[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 20, 2009
No. 08-13861 THOMAS K. KAHN
________________________ CLERK
Agency No. A42-086-274
JOSE ERASMO DE LA ROSA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 20, 2009)
Before DUBINA, Chief Judge, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
This case presents us with an issue of first impression in our circuit. Jose
Erasmo De la Rosa (“De la Rosa”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
determination that he was statutorily ineligible for a waiver of his deportation
charge. He contends that his conviction of the aggravated felony of sexual abuse
of a minor qualifies him to apply for a waiver of deportation pursuant to the former
Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c) (repealed
1996) (“§ 212(c) waiver”). We disagree and AFFIRM.
I. BACKGROUND 1
In June 2004, De la Rosa was issued a Notice to Appear (“NTA”). The NTA
alleged that De la Rosa, although having been legally admitted to the United
States, was deportable2 because (1) he was from the Dominican Republic and was
1
We conclude that we have jurisdiction to entertain De la Rosa’s appeal because,
although he is a convicted felon, his claims “are constitutional and legal in nature.” Alexandre v.
U.S. Att’y Gen., 452 F.3d 1204, 1205 (per curiam) (citing 8 U.S.C. § 1252(a)(2)(C),(D)).
2
The respondent provides a useful tutorial on terminology, which we recite in full:
Prior to the 1996 amendments to the INA, aliens who were ineligible to be
admitted to the United States were referred to as “excludable” while aliens who had
gained admission but were no longer eligible to remain in the United States were
referred to as “deportable.” See United States v. Lopez-Gonzalez, 183 F.3d 933,
934-35 n.4 (9th Cir. 1999). The INA also provided for separate types of immigration
proceedings, depending on whether an alien was excludable or deportable. Id.
Under current nomenclature, aliens previously referred to as “excludable” are
now referred to as “inadmissible.” Id.; INA § 212, 8 U.S.C. § 1182. Moreover, the
separate exclusion and deportation proceedings have now been consolidated into
“removal proceedings.” Id.; INA § 240, 8 U.S.C. § 1229a. . . . [T]here is no
significant difference between the terms “excludable” and “inadmissible.” Nor is
there any significant differen[ce] between “removal” proceedings and “exclusion”
or “deportation” proceedings.
Respondent’s Brief at 9 n.7. We use these terms interchangeably throughout our opinion.
2
not a citizen or a national of the United States; (2) he was admitted to the United
States in March 1989 as an immigrant; and (3) in 1995, he was convicted in a
Florida court of committing a lewd act upon a child under the age of sixteen in
violation of Florida Statute § 800.04(3). The NTA charged that De la Rosa was
subject to deportation from the United States pursuant to INA §§ 237(a)(2)(A)(iii)3
and 237(a)(2)(E)(i) because he had been convicted both of an aggravated felony as
defined in INA § 101(a)(43)(A) – a law relating to murder, rape, or sexual abuse of
a minor – and a crime of domestic violence, i.e., child abuse. The record indicates
that De la Rosa pled nolo contendere to his aggravated felony charge.
De la Rosa admitted to the allegations in the NTA and conceded that he was
deportable but sought relief in the form of a § 212(c) waiver. The government
moved to pretermit his application for a § 212(c) waiver and maintained that De la
Rosa’s aggravated felony conviction rendered him ineligible for § 212(c) relief in
accordance with the BIA’s decision in In re Blake, 23 I. & N. Dec. 722 (BIA
2005). The IJ agreed, pretermitted De la Rosa’s application for § 212(c) relief, and
ordered him removed from the United States.
De la Rosa appealed to the BIA and claimed, inter alia, that his aggravated
felony conviction constituted a “crime involving moral turpitude” as contemplated
3
Under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is
convicted of an aggravated felony at any time after admission is deportable.”
3
by INA § 212(a)(2), thus allowing him to apply for the § 212(c) waiver.
