Abebe v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

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

Argued and Submitted
March 25, 2008—San Francisco, California

Filed November 20, 2008

Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman,
Ronald M. Gould, Richard C. Tallman, Richard R. Clifton,
Consuelo M. Callahan, Carlos T. Bea and N. Randy Smith,
Circuit Judges.

Per Curiam Opinion;
Concurrence by Judge Clifton;
Dissent by Judge Thomas

15655
15658 ABEBE v. MUKASEY
COUNSEL

Robert B. Jobe and Fatma Marouf, Law Office of Robert B.
Jobe, San Francisco, California, for the petitioner.

Thomas H. Dupree, Jr., Deputy Assistant Attorney General;
Peter D. Keisler, Assistant Attorney General; M. Jocelyn
Lopez Wright, Assistant Director, Office of Immigration Liti-
gation; Song E. Park, Office of Immigration Litigation, Wash-
ington, DC, for the respondent.

OPINION

PER CURIAM:

1. Petitioner became a lawful permanent resident in 1984
and, in 1992, pled guilty to lewd and lascivious conduct upon
a child. Cal. Penal Code § 288(a). INS commenced removal
proceedings on the ground that he was deportable as having
committed an “aggravated felony,” 8 U.S.C.
§ 1227(a)(2)(A)(iii)—“sexual abuse of a minor,” id.
§ 1101(a)(43)(A). The Immigration Judge (IJ) denied petition-
er’s asylum, withholding of removal and Convention Against
Torture claims, and found petitioner ineligible for a discre-
tionary waiver of deportation under former Immigration and
Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).1
On appeal to the Board of Immigration Appeals (BIA), peti-
tioner argued that he’s eligible for section 212(c) relief. The
BIA affirmed, and Abebe petitions for review.

2. Petitioner argues that, by finding him ineligible for sec-
1
Even though section 212(c) was repealed by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-
208, the Supreme Court held that this repeal can’t be applied retroactively
to aliens, such as petitioner, who pled guilty to deportable crimes before
IIRIRA took effect. INS v. St. Cyr, 533 U.S. 289, 326 (2001).
 ABEBE v. MUKASEY 15659
tion 212(c) relief, the BIA denied him equal protection. Rely-
ing on Komarenko v. INS, 35 F.3d 432, 434-35 (9th Cir.
1994), the three-judge panel held that petitioner isn’t eligible
for section 212(c) relief. Abebe v. Gonzales, 493 F.3d 1092,
1104-05 (9th Cir. 2007), vacated, 514 F.3d 909 (9th Cir.
2008). Under Komarenko, 35 F.3d at 434-35, a deportable
alien can only be eligible for section 212(c) relief if his
grounds for deportation are substantially identical to a ground
for inadmissibility.2 Here, petitioner is deportable for commit-
ting an “aggravated felony,” 8 U.S.C. § 1227(a)(2)(A)(iii),
which the panel held isn’t substantially identical to the most
analogous ground for inadmissibility—committing a “crime
involving moral turpitude,” id. § 1182(a)(2)(A)(i)(I). Abebe,
493 F.3d at 1104-05. Petitioner claims that the rationale of
Komarenko can’t be squared with that of Tapia-Acuna v. INS,
640 F.2d 223, 225 (9th Cir. 1981). He therefore asks us to
overrule Komarenko, and hold that a deportable alien can only
be eligible for section 212(c) relief if his conviction is sub-
stantially identical to a ground for inadmissibility. See Abebe,
493 F.3d at 1106 (Berzon, J., concurring).

[1] Under its plain language, section 212(c) only gives the
Attorney General discretion to grant lawful permanent resi-
dents relief from inadmissibility3 —not deportation. See 8
U.S.C. § 1182(c) (repealed 1996). Tapia-Acuna, though, fol-
lowed Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976), and
2
Inadmissibility (or “exclusion” under pre-IIRIRA law) applies to an
alien outside the United States who is not allowed to enter, 8 U.S.C.
§ 1182(a), whereas deportation applies to an alien who is already in the
United States and is ejected, id. § 1227. See Guzman-Andrade v. Gon-
zales, 407 F.3d 1073, 1076 (9th Cir. 2005). Under IIRIRA, both inadmis-
sible and deportable aliens go through the same process, called “removal
proceedings.” Id. (citing Romero-Torres v. Ashcroft, 327 F.3d 887, 889
(9th Cir. 2003)).
3
IIRIRA changes somewhat the nomenclature applicable to immigration
cases. What used to be “excludability” is now “inadmissibility”; what used
to be “deportation” is now “removal.” We use these terms interchange-
ably.
15660 ABEBE v. MUKASEY
held that equal protection required us to extend section 212(c)
relief to aliens facing deportation—if such aliens would have
been eligible for section 212(c) relief from inadmissibility,
had they left the United States and attempted to reenter.
Tapia-Acuna, 640 F.2d at 225. In following Francis, Tapia-
Acuna reasoned that there is no rational basis for granting
additional immigration relief to aliens who temporarily leave
the United States and try to reenter (i.e., aliens facing inad-
missibility), than to aliens who remain in the United States
(i.e., aliens facing deportation). Tapia-Acuna, 640 F.2d at
225. According to Francis and Tapia-Acuna, it is wholly irra-
tional for Congress to give any advantage to aliens outside the
United States that it denies to similarly situated aliens within
the United States.

