United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 19, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 05-60518
_______________________
DUNG TRI VO,
Petitioner,
versus
ALBERTO R. GONZALES
UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
EDITH H. JONES, Chief Judge:
Petitioner Dung Tri Vo appeals a Board of Immigration
Appeals (“BIA”) decision finding him ineligible to apply for relief
under former § 212(c) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(c), because one of his crimes,
unauthorized use of a motor vehicle (“UUV”), lacks a comparable
ground of inadmissability under INA § 212(a).1 We find no error in
the BIA’s determination that Vo’s crime does not have a statutory
1
We note that two companion cases, Avilez-Granados v. Gonzales, No.
05-61165, and Brieva-Perez v. Gonzales, No. 05-60639, were heard on the same day
and contain related issues and overlapping reasoning.
counterpart in § 212(a) and accordingly DENY the petition for
review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dung Tri Vo, a native and citizen of Vietnam, was
admitted to the United States as a lawful permanent resident on
April 29, 1985. In December 1989, Vo was convicted in Texas state
court of theft by receiving and was sentenced to five years
imprisonment. One month later, he pleaded guilty to UUV and was
sentenced to eight years imprisonment. Vo again pleaded guilty to
UUV in Texas state court in 1992, and was sentenced to seven years
imprisonment. For all of the offenses, he did not serve more than
five years in prison cumulatively. Based on these convictions, on
February 16, 2000, the Immigration and Naturalization Service
(“INS”) served Vo with a notice to appear, charging that he was
removable under INA § 237(a)(2)(A)(iii).
Vo appeared before an Immigration Judge (“IJ”), admitted
the allegations, and conceded that he was removable based on the
aggravated felony theft offense, 8 U.S.C. § 1101(a)(43)(G).
However, he argued that the Texas crime of UUV was not a crime of
violence, 8 U.S.C. § 1101(a)(43)(F). Vo also applied for relief
from removal under the Convention Against Torture (“CAT”). See 8
C.F.R. § 208.16.
After finding that UUV was indeed a crime of violence,
the IJ sustained both grounds for removal in findings that Vo does
2
not challenge. The IJ determined that the only form of relief open
to Vo was deferral of removal under CAT, but Vo had failed to
establish that it was more likely than not that he would be
tortured if he returned to Vietnam. See § 208.16(b)(2). The IJ
accordingly denied CAT relief and ordered Vo removed to Vietnam.
The BIA affirmed the IJ’s denial of relief under CAT.
However, in light of INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271
(2001), the BIA remanded the case for consideration of whether Vo
was entitled to relief from removal under former INA § 212(c).
On remand, the IJ found Vo ineligible to apply for
§ 212(c) relief. Vo failed to establish that his UUV conviction
had a statutory counterpart in § 212(a), since it did not qualify
as a crime involving moral turpitude and there was no other crime
listed under § 212(a) that could be linked to Vo’s conviction.
Accordingly, the IJ denied Vo’s application for a waiver of
removal.
The BIA dismissed Vo’s appeal, finding him removable
because he committed an aggravated felony that was classified as a
crime of violence under INA § 101(a)(43)(F). Relying on 8 C.F.R.
§ 1212.3(f)(5), and the reasoning of Matter of Blake, 23 I. & N.
Dec. 722 (BIA 2005), the BIA stated that in order to receive a
§ 212(c) waiver, the ground of removability at issue must contain
a statutory counterpart in § 212(a)’s grounds of excludability.
The BIA determined that the incidental overlap between § 101(a)’s
crime of violence provision and the § 212(a) provision for a crime
3
involving moral turpitude was insufficient to establish eligibility
for a § 212(c) waiver: “The distinctly different terminology used
to describe the two categories of offenses and the significant
variance in the types of offenses covered by these two provisions
lead us to conclude that they are not ‘statutory counterparts’ for
purposes of § 212(c) eligibility.” Vo filed a timely petition for
review in this court.