Administrative Record (“AR”) at 11-13. The BIA disagreed, dismissed the appeal,
and found that Blake precluded De la Rosa from obtaining a § 212(c) waiver. The
BIA reasoned that “[a]s the aggravated felony ground of removal applicable in this
case . . . has no statutory counterpart in the grounds of inadmissibility under
section 212(a) of the Act, the aggravated felony charge cannot be waived as a
ground of deportability under former section 212(c).” Id. at 2.
Although the question presented in this case concerns De la Rosa’s
eligibility for a § 212(c) waiver, our full consideration of that issue demands a
close analysis of both the history of INA § 212(c) and how that provision has been
interpreted by our sister circuits. Accordingly, we indulge in a brief survey of the
legal landscape in this area.
A. History of INA § 212(c), 8 U.S.C. § 1182(c)
INA § 212(c) concerns only persons in exclusion proceedings. The statutory
language in INA § 212(a) lists classes of excludable aliens who are ineligible for
admission to the United States.4 INA § 212(a); 8 U.S.C. § 1182(a). INA § 212(c),
however, vests the Attorney General with the discretion to waive exclusion for
“[a]liens lawfully admitted for permanent residence who temporarily proceeded
4
One of these excludable classes includes aliens convicted of “a crime involving moral
turpitude.” INA § 212(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I).
4
abroad voluntarily and not under an order of deportation, and who are returning to
a lawful unrelinquished domicile of seven consecutive years.”5 8 U.S.C. § 1182(c)
(repealed 1996). Even though INA § 212(c) was repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),6 relief
remains available to aliens “whose convictions were obtained through plea
agreements and who, notwithstanding those convictions, would have been eligible
for § 212(c) relief at the time of their plea under the law then in effect.” INS v. St.
Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293 (2001); see also Alexandre, 452
F.3d at 1207 (stating that those who had pled nolo contendere prior to April 1997
could seek § 212(c) relief pursuant to 8 C.F.R. § 1003.44). Because De la Rosa
pled nolo contendere to the crime rendering him deportable in 1995, he was
eligible to apply for § 212(c) relief.
As we have noted, on its face § 212(c) applies only to exclusion
proceedings. That said, the Department of Homeland Security (formerly the
5
We note that the Attorney General is accorded similar discretion to suspend deportation
of a person if that person meets a ten-year residence requirement, possesses good moral
character, and would be subject to exceptional and extremely unusual hardship if deported. INA
§ 244; 8 U.S.C. § 1254(a)(2) (repealed 1996).
6
Congress cut back on the availability of § 212(c) relief prior to its eventual repeal by the
IIRIRA. In the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5052, Congress
limited § 212(c) relief to aliens who had served fewer than five years in prison. The Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(1996), then made § 212(c) relief unavailable to aliens convicted of aggravated felonies and
other specified crimes. See AEDPA § 440(d).
5
Immigration and Naturalization Service (“INS”)) has, for several decades,
permitted aliens subject to deportation to seek § 212(c) relief nunc pro tunc.7 The
rationale for the expansion was that if the INS allowed a resident alien to reenter
the country even though he was excludable and then later sought to deport him, the
alien should not be put in a worse position than if he had been excluded in the first
instance. See Matter of G-A-, 7 I. & N. Dec. 274, 275-76 (BIA 1956). In a
previous recitation of § 212(c)’s tortuous history, we explained how this extension
produced inequities in its application. See Farquharson v. U.S. Att’y Gen., 246
F.3d 1317, 1323 (11th Cir. 2001). “While one resident alien who became
deportable and then voluntarily left the country became eligible for waiver upon
reentry, another alien who was deportable for the same reason but never left the
country had no recourse.” Id.