[2] We are not convinced that Francis and Tapia-
Acuna accorded sufficient deference to this complex legisla-
tive scheme, and therefore reconsider this question, as we are
authorized to do en banc. We note at the outset that the statute
doesn’t discriminate against a discrete and insular minority or
trench on any fundamental rights, and therefore we apply a
standard of bare rationality. United States v. Barajas-Guillen,
632 F.2d 749, 752 (9th Cir. 1980) (quoting Alvarez v. Dist.
Dir. of the U.S. INS, 539 F.2d 1220, 1224 (9th Cir. 1976)).
Congress has particularly broad and sweeping powers when
it comes to immigration, and is therefore entitled to an addi-
tional measure of deference when it legislates as to admission,
exclusion, removal, naturalization or other matters pertaining
to aliens. See Kleindienst v. Mandel, 408 U.S. 753, 769-70
(1972); Boutilier v. INS, 387 U.S. 118, 123-24 (1967); Flem-
ming v. Nestor, 363 U.S. 603, 616 (1960). Our task, therefore,
is to determine, not whether the statutory scheme makes sense
to us, but whether we can conceive of a rational reason Con-
gress may have had in adopting it.4
4
In making this determination, we do not look to the actual rationale for
the legislation, as it is often very difficult or impossible to determine what
 ABEBE v. MUKASEY 15661
[3] We can: Congress could have limited section 212(c)
relief to aliens seeking to enter the country from abroad in
order to “create[ ] an incentive for deportable aliens to leave
the country.” Requena-Rodriguez v. Pasquarell, 190 F.3d
299, 309 (5th Cir. 1999) (quoting LaGuerre v. Reno, 164 F.3d
1035, 1041 (7th Cir. 1998)); see DeSousa v. Reno, 190 F.3d
175, 185 (3d Cir. 1999). A deportable alien who wishes to
obtain section 212(c) relief will know that he can’t obtain
such relief so long as he remains in the United States; if he
departs the United States, however, he could become eligible
for such relief. By encouraging such self-deportation, the gov-
ernment could save resources it would otherwise devote to
arresting and deporting these aliens. See Jurado-Gutierrez v.
Greene, 190 F.3d 1135, 1153 (10th Cir. 1999), abrogated in
part by INS v. St. Cyr, 533 U.S. 289, 326 (2001). Saving
scarce resources that would otherwise be paid for by taxpay-
ers is certainly a legitimate congressional objective.

[4] We thus overrule Tapia-Acuna’s holding that there’s no
rational basis for providing section 212(c) relief from inad-
missibility, but not deportation. The BIA therefore didn’t vio-
late petitioner’s right to equal protection by finding him
ineligible for section 212(c) relief from deportation. Since
petitioner was not eligible for section 212(c) relief in the first
place, the BIA could not have committed an equal protection
violation by denying him such relief. We affirm the BIA’s
section 212(c) ruling, and have no reason to reconsider
Komarenko. Indeed, under our ruling today,

a collective body, such as Congress, has in mind. The task would be par-
ticularly difficult in a case like ours where the statutory scheme now in
force is the product of repeated layers of congressional enactments and
judicial interpretations, so it is quite likely that no one anticipated the
existing Byzantine structure. Our inquiry therefore focuses on whether a
hypothetically rational Congress could have adopted the statutory scheme,
not on whether Congress actually adopted the statute with that particular
reason in mind.
15662 ABEBE v. MUKASEY
Komarenko becomes a dead letter, as its only purpose was to
fill a gap created by Tapia-Acuna.

[5] 3. Petitioner also argues that the IJ erred by denying his
claim for withholding of removal. But petitioner didn’t raise
a withholding of removal claim in his brief before the BIA,
and the BIA was therefore not required to consider it. See,
e.g., Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524,
535 n.11 (3d Cir. 2007) (issues raised in the notice of appeal
but not argued in appellant’s principal brief are deemed aban-
doned). When a petitioner files no brief and relies entirely on
the notice of appeal to make an immigration argument, as he
may do before the BIA, see 8 C.F.R. § 1003.38(f), then the
notice of appeal serves in lieu of a brief, and he will be
deemed to have exhausted all issues raised therein. But when
a petitioner does file a brief, the BIA is entitled to look to the
brief for an explication of the issues that petitioner is present-
ing to have reviewed. Petitioner will therefore be deemed to
have exhausted only those issues he raised and argued in his
brief before the BIA. Here, petitioner did file a brief, which
did not raise the withholding of removal issue. He therefore
didn’t exhaust that claim, and we lack jurisdiction to review
it. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (cit-
ing 8 U.S.C. § 1252(d)(1)). Ladha v. INS, 215 F.3d 889, 903
(9th Cir. 2000), is overruled.

PETITION DENIED IN PART and DISMISSED IN
PART.5

5
For the reasons given in the three-judge panel opinion, the BIA didn’t
erroneously or inconsistently apply 8 U.S.C. § 1182(c) (repealed 1996), or
8 C.F.R. § 1213(f). Abebe, 493 F.3d at 1101-04. Likewise, we reject peti-
tioner’s due process retroactivity argument. Id. at 1105.
 ABEBE v. MUKASEY 15663
CLIFTON, Circuit Judge, with whom Circuit Judges
SILVERMAN and GOULD join, concurring in the judgment:

I concur in the judgment, denying in part and dismissing in
part Yewhalashet Abebe’s petition for review. I do not join
most of the majority opinion,1 however, because I believe it
is both unnecessary and unwise to overrule our prior decision
in Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981), to reach
that result. The government has not advocated such a drastic
step. The original decision by a three-judge panel of our court,
Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007), reached
the same result in this case as the majority reaches today, sim-
ply by applying our existing precedent, Komarenko v. INS, 35
F.3d 432 (9th Cir. 1994). The en banc panel should do the
same.