II. DISCUSSION
A. Jurisdiction
The REAL ID Act amended 8 U.S.C. § 1252 to preclude
judicial review of any removal order based on, inter alia,
commission of an aggravated felony. See § 1252(a)(2)(C);
Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir.), cert.
denied, __ U.S. __, 127 S. Ct. 40 (2006). However, the Act also
provides that none of its provisions “shall be construed as
precluding review of constitutional claims or questions of law
raised upon a petition for review.” § 1252(a)(2)(D). This court
therefore has jurisdiction to decide the legal and constitutional
questions raised by Vo. See Hernandez-Castillo, 436 F.3d at 519.
We review the BIA’s conclusions of law de novo, according deference
to the BIA's interpretations of ambiguous provisions of the INA.
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
B. History of § 212(c) Relief
4
Former INA § 212(c) allowed a discretionary waiver of
many of the grounds of inadmissibility set forth in § 212(a) for
“[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.” INA § 212(c), 8 U.S.C. § 1182(c). In Francis
v. INS, 532 F.2d 268 (2d Cir. 1976), the Second Circuit held that
it violated equal protection to limit § 212(c) relief to aliens who
had temporarily departed and were seeking readmission, and required
that the INS make § 212(c) waivers available to all lawful
permanent residents, including those who had not departed. Francis
thus expanded the class of aliens to whom § 212(c) relief is
available but did not broaden the statutory grounds to which it may
be applied. The BIA adopted Francis in Matter of Silva, 16 I. & N.
Dec. 26 (BIA 1976), and made § 212(c) waivers available in both
exclusion and deportation proceedings nationwide.
In 1990, Congress limited § 212(c) availability to aliens
who had served fewer than five years in prison, Immigration Act of
1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978, 5052. Congress
then repealed the provision entirely in 1996 with the passage of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-54,
3009-597. The Supreme Court, however, held that § 212(c) relief
must remain available for aliens “whose convictions were obtained
through plea agreements and who, notwithstanding those convictions,
5
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, 121
S. Ct. 2293. Thus, aliens who pled guilty before the repeal of
§ 212(c) remain eligible to apply for discretionary relief.
Significantly, St. Cyr, did not address the issue of comparable
grounds.
In 2004, the BIA designed regulations to conform with St.
Cyr. As part of this codification, the BIA promulgated 8 C.F.R.
§ 1212.3(f)(5), which provided that an application for § 212(c)
relief “shall be denied if: . . . [t]he alien is deportable under
former section 241 of the Act or removable under section 237 of the
Act on a ground which does not have a statutory counterpart in
section 212 of the Act.” In Matter of Blake, the BIA applied
§ 1212.3(f)(5) and determined that the aggravated felony offense of
sexual abuse of a minor does not have a statutory counterpart in
§ 212(a). See 23 I. & N. Dec. at 727-29. The BIA specifically
rejected the argument that sexual abuse of a minor constituted a
crime involving moral turpitude as set out in § 212(a), concluding
that the overlap between crimes of violence, such as sexual abuse,
and crimes involving moral turpitude was insufficient to show that
the crimes were statutory counterparts. Id. at 728. Because there
is no other provision in § 212(a) that can serve as a comparable
ground of inadmissability to sexual abuse of a minor, Blake was
ineligible to apply for § 212(c) relief. Id. at 729.
6
In so ruling, the BIA discussed how the decision
“clarifie[d]” its prior precedent, rather than established a new
rule or standard. Id. at 728. Since at least 1979, the BIA has
held that § 212(c) relief is available only to waive charges of
deportability for which there is a comparable ground of
inadmissability. See, e.g., Matter of Granados, 16 I. & N. Dec.