In Francis v. INS, 532 F.2d 268, 272 (2d Cir. 1976), the Second Circuit
addressed this distinction and concluded that it was “not rationally related to any
legitimate purpose of the statute.” Id. Instead of striking the statute, however, the
Second Circuit elected to extend § 212(c) relief to deportable aliens regardless of
whether they had left the United States after committing the act rendering them
deportable. See id. at 273. The BIA quickly adopted the reasoning of Francis and
7
“Having retroactive legal effect through a court’s inherent power.” BLACK’S LAW
DICTIONARY 1097 (7th ed. 1999).
6
likewise extended § 212(c) relief to deportable aliens. See Matter of Silva, 16 I. &
N. Dec. 26, 30 (BIA 1976).
The BIA later qualified the extension in Matter of Wadud, 19 I. & N. Dec.
182 (BIA 1984). In Wadud, the BIA settled upon the comparable grounds test as a
means of determining whether a deportee and an excludee were similarly situated.
Under the test, eligibility for § 212(c) relief turned on whether the “ground of
deportation charged is also a ground of inadmissibility.” Id. at 184 (citations
omitted). The BIA expressly “decline[d] to expand the scope of section 212(c)
relief in cases where the ground of deportability charged is not also a ground of
inadmissibility.” Id. at 185.
In 1991, the BIA softened the comparable grounds test somewhat in Matter
of Meza, 20 I. & N. Dec. 257 (BIA 1991). In Meza, the BIA applied the statutory
framework to an alien deportable for an aggravated felony conviction. Although
no ground of exclusion expressly references “aggravated felonies,” the BIA
nonetheless concluded that “ a waiver under section 212(c) is not unavailable to an
alien convicted of an aggravated felony simply because there is no ground of
exclusion [in § 212(a)] which recites the words, ‘convicted of an aggravated
felony.’” Id. at 259. Instead, the BIA looked to whether the “specific category of
aggravated felony at issue” had a comparable ground of inadmissibility in § 212(a).
Id. The BIA ultimately determined that an alien deportable for an aggravated
7
felony of “illicit trafficking in any controlled substance,” as defined in INA
§ 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), was eligible for a § 212(c) waiver
because the category of aggravated felony had a statutory counterpart of
inadmissibility in INA § 212(a)(23), 8 U.S.C. § 1182(a)(23).8 Id.
The comparable grounds test gathered ascendent strength in Matter of
Montenegro, 20 I. & N. Dec. 603 (BIA 1992), and Matter of Esposito, 21 I. & N.
Dec. 1 (BIA 1995), both of which also effectively worked to isolate Meza. In
Montenegro, the respondent was found deportable based on his conviction for
assault with a firearm. See Montenegro, 20 I. & N. Dec. at 605. The respondent
argued eligibility for § 212(c) relief under Meza because his assault conviction
constituted a crime of moral turpitude – a comparable ground of exclusion for
purposes of § 212(c) eligibility. See id. The BIA disagreed and distinguished
Meza, limiting it to “the unique situation created by the language and legislative
history of an amendment to section 212(c) by [the Immigration Act of 1990],
which indicated that some aggravated felons are eligible for a section 212(c)
waiver in deportation proceedings even though there is no single comparable
ground of exclusion based on conviction of an aggravated felony.” Id.
8
In 1990, INA § 212(a)(23), 8 U.S.C. § 1182(a)(23) was revised and redesignated at INA
§ 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). See Meza, 20 I. & N. Dec. at 260 n.5.
8
Likewise, in Esposito, the BIA again rejected the respondent’s argument that
his ineligibility for § 212(c) relief due to a lack of a comparable exclusion ground
was cured because his offense supported some ground of excludability. See
Esposito, 21 I. & N. Dec. at 18-20. As stated by the BIA, “[w]hile the respondent
could be deemed inadmissible within the meaning of section 212(a)(10) of the Act
based in part on his firearms violation, this does not make him eligible for section
212(c) relief. [His] firearms conviction standing alone supports a charge of
deportation under section 241(a)(14), [he] has in fact been found deportable based
on this charge, and section 212(c) cannot waive a charge of deportability under
section 241(a)(14) because there is no counterpart among the grounds of
inadmissibility in section 212(a).” Id. at 20 (citation and alterations omitted). As in
Montenegro, the BIA also stressed the limited reach of its decision in Meza. See
id. at 21 (“Meza . . . is limited to the question of eligibility for section 212(c) relief
in the case of a conviction for a drug-trafficking aggravated felony and is based on
the specific amendment to section 212(c) regarding aggravated felonies.”).
