is identified in the statute
as a subcategory of aggravated felonies. 8 U.S.C. § 1101(a)(43)(A) (defin-
ing sexual abuse of a minor as an aggravated felony). There is no ground
of excludability that is as narrowly defined as this subcategory of aggra-
vated felonies. Furthermore, as the BIA noted, the subcategory of aggra-
vated felonies that includes sexual abuse crimes includes offenses that
could never serve as the basis for exclusion. Blake, 23 I. & N. Dec. at 727-
28 & n.3. Neither the majority opinion nor the BIA opinion has addressed
the application of Komarenko and the comparable grounds test to situa-
tions in which the subcategory of aggravated felonies into which an alien’s
deportable offense falls is entirely subsumed by a category of excludable
offenses.
 ABEBE v. GONZALES 8133
the Second Circuit’s analysis in Blake and remand for consid-
eration of whether Abebe is otherwise eligible and, if so,
whether he should receive a grant of § 212(c) relief as a mat-
ter of discretion. Because Komarenko is the law of our circuit,
I concur in the majority opinion except for Part C, and in the
denial of the petition.