726, 719 (BIA 1979), aff’d, 624 F.2d 191 (9th Cir. 1980) (table)
(§ 212(c) relief unavailable because “respondent’s conviction for
possession of an unregistered sawed-off shotgun does not come
within the grounds of excludability which are subject to a section
212(c) waiver”); see also Matter of Jimenez, 21 I.& N. Dec. 567,
573 (BIA 1996) (conviction for fraud and misuse of visas
insufficiently comparable to ground of excludability for fraud or
willful misrepresentation of a material fact in procuring a visa to
permit § 212(c) relief; despite some overlap, the former has a
“vastly greater scope” and encompasses more serious violations);
Matter of Esposito, 21 I. & N. Dec. 1, 9-10 (BIA 1995) (“section
212(c) relief is available in deportation proceedings only to those
aliens who have been found deportable under a ground of
deportability for which there is a comparable ground of
excludability”); Matter of Wadud, 19 I. & N. Dec. 182, 184 (BIA
1984) (“section 212(c) can only be invoked in a deportation hearing
where the ground of deportation charged is also a ground of
inadmissibility”).
7
The Attorney General affirmed the comparability
requirement in Matter of Hernandez-Casillas, 20 I. & N. Dec. 262
(BIA 1990; A.G. 1991), aff’d, 983 F.2d 231 (5th Cir. 1993) (table),
following an attempt by the BIA to expand § 212(c) availability to
all “aliens deportable under any ground of deportability except
those where there is a comparable ground of exclusion which has
been specifically excepted from section 212(c).” Id. at 266
(emphasis added). The Attorney General held that “the Board erred
in holding that relief under section 212(c) may be afforded for
grounds for deportation that are not grounds for exclusion made
waivable by the terms of section 212(c).” Id. at 286-87. “Francis
and Silva require only that discretionary relief under section
212(c) be made available in deportation proceedings in which the
asserted ground for deportation is also a ground for exclusion
expressly subject to waiver under that section.” Id. at 288. This
court also has affirmed the comparability requirement. See, e.g.,
Chow v. INS, 12 F.3d 34, 38 (5th Cir. 1993); Rodriguez v. INS,
9 F.3d 408, 412-14 (5th Cir. 1993).
In Blake, the BIA acknowledged that in order to qualify
as a comparable ground of inadmissability in a case involving an
aggravated felony, it is not necessary that a provision of § 212(a)
“recite[] the words ‘convicted of an aggravated felony.’” Blake,
23 I. & N. Dec. at 724 (citing Matter of Meza, 20 I. & N. Dec. 257,
259 (BIA 1991)). However, in Meza, both the ground for
excludability and the ground for deportation involved illicit
8
traffic in controlled substances. Id. at 724-25. Thus, Congress
had expressed an intent to address the same class of offense.
There is no such textual link between sexual abuse of a minor and
a crime involving moral turpitude. See id. at 727-28. The BIA
specifically noted “that the moral turpitude ground of exclusion
addresses a distinctly different and much broader category of
offenses than the...sexual abuse of a minor charge.” Id. at 728.
The mere overlap between sexual abuse and some crimes involving
moral turpitude is insufficient to render the two statutory
counterparts. Id.
The BIA reiterated its requirement of a close textual
link between a deportable alien’s crime and the asserted § 212(a)
grounds of inadmissability in Matter of Brieva-Perez, 23 I. & N.
Dec. 766 (BIA 2005), a companion case on appeal in this court,
concluding that § 212(a)’s crime involving moral turpitude ground
of exclusion does not apply to aliens, like Vo, who were convicted
of UUV.
C. Vo’s Appeal
As in Blake, the BIA determined that Vo’s crime of UUV
does not have a statutory counterpart in § 212(a) because it cannot
be considered a crime involving moral turpitude under the meaning
of that provision. Vo attacks this holding, as well as Blake, on
several grounds. Without lengthy discussion, a panel of this
court, relying on Brieva-Perez, has rejected an alien’s contention
9
that he was entitled to seek § 212(c) relief following a UUV
conviction, as there is no comparable ground of inadmissability.