In the period between Montenegro and Esposito, the Second Circuit decided
Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993). In Bedoya-Valencia, the court
concluded that because entry without inspection – the charged grounds of
deportation at issue – logically cannot have an analogue in the exclusion grounds,
“coherence and consistency” dictated providing § 212(c) relief to aliens whose
9
deportable offense was entry without inspection. Id. at 897. In extending the
Francis rule, the court unambiguously articulated its view of the judicial function
in this area:
Absent any Congressional indication to the contrary, we believe
that coherence and consistency are promoted by allowing the exercise
of § 1182(c) [§ 212(c)] discretion with respect to the deportation
ground of entry without inspection. Francis effected a significant
alteration of the legal framework in this area, and in the absence of
any Congressional revisitation of that framework in the aftermath of
Francis, courts must cope with the interstitial issue posed by grounds
of deportation that have no counterparts among the statutory grounds
for exclusion.
....
We recognize, of course, as we did in Francis, the paramount
authority of the executive and legislative branches of our national
government with respect to immigration matters, and the
correspondingly limited role of the judiciary. We also recognize,
however, that federal courts can play an important role in interstitial
implementation of a legislative design, especially when that design
has already been altered by a constitutionally based court decision.
Id. at 897-88 (citations omitted).
Bedoya-Valencia is particularly important because we expressly rejected its
reasoning four months later in Rodriguez-Padron v. INS, 13 F.3d 1455, 1460 (11th
Cir. 1994). In Rodriguez-Padron, the petitioners were subject to deportation based
on their convictions for firearms violations for which there was no analogous
ground for exclusion. See id. at 1458. The petitioners argued that they should be
allowed to seek the § 212(c) waiver and relied, in part, on Bedoya-Valencia. See
10
id. at 1458-59. In rejecting this reliance on the Second Circuit’s rationale, we
observed that in Bedoya-Valencia, “[t]he Second Circuit (unlike the Attorney
General in Hernandez-Casillas9 and at least two other circuits) was untroubled by
the lack of a basis for this extension [of the Francis rule] in the statutory text.” Id.
at 1460. We added that “[i]n this context, we believe that a statute should be
stretched only as far as necessary to prevent unconstitutionality.” Id. We also
noted that Congress could have specified firearms violations as grounds for
exclusion but had elected not to do so. Finally, and perhaps most significantly, we
accorded Chevron deference to the Attorney General’s holding in Hernandez-
Casillas – namely, that the “Section 212(c) waiver is available in the deportation
context only to the extent that the grounds of deportation are analogous to one of
the grounds for exclusion.” Id. at 1460-61; see also Chevron USA, Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 2781-82 (1984).
We confirmed our determination to guard against further judicial extension
of § 212(c) relief in Farquharson. See 246 F.3d at 1325. In that case, we upheld
the comparable grounds approach in response to an equal protection challenge by a
petitioner who was found deportable for entry without inspection. See id. at 1318.
9
See Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 280-93 (BIA 1991), aff’d mem.,
983 F.2d 231 (5th Cir. 1993). In Hernandez-Casillas, the Attorney General reversed a BIA
decision making § 212(c) relief available to aliens deportable on the ground of entry without
inspection, concluding, inter alia, that “there [was] no constitutional justification for [such] a
further departure from the statutory text.” Id. at 293.
11
We concluded, in part, that Ҥ 212(c) has already been stretched beyond its
language in response to equal protection concerns, and further judicial redrafting
would serve only to pull the statute further from its moorings in the legislative
will.” Id. at 1325 (quotation marks and citation omitted).