I share the concern expressed in the dissent with overruling
more than sixty years of agency precedent and more than
twenty-seven years of our own precedent. I also share the fear
that the path taken by the majority puts into jeopardy the
agency’s ability to continue to grant discretionary relief in
removal proceedings pursuant to 8 C.F.R. § 1212.3. Although
the majority says otherwise, its interpretation of the statute
appears to leave no room for that practice to continue. In addi-
tion, I would prefer to avoid aggravating a circuit split with
the numerous other courts that have adopted the same balance
we struck in Komarenko.

I nevertheless concur in the judgment because I conclude
that aliens who could have been, but were not, charged with
removal on grounds equivalent to a ground for inadmissibility
are not similarly situated to aliens who were actually so
charged. Abebe’s equal protection challenge therefore fails.
Put another way, although I agree with most of Part I of the
dissent, I disagree with Part II and do not believe we should
1
I do join in Part 3 of the majority opinion, because I agree that peti-
tioner did not exhaust his withholding of removal claim before the agency.
15664 ABEBE v. MUKASEY
overturn our decision in Komarenko and follow the Second
Circuit’s recent decision in Blake v. Carbone, 489 F.3d 88 (2d
Cir. 2007). I would adhere to Komarenko and deny Abebe’s
petition accordingly.

I.

As the dissent points out, since at least 1940 the Executive
Branch (now in the form of the Department of Homeland
Security, or DHS, and formerly through the Immigration and
Naturalization Service, or INS) has interpreted the Immigra-
tion and Nationality Act (INA) as granting it the discretion to
afford relief from both deportation (of an alien inside the
United States, a process now called removal) and exclusion
(of an alien seeking admission to this country at the border,
now described as inadmissibility). See Matter of L., 1 I. & N.
Dec. 1 (BIA 1940). Congress was aware of this practice when
it drafted the 1952 amendments to the INA, including section
212(c). See In the Matter of S., 6 I. & N. Dec. 392, 394-96
(BIA 1955) (examining the legislative history). Although the
amendments made it harder for aliens to qualify for such dis-
cretionary relief, there is nothing in the legislative history,
which catalogued other perceived abuses, to suggest that Con-
gress disapproved of the government’s use of the predecessor
to section 212(c) to grant waivers in deportation proceedings.
This is among the reasons that the Board of Immigration
Appeals held, shortly after the amendments’ passage, that the
Attorney General retained the discretion under section 212(c)
to grant relief in both deportation and exclusion proceedings.
Id.

Initially, the government permitted aliens to apply for relief
from deportation only if they had temporarily left the country
such that they might have been subject to exclusion. In 1981,
we held in Tapia-Acuna that there was no rational basis in the
context of section 212(c) for discriminating against aliens
who had remained in the United States. Tapia-Acuna v. INS,
640 F.2d 223, 225 (9th Cir. 1981).
 ABEBE v. MUKASEY 15665
Today, the majority holds that we were mistaken in Tapia-
Acuna and that there is a legitimate basis for so limiting the
availability of section 212(c) relief. Even assuming there are
arguments in favor of that position, we rejected it twenty-
seven years ago. There is no compelling reason to overturn
that judgment now. No relevant circumstances have changed,
and our decision has been on the books for nearly three dec-
ades without causing any mischief in the law. The majority
may be animated by a desire to avoid future problems or more
expansive conceptions of equal protection, such as that
expressed by the Second Circuit in Blake, but that appears to
me to be an empty fear. We haven’t extended Tapia-Acuna’s
rationale to other situations, and any putative harm in the
future could more easily be avoided by continuing to limit
that precedent to its context.

The majority doesn’t quarrel with the legal rule of Tapia-
Acuna, that the Equal Protection Clause prohibits irrational
disparities in treatment. It simply disagrees with the applica-
tion of that long-settled rule to a statutory provision that was
repealed a dozen years ago. It disagrees that the disparate
treatment our court previously concluded was irrational is, in
fact, irrational. Reasonable minds may always disagree over
the outcome of a close case, however, and our prior conclu-
sion is consistent with the conclusions of every other circuit.
I see no justification for saying now that all of those decisions
were incorrect, especially when the vitality of section 212(c),
a statute long since repealed, has already diminished to near
insignificance. There is no pressing need to pay so little heed
to the weight of precedent and correct what, at most, is simply
a misapplication of an agreed upon rule.

The “rational basis” the majority identifies in support of
discriminating against aliens who failed to temporarily leave
the United States after committing an offense that might qual-
ify them for removal or inadmissibility relies on a tenuous
chain of inferences. The majority hypothesizes that Congress
anticipated that some aliens might decide to travel across the
15666 ABEBE v. MUKASEY
border based on knowledge that, under the immigration stat-
ute, they could be eligible for discretionary relief if they left
the country and returned, but would not be so eligible if they
did not leave the country. The majority further speculates that,
from the group of aliens who left the country for this reason,
some might be successfully stopped at the border upon their
return and denied reentry, thereby saving the government the
expense of having to later remove them. Perhaps. But it is not
an accident that the majority opinion finds it necessary to
acknowledge, at 15660-61, n.4, that it is not seeking to iden-
tify the actual rationale for the legislation. I doubt that anyone
believes that the majority’s tortured construct was in the mind
of anybody on Capitol Hill. Justifications for overruling one
of our court’s longstanding precedents should be made of
sterner stuff. We might just as well say that Congress simply
preferred to let the agency grant discretionary relief only to
those aliens who love international travel. We must place
some rational bounds on what survives rational basis review
if the constitutional right of equal protection is to have any
meaning whatsoever outside the context of suspect classifica-
tions.2