See De la Paz Sanchez v. Gonzales, 473 F.3d 133 (5th Cir. 2006);
see also Caroleo v. Gonzales, 476 F.3d 158, 164-68 (3d Cir.
2007)(aggravated felony of “crime of violence” does not have a
statutory counterpart in INA § 212(a)); Valere v. Gonzales, 473
F.3d 757, 761-62 (7th Cir. 2007)(8 C.F.R. § 1212.3 is not
impermissibly retroactive). For the following reasons, we agree
with this circuit’s De la Paz Sanchez decision.
1. Impermissible Shift in Agency Practice
Vo argues that in Blake, from which Brieva-Perez directly
follows, the BIA departed from past agency practice regarding
§ 212(c) availability, and its interpretation is thus not entitled
to judicial deference. See INS v. Cardoza-Fonseca, 480 U.S. 421,
446 n.30, 107 S. Ct. 1207, 1221 n.30 (1987). However, as discussed
thoroughly in Blake, the BIA has long required a comparable ground
of excludability in order to allow aliens to apply for § 212(c)
relief.
Vo can point to no published case where the BIA granted
a section 212(c) waiver to an alien convicted of an aggravated
felony solely under the § 212(a) provision for crimes involving
moral turpitude. Offhand comments in BIA opinions have led to
confusion, but such comments regarding situations where § 212(c)
relief is not available cannot be taken as binding BIA precedent
10
requiring such relief to be available in all other instances. See
Hernandez-Casillas, 20 I. & N. Dec. at 282 n.4 (Attorney General
recognizing that § 212(c) relief is not available for those
convicted of illegal reentry and illegal possession of certain
firearms); Granados, 16 I. & N. Dec. at 728 (possession of a sawed-
off shotgun is not a crime involving moral turpitude, and the
petitioner is therefore ineligible for § 212(c) relief on that
ground). Nor are cases discussing whether certain firearms
offenses might be considered to embody a ground of excludability as
a crime involving moral turpitude persuasive where the BIA in fact
found the petitioners ineligible for other reasons. See Esposito,
21 I. & N. Dec. at 8-9; Matter of Montenegro, 20 I. & N. Dec. 603,
605-06 (BIA 1992).
Vo makes much of the fact that Blake did not discuss
Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA 1992), in
which an alien convicted of murder applied for § 212(c) relief.
The IJ had dismissed the § 212(c) application based on a finding
that the alien had committed a firearms offense, but the BIA
disagreed with this holding and remanded the case for further
proceedings. The BIA did not, however, specifically hold that
aliens convicted of murder are eligible to apply for § 212(c)
relief under the “crime involving moral turpitude” ground of
excludability, as that question was not before it. Further, the
alien was not ultimately granted a waiver of deportation as a
result of the decision.
11
The circuit precedent cited by Vo as ostensibly extending
§ 212(c) eligibility to persons convicted of aggravated felonies
unrelated to drugs is unpersuasive. Because each of the cases was
decided on other grounds, the courts never specifically held that
aliens convicted of crimes of violence are broadly eligible to
apply for § 212(c) relief under § 212(a)’s “crime involving moral
turpitude” ground of inadmissability. See Cordes v. Gonzales,
421 F.3d 889, 896-99 (9th Cir. 2005) (violation of equal protection
to deny § 212(c) eligibility to aliens whose convictions were only
declared to be aggravated felonies after their pleas were entered
while permitting relief for aliens who committed more serious
offenses that already were defined as aggravated felonies at the
time of their pleas); United States v. Ortega-Ascanio, 376 F.3d
879, 887 (9th Cir. 2004) (alien should be permitted to withdraw his
plea because IJ failed to advise him of the potential of § 212(c)
relief following St. Cyr; referred to the potential for a waiver as
only “a plausible ground for dismissal of his indictment”); Adefemi
v. Ashcroft, 358 F.3d 828, 836 (11th Cir. 2004), vacated and reh’g
granted, 386 F.3d 1022, cert. denied, 544 U.S. 1035, 125 S. Ct.