In 2004, 8 C.F.R. § 1212.3(f)(5) codified the case law in the area and
provided that an application for relief under § 212(c) must be denied if “[t]he alien
is deportable under 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.” Id. And so the statutory counterpart test was born. The BIA’s application of
this framework in early 2005 proved to be a watershed moment in § 212(c)
jurisprudence and is of particular significance in our consideration of the case
before us. See In re Blake, 23 I. & N. Dec. 722 (BIA 2005).
In In re Blake, the BIA applied the statutory counterpart framework and
concluded that an alien deportable based on an aggravated felony conviction for
sexual abuse of a minor was ineligible for a § 212(c) waiver. See id. at 726-29.
The BIA found that the respondent was ineligible for § 212(c) relief because “the
aggravated felony offense of sexual abuse of a minor has no statutory counterpart
in the section 212(a) grounds of inadmissibility.” Id. at 723. The BIA expressly
rejected the respondent’s contention that § 212(a)(2)(A)(i)(I), the provision
rendering aliens inadmissible who have been convicted of a crime of moral
12
turpitude, was comparable to his aggravated felony charge. See id. at 727. The
BIA distinguished its decision in Meza, which the respondent cited in support of
his argument, explaining that “[t]he instant case differs from Matter of Meza in that
the moral turpitude ground of exclusion addresses a distinctly different and much
broader category of offenses than the aggravated felony sexual abuse of a minor
charge.” Id. at 728. The BIA further articulated its statutory counterpart approach
as follows:
[W]hether a ground of deportation or removal has a statutory
counterpart in the provisions for exclusion or inadmissibility turns on
whether Congress has employed similar language to describe
substantially equivalent categories of offenses. Although many
firearms offenses may also be crimes of moral turpitude, the category
of firearms offenses is not a statutory counterpart to crimes of moral
turpitude. Similarly, although there may be considerable overlap
between offenses categorized as sexual abuse of a minor and those
considered crimes of moral turpitude, these two categories of offenses
are not statutory counterparts.
....
The coverage of the offenses described need not be a perfect
match in order to be statutory counterparts under the regulation so
long as the ground of inadmissibility addresses essentially the same
category of offenses under which the removal charge is based. In
Matter of Meza, . . . for example, the language used in describing the
drug-related aggravated felony provision covered substantially the
same category of drug-related offenses addressed in the exclusion
ground. Under the regulation and our precedent decisions, however,
the test for comparability is not met merely by showing that some or
many of the offenses included in the charged category could also be
crimes involving moral turpitude.
Id. at 728-29 (quotation marks omitted).
13
B. Section 212(c) in the Wake of In re Blake
The BIA’s decision in In re Blake was not uniformly recognized as the last
word on the issue. Although it largely crystallized the grounds-based or
categorical approach of the statutory counterpart test (“categorical approach”), the
Second Circuit rejected its reasoning on appeal in Blake v. Carbone, 489 F.3d 88,
101-04 (2d Cir. 2007), and fashioned an offense-based approach as a counterpoint
to the BIA’s approach. A recent opinion by the Ninth Circuit has introduced yet
another formula for handling § 212(c) waivers. See Abebe v. Mukasey, 554 F.3d
1203 (9th Cir. 2009) (en banc). Having already considered the categorical
approach in some detail, we now examine the alternative views advanced by the
Second and Ninth Circuits respectively.
1. Blake v. Carbone – An Offense-Based Approach
In Blake, the Second Circuit declined to accord deference to the BIA’s
interpretation of the statutory counterpart rule, rejected the categorical approach as
violative of Francis, and set out its own offense-based approach for determining a
deportee’s eligibility for § 212(c) relief. After reciting Chevron’s familiar
mandate, the court concluded that because the statutory counterpart rule “is a
creature of constitutional avoidance, arising from the ramifications of a prior
constitutional decision of this court, rather than the original statute concerning
whose interpretation the Attorney General has conceded expertise,” deferring to
14
the BIA’s “determination of equal protection” would constitute, in part, an
abdication of its “responsibilit[y] to uphold the Constitution.” Blake, 489 F.3d at
100 (quotation marks and citation omitted).