Not only does the majority overrule our precedent, it casts
doubt on DHS’s power to grant section 212(c) relief in depor-
tation or removal proceedings. It concludes that “[u]nder its
plain language, section 212(c) only gives the Attorney Gen-
eral discretion to grant lawful permanent residents relief from
inadmissibility—not deportation.” Majority Op. at 15659
(emphasis in original). In doing so, the majority holds that
sixty-eight years of agency practice was contrary to the will
of Congress and in violation of the plain language of the stat-
2
Perhaps the majority believes that equal protection should have force
only in cases involving some form of invidious discrimination, and that all
laws should survive rational basis review, but this case is a particularly
poor vehicle to stake out that position given the growing irrelevance of
section 212(c) and the need to break away from all of our sister circuits
and reverse our own precedent to do so.
 ABEBE v. MUKASEY 15667
ute the agency is charged with interpreting, and that countless
otherwise deportable or removable aliens have remained in
this country due to the agency’s error.

Later, when addressing the dissent, the majority says other-
wise and contends that nothing in the opinion undermines the
validity of 8 C.F.R. § 1212.3(f)(5). That regulation codifies
DHS’s approach, which we approved of in Komarenko, of
limiting the availability of section 212(c) relief in removal
proceedings to aliens charged with removal on a ground that
has a substantially identical statutory counterpart in the INA’s
inadmissibility provisions (the “statutory counterpart rule”). 8
C.F.R. § 1212.3(f)(5); Komarenko v. INS, 35 F.3d 432, 434
(9th Cir. 1994). But if the statute itself does not authorize
DHS to grant section 212(c) relief in any removal proceedings
whatsoever, as the majority holds, where does authority to
grant similar relief from inadmissibility come from?

It is not an answer to say that the government may choose
to treat different classes or aliens the same. The statute in
question is one that authorizes INS (now DHS) to grant dis-
cretionary waivers to persons in exclusion proceedings. If the
agency had the authority to grant discretionary waivers to
everyone, including persons in deportation proceedings,
whether or not the statute provides such authority, then there
would be no reason for the statute in the first place. The
whole thrust of the majority’s reasoning is that Congress, in
adopting the relevant statute, could rationally distinguish
between deportation and exclusion proceedings and could
limit the ability of INS to grant discretionary waivers only to
those in exclusion proceedings. Under the reasoning of the
majority, the agency does not have the authority to grant such
waivers to aliens in deportation proceedings, and if that’s the
case, 8 C.F.R. § 1212.3(f)(5) serves no purpose.

Finally, not only has every circuit to consider the question
accepted Tapia-Acuna’s conclusion that section 212(c) relief
is available in deportation and removal proceedings regardless
15668 ABEBE v. MUKASEY
of whether an alien has left the country, but every circuit to
consider the question except the Second Circuit, see Blake,
489 F.3d at 104, has also followed Komarenko and upheld the
constitutionality of DHS’s statutory counterpart rule. See Kim
v. Gonzales, 468 F.3d 58, 62-63 (1st Cir. 2006); Caroleo v.
Gonzales, 476 F.3d 158, 162-63 (3rd Cir. 2007); Brieva-Perez
v. Gonzales, 482 F.3d 356, 362 (5th Cir. 2007); Gjonaj v. INS,
47 F.3d 824, 827 (6th Cir. 1995) (“Numerous courts have
held there must be a comparable ground of exclusion for an
alien in deportation proceedings to be eligible for [section]
212(c) relief. We decline to change this well-established
rule.”); Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir. 2007)
(holding that if “the removable alien’s crime of conviction is
not substantially equivalent to a ground of inadmissibility . . .
then the removable alien is not similarly situated for purposes
of claiming an equal protection right to apply for § 212(c)
relief”); Soriano v. Gonzales, 489 F.3d 909 (8th Cir. 2006);
Rodriguez-Padron v. INS, 13 F.3d 1455, 1459 (11th Cir.
1994); see also Zamora-Mallari v. Mukasey, 514 F.3d 679,
691-92 (7th Cir. 2008) (rejecting the reasoning of the Second
Circuit’s decision in Blake); Vue v. Gonzales, 496 F.3d 858,
860-62 (8th Cir. 2007) (same). In overruling Tapia-Acuna and
discarding Komarenko as a dead letter, the majority creates a
three-way circuit split between those circuits that follow
Komarenko, those that follow Tapia-Acuna but not
Komarenko, and our court. Because I can discern no good rea-
son to abandon our sister circuits after they have faithfully
accompanied us down this now well-worn path, I cannot join
the majority opinion.

II.

Turning to the merits of Abebe’s equal protection chal-
lenge, the dissent states that “[i]n cases such as this, it is the
act or offense itself that makes one alien similarly situated to
another, not the grounds the government chooses to use to
deport the aliens.” Dissent at 15679. I disagree.
 ABEBE v. MUKASEY 15669
The government sought to remove Abebe on two indepen-
dent grounds: (1) his two convictions for committing crimes
involving moral turpitude (CIMTs) and (2) his conviction for
committing an aggravated felony. Abebe argues that his
aggravated felony conviction could also qualify as a CIMT
and that, if the government had sought to remove him solely
for CIMTs, which can also render an alien eligible for exclu-
sion, then he would have been eligible for discretionary relief
under section 212(c). He contends that DHS’s statutory coun-
terpart rule violates his right to equal protection under the Due
Process Clause because it denies him the benefit of section
212(c) relief simply because the government chose to remove
him as an aggravated felon instead of an alien who had com-
mitted CIMTs. Abebe asks that the court impose a rule under
which an immigration judge would be forced to determine
whether, given a particular conviction, the government could
have sought to remove an alien on a ground equivalent to a
ground for inadmissibility.