2245 (2005) (conviction not proved by clear and convincing
evidence); United States v. Leon-Paz, 340 F.3d 1003, 1006-07 (9th
Cir. 2003) (remanded because IJ improperly found petitioner
ineligible for relief based on a retroactive application of
IIRIRA’s definition of what constitutes an aggravated felony);
Cunningham v. U.S. Att’y Gen., 335 F.3d 1262, 1268 (11th Cir. 2003)
12
(improper retroactive application of amendments to INA; in
addition, the petitioner was a returning alien seeking
readmission).
Accordingly, Vo has not demonstrated a substantial shift
in agency practice sufficient to render the BIA’s interpretation of
its own regulation irrational or arbitrary and capricious.
2. St. Cyr and Retroactivity
Vo next argues that the BIA’s holding violates St. Cyr’s
rule requiring that § 212(c) relief remain available for aliens who
could have been eligible for such relief at the time of their pleas
“under the law then in effect.” St. Cyr, 533 U.S. at 326,
121 S. Ct. at 2293. However, Vo has not established that he would
have been eligible for § 212(c) relief at the time of his plea;
since at least 1979, the BIA has required a comparable ground of
inadmissability to render deportable aliens eligible to apply for
§ 212(c) relief. There is no such comparability between UUV and
crimes involving moral turpitude. As such, Vo cannot establish his
eligibility for a waiver prior to Blake, nor a violation of St.
Cyr.
Similarly, because the BIA did not adopt a new rule
limiting § 212(c) relief when it clarified its position in 2004
with C.F.R. § 1212.3(f)(5), we need not determine whether, under
the rule set forth in Landgraf v. USI Film Prods., 511 U.S. 244,
114 S.Ct. 1483 (1994), the BIA intended the rule to have
13
retroactive effect. See Clay v. Johnson, 264 F.3d 744, 749 (7th
Cir. 2001) (“A clarifying rule, therefore, can be applied to the
case at hand just as a judicial determination construing a statute
can be applied to the case at hand.”).
3. Ultra Vires
Vo asserts that 8 C.F.R. § 1212.3(f)(5), and the BIA’s
interpretation of it, is ultra vires. Vo points to the 1990
amendments, which barred § 212(c) relief for aliens who were
convicted of an aggravated felony and served a term of imprisonment
of at least five years. He argues that, by implication, all other
aliens convicted of aggravated felonies should be eligible to apply
for a discretionary waiver.
This argument has no merit. If Congress intended to
overturn the practice requiring comparability, it could have done
so explicitly. The amendments, however, were designed to limit the
availability of § 212(c) relief; we cannot infer an intent by
Congress simultaneously to expand § 212(c) eligibility when it
clearly did not express such a desire.
As already discussed, the BIA has long required
comparable grounds of inadmissibility in § 212(c) applications.
See, e.g., Wadud, 19 I. & N. Dec. 182; Granados, 16 I. & N. Dec.
726. Under Vo’s interpretation, Congress, by implication, intended
to overturn this practice, by enabling all aggravated felons who
had served less than five years to apply for a discretionary
14
waiver, regardless of comparability. This is precisely the
approach rejected by the Attorney General in Hernandez-Casillas,
20 I. & N. Dec. 262, and we decline to expand the terms of the 1990
amendments beyond their plain terms. See Rodriguez, 9 F.3d at 412
(discussing 1990 Amendments and stating that “[w]e must assume that
Congress was aware of the interpretation given to section 212(c) to
extend only to deportation grounds with analogous waivable grounds
for exclusion, and that Congress could easily have legislated a
change to this interpretation had it wished to do so”); see also
Campos v. INS, 961 F.2d 309, 315 (1st Cir. 1992) (describing an
argument similar to Vo’s as “requir[ing] us to read nonexistent
language into § 212(c) on the shaky supposition that, although
Congress made no directly relevant statutory change, it must be
presumed somehow to have signaled that a statute saying one thing
should now — although unchanged — be understood to say something
else”).