In rejecting the categorical approach, the Second Circuit observed that the
BIA’s emphasis on the need for substantially similar language in grounds of
deportation and grounds of exclusion was “strange” because Congress “never
contemplated that its grounds of deportation would have any connection with the
grounds of exclusion.” Id. at 102. As asserted by the court, because
the history of § 212(c) relief for deportees began not with an
expression of congressional intent but rather with Francis[,] . . .
Congress did not employ similar terms when writing the grounds of
exclusion and grounds of deportation because it had no need to,
making it an exercise in futility to search for similar language to
gauge whether equal protection is being afforded.
Id. (citation omitted).
The court also took issue with the BIA’s “incidental overlap” language10 and
concluded that the BIA’s requirement that “all or substantially all of the offenses
10
The BIA further clarified its categorical approach in In re Brieva-Perez, 23 I. & N.
Dec. 766, 773 (BIA 2005), aff’d sub. nom. Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir.
2007). In Brieva, the respondent was found deportable based on his conviction for unauthorized
use of a motor vehicle, an aggravated felony crime of violence. See id. at 772. In applying the
categorical approach, the BIA determined that “[a]lthough there need not be perfect symmetry in
order to find that a ground of removal has a statutory counterpart in section 212(a), there must be
a closer match than that exhibited by the incidental overlap between section 101(a)(43)(F) (crime
of violence) and section 212(a)(2)(A)(i)(I) (crime of moral turpitude).” Id. at 773.
15
under a particular ground of deportation must also fall under the counterpart
ground of exclusion” was not supported by Francis:
The touchstone in Francis was the “irrelevant and fortuitous”
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 deportation.
Id. (citation omitted).
The Second Circuit concluded its opinion in Blake by staking out the
contours of its offense-based approach to the statutory counterpart test:
“[P]etitioners’ eligibility for a § 212(c) waiver must turn on their particular
criminal offenses. If the offense that renders a lawful permanent resident
deportable would render a similarly situated lawful permanent resident excludable,
the deportable lawful permanent resident is eligible for a waiver of deportation.”
Id. at 103.
2. Ninth Circuit’s Repudiation of the Francis Rule
The Ninth Circuit has taken a different tact altogether. In Abebe, the court
overruled its precedent that both had adopted Francis and endorsed the statutory
counterpart test. See Abebe, 554 F.3d at 1207; see also Tapia-Acuna v. INS, 640
F.2d 223, 225 (9th Cir. 1981). In so doing, the court reassessed the “complex
16
legislative scheme” concerning § 212(c) waivers and afforded fresh consideration
to “whether [it could] conceive of a rational reason Congress may have had in
adopting it.” Abebe, 554 F.3d at 1206. The Abebe court found that it could and
explained as follows:
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. 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 government could save
resources it would otherwise devote to arresting and deporting these
aliens. Saving scarce resources that would otherwise be paid for by
taxpayers is certainly a legitimate congressional objective.
Id. (quotation marks, citations and alterations omitted). By repudiating Francis and
eliminating the statutory counterpart rule altogether, the Ninth Circuit has forged
its own path and neatly avoids any consideration of the relative merits of the
Second Circuit’s offense-based approach versus the categorical approach followed
by the majority of the other circuits who have entertained the issue.
As it stands, there exists a three-way circuit split on the question of whether
certain deportees who have not temporarily left the country are eligible for
§ 212(c) relief. The BIA and the majority of our sister circuits have adopted the
Francis rule and have applied the categorical approach when dealing with the
17
resulting statutory counterpart test.11 Under the categorical approach, the central
inquiry is whether a petitioner’s ground of deportation has a comparable ground of
exclusion under § 212(a). This approach focuses on the categorical similarity of
the corresponding grounds and avoids any examination of a petitioner’s underlying
offense and whether it could render him excludable under § 212(a).