Abebe cannot demonstrate that he has been irrationally sub-
jected to discriminatory treatment, however, because he can-
not show that he was in the same position as an alien who was
charged with removal on a substantially similar ground to a
ground for inadmissibility. Put simply, two aliens who have
been charged with removal on different statutory grounds are
not similarly situated. That the underlying facts are such that
the government could have charged them with removal under
similar statutory grounds is not enough. If that rule were
adopted, it would create a host of problems in countless situa-
tions, predictable and unpredictable, where the government is
vested with, and exercises, discretion. To take the most obvi-
ous example, imagine the quotidian circumstance of a prose-
cutor faced with the decision of what charges to bring against
an individual based on a given set of facts. Each charge will
carry different consequences, but a defendant cannot contest
the charges actually brought against him by arguing that the
government could have charged him with a different offense
under a different statutory provision.
15670 ABEBE v. MUKASEY
Congress has vested the executive branch with discretion in
whether, when, and how to charge an alien with removal.
How it exercises that discretion will have a serious impact on
the life of a removable alien, whether it means forcible
removal from the country or the availability of section 212(c)
relief. To hold that the exercise of that discretion is unconsti-
tutional where it is not exercised in the most advantageous
way possible for a given alien under the circumstances would
open the door to a torrent of claims. An alien is no more enti-
tled to section 212(c) relief when charged with a ground of
removal that has no statutory counterpart under the INA’s
inadmissibility provisions than a defendant is entitled to a
sentencing range consistent with the least serious crime with
which he could have been charged.

This is not to say that the executive branch’s exercise of
discretion is without constitutional limits. We have permitted
claims to proceed against prosecutors whose decisions were
allegedly made on the basis of sex, race, or religion. United
States v. Redondo-Lemos, 955 F.2d 1296, 1300 (9th Cir.
1992), overruled on other grounds by United States v. Arm-
strong, 48 F.3d 1508 (9th Cir. 1995) (en banc), rev’d, 517
U.S. 456 (1996). Absent evidence of discrimination against a
suspect class, however, there is no judicial remedy for even
arbitrary charging or plea bargaining decisions, even though
“such an arbitrary exercise of power would be a Due Process
violation.” Morris v. U.S. Dist. Court, 363 F.3d 891, 896 (9th
Cir. 2004) (citing Redondo-Lemis, 955 F.2d at 1300). This is
because judicial inquiry “into prosecutors’ decision-making
processes would entangle [courts] ‘in the core decisions of
another branch of government,’ ” raising separation-of-
powers concerns. Id.

In Komarenko, this court provided additional, pragmatic
reasons for denying section 212(c) relief to an alien charged
with deportation under a subsection of the former deportation
statute that was not “substantially identical” to a subsection of
the former exclusion statute. Like Abebe, the petitioner in
 ABEBE v. MUKASEY 15671
Komarenko argued that his underlying conviction could have
qualified as a CIMT, a statutory ground for exclusion, which
would have made him eligible for section 212(c) relief. The
court held that the two grounds were “entirely dissimilar” and
that “the distinction between the two classes is not arbitrary
or unreasonable.” 35 F.3d at 435 (citing Campos v. INS, 961
F.2d 309, 316 (1st Cir. 1992) (“We cannot say that it is absurd
that for purposes of discretionary deportation review Con-
gress chooses to treat different crimes differently.”)). We
declined to engage in speculation over whether a particular
alien “could have been excluded under the moral turpitude
provision,” and noted that adopting the petitioner’s proposed
approach “would extend discretionary review to every ground
for deportation that could constitute the essential elements of
a crime involving moral turpitude.” Id. (emphasis in original)
(internal quotation marks omitted). The court concluded that
“[s]uch 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.” Id. (internal citations
and quotation marks omitted). This reasoning applies with
equal force today and, as discussed above, six of the seven
other circuits to face the question have reached the same
result.

This is not a situation, as the dissent contends, where two
lawful permanent residents are being treated differently
because one chose to “step across the border for a day.” Dis-
sent at 15672. It is a situation where two individuals are being
treated differently because the charges against them are mate-
rially different, and different charges bring different conse-
quences. This simple fact is as true in immigration
proceedings as it is in criminal law. We cannot look only to
the underlying conduct; rather, the consequences that ulti-
mately flow from an individual’s actions depend heavily on
the government’s exercise of its charging discretion.

Here, Abebe had a number of prior convictions. The gov-
ernment could have chosen to seek removal based on (1) his
15672 ABEBE v. MUKASEY
convictions for CIMTs, (2) his aggravated felony conviction,
or (3) both. It chose option three, aggressively seeking
removal on every available ground. The court should not put
immigration judges in the business of second-guessing such
charging decisions. In light of how the government chose to
charge Abebe with removal, he was not similarly situated to
an alien charged with being inadmissible, or an alien charged
with removal on a ground with a statutory counterpart in the
INA’s inadmissibility provisions, and his equal protection
challenge fails.

I therefore concur in the judgment of the court.

THOMAS, Circuit Judge, with whom PREGERSON, Circuit
Judge, joins, dissenting:

Distilled to its essence, this case involves the irrationality
of affording privileges to lawful permanent residents who step
across the border for a day, but denying the same privileges
to those who do not. The majority not only blesses this
unequal treatment, but goes much further, overruling more
than 60 years of precedent, approving an unconstitutional stat-
utory scheme not even the Board of Immigration Appeals
endorses, and implicitly declaring unconstitutional a federal
regulation.

I respectfully dissent.