4. Internal Inconsistency
Vo argues that the BIA’s interpretation of 8 C.F.R.
§ 1212.3(f)(5) renders the regulation inconsistent with the
remainder of § 1212.3(f), which permits § 212(c) relief for aliens
who pleaded guilty at specified periods of time, coinciding with
the rules announced in St. Cyr. Under its terms, however,
§ 1212.3(f)(4) permits § 212(c) waiver eligibility for those who
pleaded guilty to aggravated felonies where the law in effect at
15
the time of their guilty pleas would have rendered them eligible,
not all aliens who pleaded guilty to aggravated offenses.
Vo contends that the fact that there is no ground of
inadmissibility that recites the words “aggravated felony” means
that § 1212.3(f)(4) is rendered superfluous by the BIA’s
interpretation of § 1212.3(f)(5). BIA precedent, however,
contradicts this assertion. For example, in Meza, 20 I. & N. Dec.
257, the BIA held that § 212(c) relief remained available for an
alien convicted of a drug-related aggravated felony because there
was a comparable ground of inadmissability under § 212(a)(23) for
a violation of laws relating to controlled substances. Although
the provision did not contain the words “aggravated felony,” the
close textual link rendered the two provisions statutory
counterparts. There is no such link between Vo’s crime, UUV, and
any specific ground of inadmissability under § 212(a), aside from
claiming it is a crime involving moral turpitude.
5. Equal Protection
Finally, Vo argues that barring § 212(c) relief to aliens
in his position violates equal protection as set out by the Second
Circuit in Francis, 532 F.2d 268, and adopted by the BIA in Silva,
16 I. & N. Dec. 26, because he would be eligible to apply for a
waiver of his aggravated felony if he were to leave the country and
seek readmission.
16
This court rejected a similar argument in Requena-
Rodriguez v. Pasquarell, 190 F.3d 299, 308-09 (5th Cir. 1999).
Even if deportable and excludable aliens can be considered
similarly situated, there is a rational basis for distinguishing
between the two. See Rodriguez, 9 F.3d at 414 (“Congress is not
required to treat all aliens alike; it is only required to give a
facially legitimate and bona fide reason for treating them
differently.”). Here, the different limits on § 212(c) relief act
as a “carrot” to induce voluntary departure: “Congress’s more
lenient treatment of excludable as distinct from deportable
aliens...creates an incentive for deportable aliens to leave the
country — which is after all the goal of deportation — without
their having to be ordered to leave at the government’s expense.”
Requena-Rodriguez, 190 F.3d at 309 (quoting LaGuerre v. Reno,
164 F.3d 1035, 1041 (7th Cir. 1998)).
Additionally, in the immigration context, there is a
particular need for courts to defer to congressional choices. See
Requena-Rodriguez, 190 F.3d at 309. Here, Congress chose to make
certain excludable aliens eligible for discretionary relief under
§ 212(c), and the expansion of that provision, required by Francis
and Silva, has only been extended to those for whom the ground of
deportability has a comparable ground of inadmissability. Vo does
not fall into this limited category for whom courts have required
an expansion of § 212(c), and there is therefore no equal
protection violation.
17
III. CONCLUSION
By its terms, § 212(c) applies only to a limited class of
excludable aliens; it was a judicial extension that required it to
be made available to deportees. As this court held in De la Paz
Sanchez, supra, we decline to extend § 212 even further. We must
construe it consistent with its terminology, lest the
administrative and judicial extension of the waiver remedy become
even less moored to the statute in which it originated. Vo’s crime
of UUV does not have a comparable ground of inadmissability under
§ 212(a). He is therefore ineligible for a § 212(c) waiver, and
his petition for review of the BIA’s decision is DENIED.
18