I

First, some background. Prior to enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act in
1996 (“IIRIRA”), there were separate procedures and substan-
tive rules relating to (1) the deportation of persons already
present in the United States, and (2) the exclusion of persons
seeking entry. Armendariz-Montoya v. Sonchik, 291 F.3d
 ABEBE v. MUKASEY 15673
1116, 1122 (9th Cir. 2002). The INA defined deportable
aliens in § 241, 8 U.S.C. § 1251 (transferred to § 237, 8
U.S.C. § 1227), and excludable aliens in § 212(a), 8 U.S.C.
§ 1182. The exclusion procedures did not only apply to those
seeking entry into the United States in the first instance. If a
non-citizen residing in the United States temporarily left the
country, he could be excluded from re-entry. Lawful perma-
nent residents (“LPRs”) are, of course, non-citizens who have
successfully satisfied statutory requirements and earned the
favorable exercise of discretion by the government to be
allowed to reside in the United States permanently. Although
a permanent resident, an LPR still could be deported if he
committed a qualifying crime. If he left the country temporar-
ily, he could also be excluded upon return if he had commit-
ted a qualifying offense. An LPR, as a non-citizen seeking
entry, would generally be subject to the same proceedings and
grounds of exclusion if he traveled abroad and returned to the
United States. See INA §§ 101(a)(3) & (13), 66 Stat. 166, 167
(1952). Facing a large volume of cases in which a waiver of
exclusion was sought in compassionate cases involving LPRs,
Congress afforded certain qualifying LPRs the protection of
subsection (c):

Aliens 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 paragraph (1) through (25) and para-
graphs (30) and (31) of subsection (a).

INA § 212(c), 66 Stat. 187.

By its terms, former INA § 212(c), 8 U.S.C. § 1182(c)
(repealed 1996), applies only to persons in exclusion proceed-
ings. The Board of Immigration Appeals (“BIA”) first recog-
nized a problem with making section 212(c) relief available
15674 ABEBE v. MUKASEY
to excludables but not deportables in 1940, in the context of
section 212(c)’s precursor statute.1 See Matter of L, 1 I. & N.
Dec. 1 (1940). In Matter of L, the BIA held that relief under
section 212(c)’s precursor was available in a deportation pro-
ceeding where the alien had departed and returned to the
United States after the ground for exclusion/deportation arose.
To hold otherwise, the BIA noted, would render the statute
“capricious and whimsical.” Id. at 5. The Second Circuit took
this interpretation to its logical extension in Francis, 532 F.2d
268, holding that section 212(c) relief must be available to all
persons in deportation proceedings who would be excludable
on the same grounds, not just those who had actually left the
country and reentered. Immediately following Francis, the
BIA embraced the Francis analysis. Matter of Silva, 16 I. &
N. Dec. 26, 30 (BIA 1976).

When the question then reached our Court, the matter had
been so clearly determined that when we initially affirmed, in
an unpublished disposition, a denial of section 212(c) relief to
an alien in a deportation proceeding, the Supreme Court
granted certiorari and remanded the case to us for reconsider-
ation in light of the Solicitor General’s position in its brief
before the Supreme Court. The Solicitor General’s Brief on
Petition for a Writ of Certiorari asserted “the government’s
current position that those precedents [which limit section
212(c) to exclusion proceedings] are erroneous and should be
overruled.” Brief for the Respondent at 6, Tapia-Acuna v.
INS, 449 U.S. 945 (1980). The Solicitor General further stated
that “[i]n the government’s view, the Ninth Circuit’s position
is without support in either the statutory language of [section
212(c)] or the case law on which the court of appeals has
relied.” Id. at 6. On remand, we followed Francis and held
that “eligibility for [§ 212(c)] relief cannot constitutionally be
denied to an otherwise eligible alien who is deportable under
1
Section 212(c) grew out of the Seventh Proviso to Section 3 of the
Immigration Act of 1917, 39 Stat. 874. See Francis v. INS, 532 F.2d 268
(2d Cir. 1976).
 ABEBE v. MUKASEY 15675
[§ 241(a)(11) (narcotics conviction)], whether or not the alien
has departed from and returned to the United States after the
conviction.” Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.
1981).

To this date, every court to consider the issue has deter-
mined that due process requires that section 212(c) must be
applied to deportation proceedings as well as exclusion pro-
ceedings. See Blake v. Carbone, 489 F.3d 88, 103-04 (2d Cir.
2007) (discussing cases).

A

Our sister circuits are right. The Supreme Court has long
held that the constitutional promise of equal protection of the
laws applies to aliens as well as citizens. Yick Wo v. Hopkins,
118 U.S. 356 (1886). Under the minimal scrutiny test, which
is applicable in this case, distinctions between different
classes of persons “must be reasonable, not arbitrary, and
must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that all
persons similarly circumstanced shall be treated alike.” Stan-
ton v. Stanton, 421 U.S. 7, 14 (1975). As the Second Circuit
recognized in Francis, “[r]eason and fairness would suggest
that an alien whose ties with this country are so strong that he
has never departed after his initial entry should receive at least
as much consideration as an individual who may leave and
return from time to time.” 532 F.2d at 273.

Throughout this litigation, the government has been unable
to provide a rational basis for this unequal treatment. The
majority attempts to conjure one, urging that the rational basis
for making section 212(c) relief available only to aliens in
exclusion proceedings is to encourage “self-deportation” and
thus save government resources. There is no record support
for this rationale, and the majority’s reasoning contains two
fundamental flaws. First, there is no support for the conten-
tion that encouraging “self-deportation,” as described by the
15676 ABEBE v. MUKASEY
majority, would actually further the interest of saving govern-
ment resources. Second, the rational reason the majority pre-
scribes to Congress presumes an interest which is actually in
conflict with the statute itself. While the majority correctly
notes that we do not have to look to the actual rationale for
the legislation, in order to be rational, the reason must be con-
sistent.

When an LPR leaves and attempts to reenter the country
and is deemed excludable yet potentially eligible for a section
212(c) waiver, the LPR is generally allowed to enter and to
apply for the waiver from within the country. If the alien is
ultimately denied the waiver, the government must remove
him. No fewer government resources are exerted than if the
alien applied for a § 212(c) waiver during a deportation pro-
ceeding. Moreover, if the statute were to actually function as
the majority presumes and encourage aliens to voluntarily
place themselves in this position—a contention which I find
dubious—this would increase the number of removal pro-
ceedings, which would, in turn, spend more government
resources.2 There is no support in the record for the assertion
that treating returning LPRs differently from those who
remain would save government resources.

Second, implicit in the majority’s argument that a rational
Congress would want to encourage aliens who are excludable
but eligible for section 212(c) waiver to place themselves in
2
The majority responds that the government may “exclude those it
believes are less likely to obtain relief.” If we are going to assume that
LPRs will be fully informed, in advance, about the differing availabilities
of relief in deportation and exclusion proceedings and will make rational,
calculated decisions about voluntarily leaving the country in order to initi-
ate an exclusion proceeding, we should also assume these individuals will
take into account the likelihood of obtaining relief. Those unlikely to
obtain relief are equally unlikely to take the risk of leaving the country.
The majority’s speculation does nothing to undermine the point that there
is no support for the notion that encouraging “self-deportation” will save
government resources.
 ABEBE v. MUKASEY 15677
exclusion proceedings is the assumption that a rational Con-
gress would want these persons to leave the country. This is
inconsistent with the fact that, by creating section 212(c)
waiver, Congress explicitly identified this group of aliens as
desirable for reentry to the country, subject to the Attorney
General’s discretion. This is not a group of aliens who, if they
are identified, will necessarily be removed from the country.
Rather, this is a group of aliens whom Congress has deemed
worthy to remain in the country, in spite of having been con-
victed of particular crimes.3 This is the group that is being
sorted based on whether or not they have recently departed
and reentered the country. There is simply no logical reason
to discriminate between persons whom Congress has deemed
worthy—subject to the discretion of the Attorney General—of
remaining in the country based on whether or not they have
recently departed the country.4 As low a threshold as the ratio-
nal basis test is, this statutory scheme does not pass.

B

The majority’s dismissal of the constitutional problem in
the text of section 212(c) also implicitly casts considerable
3
At the risk of stating the obvious, making section 212(c) relief avail-
able only in exclusion proceedings would not encourage aliens to leave the
country permanently, but would only encourage them—again, if at all—to
leave and immediately reenter so as to take advantage of section 212(c)
waiver.
4
The majority responds that “it makes perfect sense to want [an LPR]
to be outside our borders when” he learns that he will not receive relief.
However, as discussed above, an LPR who is stopped at the border for
being excludable but who is also eligible for § 212(c) relief will generally
be admitted and continue the relief application from within the country.
Thus, if he is ultimately denied relief, he will, in fact, be inside our borders
when he gets “the bad news.”
The majority, I respectfully suggest, quotes Judge Posner out of context.
Judge Posner was addressing the rationale for allowing the option of vol-
untary departure, which occurs after a deportation proceeding has been
initiated. See LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998).
15678 ABEBE v. MUKASEY
doubt on the constitutionality of a federal regulation. After the
Supreme Court held that IIRIRA does not apply retroactively
to deny section 212(c) relief to aliens who plead guilty to a
charge which would otherwise make them eligible for a sec-
tion 212(c) waiver prior to the enactment of IIRIRA, INS v.
St. Cyr, 533 U.S. 289 (2001), the Department of Homeland
Security (“DHS”) promulgated 8 C.F.R. § 1212.3 to codify
the holding in St. Cyr. That regulation provides that, assuming
an alien in a deportation proceeding meets other requirements,
the alien is eligible for section 212(c) relief unless “[t]he alien
is deportable under former section 241 of the Act or remov-
able under section 237 of the Act on a ground which does not
have a statutory counterpart in section 212 of the Act.” 8
C.F.R. § 1212.3(f)(5).5 The regulation thus proceeds on the
long-standing assumption, which the majority has now over-
ruled in our Circuit, that section 212(c) is applicable to both
deportation and exclusion proceedings.

By holding that the statutory language of section 212(c) is
clear and that Francis and Tapia-Acuna did not “accord[ ]
sufficient deference” to Congress, the majority has implicitly
questioned DHS’s authority to enact the above regulation. See
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-843 (1984) (“If the intent of Congress
is clear, that is the end of the matter; for the agency, must give
effect to the unambiguously expressed intent of Congress.”).
Under the majority rule, the regulation that has been applied
in thousands of cases cannot survive. Those who were eligible
to apply for relief yesterday under the regulation are on very
uncertain ground today.

C

There is, in sum, no reason to depart from our long-
established precedent, developed over many decades in this
5
The BIA relied on this regulation in affirming the denial of section
212(c) relief to Abebe.
 ABEBE v. MUKASEY 15679
Circuit and every other. The BIA has acted in reliance on it,
and the government has exercised its discretion based on this
precedent to grant relief to thousands of individuals. There is
no justification for casting the system aside now and throwing
thousands of pending applications for section 212(c) relief
into question, particularly when it is unnecessary to the reso-
lution of this petition to do so.

II

Applying the constitutional analysis discussed in Part I to
the present case, I would hold that Abebe is eligible for sec-
tion 212(c) relief because the specific offense which makes
him deportable would also make him excludable. Equal pro-
tection demands that we treat equally aliens similarly situated.
In cases such as this, it is the act or offense itself that makes
one alien similarly situated to another, not the grounds the
government chooses to use to deport the aliens. To clarify our
caselaw and to bring it into proper constitutional alignment,
I would overrule Komarenko v. INS, 35 F.3d 432 (9th Cir.
1994) (applying a comparable grounds test), and follow the
lead of the Second Circuit’s well-articulated opinion in Blake,
489 F.3d 88 (applying an offense-specific test).

As Judge Berzon explained in her thoughtful concurrence
to the panel opinion in this case, the comparable ground
approach adopted in Komarenko is irreconcilable with the
equal protection analysis discussed in Part I, supra, and in
Tapia-Acuna. Indeed, the comparable ground approach
creates new problems. Just as the distinction between deport-
able aliens who are alike except that one temporarily left the
country while the other did not is arbitrary, the comparable
grounds test turns on equally arbitrary grounds.

Consider Alien A, who commits assault with a deadly
weapon. He is deportable because his offense falls into the
category “aggravated felonies.” He is also excludable because
that same offense falls into the category “crimes involving
15680 ABEBE v. MUKASEY
moral turpitude.” In an exclusion proceeding, his offense, as
a “crime of moral turpitude,” would make Alien A eligible for
a § 212(c) waiver. If he ends up in deportation proceedings,
however, he is not eligible for § 212(c) relief, under the com-
parable grounds test, because the category “aggravated felo-
nies” is sufficiently different from the category of “crimes
involving moral turpitude.” Alien B, on the other hand, who
commits a drug offense is also both deportable and exclud-
able, but is eligible for § 212(c) relief in a deportation pro-
ceeding simply because drug offenses were described with
similar words in the deportation and exclusion statutes.

This type of classification between aliens who are other-
wise similarly situated violates equal protection unless it is
rationally related to a legitimate government interest.
Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 603 (9th Cir.
2002). Congress is surely informed by important policy con-
siderations when making determinations about which offenses
make an alien deportable or excludable. Decisions about the
size, scope, and overlap of categories of deportable and
excludable offenses have no rational relation to judgments
about which aliens should be permitted to remain in our coun-
try and which should not.

As Judge Berzon pointed out, there is one additional incon-
sistency between the comparable grounds test and the way
that section 212(c) relief functions as a practical matter. Once
an alien receives a waiver of excludability under either sec-
tion 212(c) or other waiver provisions, the alien cannot be
deported or excluded in the future solely due to the offense on
which he received the waiver. This is true even if there is a
category of deportable crimes that applies to his offense
which is different from the category that permitted the waiver.
See, e.g., Matter of Balderas, 20 I. & N. Dec. 389, 392 (BIA
1991). In other words, section 212(c) relief is itself offense-
specific, not ground-specific.
 ABEBE v. MUKASEY 15681
III

Additionally, I respectfully dissent from the majority’s
holding that Abebe did not exhaust his claim for withholding
of removal. Abebe raised this claim in his notice of appeal
before the BIA. The purpose of the administrative exhaustion
requirement is so that the “administrative agency [may] have
a full opportunity to resolve a controversy or correct its own
errors before judicial intervention.” Sagermark v. INS, 767
F.2d 645, 648 (9th Cir. 1985). When a petitioner raises an
issue in his notice of appeal, the BIA has a “full opportunity
to resolve [the] controversy,” particularly in light of the fact
that the petitioner is not required to file an accompanying
brief. See 8 C.F.R. § 3.38(f) (1999) (“Briefs may be filed by
both parties . . . .” (emphasis added)). Ladha v. INS, 215 F.3d
889, 903 (9th Cir. 2000), was correctly decided. I would hold
that Abebe exhausted his claim for withholding of removal
and would thus remand to the BIA for consideration of the
claim in the first instance.

IV

For all of these reasons, I would find Abebe eligible for
section 212(c) relief. To classify aliens based on the happen-
stance of whether they have recently departed the country and
reentered furthers no logical government interest. Similarly,
to classify aliens in deportation proceedings whose deportable
offense is also a ground for exclusion based on the agency-
created category into which the offense happens to fall serves
no legitimate government interest. I would hold, following the
Second Circuit in Blake, 489 F.3d 88, that an alien in a depor-
tation proceeding is eligible for section 212(c) relief if the
offense which makes him deportable would also render him
excludable. Applying section 212(c) relief to deportation pro-
ceedings using an offense-based analysis is the only constitu-
tional interpretation of the statute. In addition, I would hold
that Abebe exhausted his claim for withholding of removal
and allow him to pursue that claim on remand. Tapia-Acuna,
15682 ABEBE v. MUKASEY
640 F.2d 223, and Ladha, 215 F.3d 889, were rightly decided.
Komarenko, 35 F.3d 432, should be overruled.

Like the Second Circuit in Blake, 489 F.3d at 91, I find
Judge Learned Hand’s caution particularly apt here: “It is well
that we should be free to rid ourselves of those who abuse our
hospitality; but it is more important that the continued enjoy-
ment of that hospitality once granted, shall not be subject to
meaningless and irrational hazards.” Di Pasquale v. Karnuth,
158 F.2d 878, 879 (2d Cir. 1947). There is no rational basis
for treating a lawful permanent resident who steps across the
border for a day better than one who does not.

For these reasons, I respectfully dissent.