The Second Circuit also has adopted the Francis rule but employs an
offense-based approach when considering the resultant statutory counterpart test.
Under this approach, the inquiry focuses on a petitioner’s underlying offense. If
the underlying offense responsible for a petitioner’s deportation could render him
excludable under § 212(a), then he is eligible for § 212(c) relief.
Finally, the Ninth Circuit has abandoned the Francis rule and its
accompanying statutory counterpart test altogether. In the wake of Abebe,
deportable aliens in the Ninth Circuit who have not left the country are not eligible
for § 212(c) relief. With this menu of options in mind, we now consider the merits
of De la Rosa’s petition for review.
11
See, e.g., Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 64-65 (1st Cir. 2008); Caroleo v.
Gonzales, 476 F.3d 158, 162-63 (3d Cir. 2007); Vo v. Gonzales, 482 F.3d 363, 372 (5th Cir.
2007); Koussan v. Holder, 556 F.3d 403, 412-13 (6th Cir. 2009); Valere v. Gonzales, 473 F.3d
757, 762 (7th Cir. 2007); Soriano v. Gonzales, 489 F.3d 909 (8th Cir. 2006) (per curiam).
18
II. DISCUSSION
We review the BIA’s legal determinations de novo. See Castillo-Arias v.
U.S. Att’y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006). However, our review of
the BIA’s interpretation of the statutes it administers “is informed by the principle
of deference articulated in Chevron.”12 Id. (quotation marks and citation omitted).
De la Rosa advances several arguments in support of his central contention
that the BIA erred in finding him ineligible for § 212(c) relief. First, he argues that
the BIA’s decision in In re Blake contradicts BIA and federal circuit precedent on
the issue. De la Rosa claims that such precedent provides that § 212(c) relief is
available to waive non-drug aggravated felony convictions that are also crimes
involving moral turpitude. Our view of the applicable BIA precedent is at odds
with De la Rosa’s interpretation. As early as 1984, the BIA rejected the argument
that a respondent could obtain a § 212(c) waiver if his underlying offense
constituted a crime of moral turpitude even if his charged ground of deportability
lacked a statutory counterpart in the grounds of inadmissibility. See Wadud, 19 I.
& N. Dec. at 185-86. When addressing the statutory counterpart test, the BIA
consistently has followed a categorical approach that focuses on the charged
12
We have held that Chevron deference is not appropriate in cases in which a single
member of the BIA issues a non-precedential decision that does not rely on existing BIA or
federal court precedent. See Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008).
Whereas the case before us was decided by a single member of the BIA, it is distinguishable
from Quinchia because it relied on the BIA’s precedent in Blake. See id.
19
ground of deportability rather than the underlying offense. See Esposito, 21 I. &
N. Dec. at 20; Montenegro, 20 I. & N. Dec. at 605; Meza, 20 I. & N. Dec. at 259;
Wadud, 19 I. & N. Dec. at 185-86. Consequently, In re Blake’s focus on the
charged grounds of deportation instead of the underlying offense did not represent
a departure from prior BIA practice. See In re Blake, 23 I. & N. Dec. at 729. De la
Rosa’s reliance on unpublished BIA decisions is misplaced as the BIA accords no
precedential value to its unreported decisions. See Matter of Zangwill, 18 I. & N.
Dec. 22, 27 (BIA 1981), overruled on other grounds, Matter of Ozkok, 19 I. & N.
Dec. 546 (BIA 1988).
De la Rosa also asserts that In re Blake is inconsistent with the Attorney
General’s decision in Hernandez-Casillas. See Hernandez-Casillas, 20 I. & N.
Dec. at 280-93. Seizing on the Attorney General’s comments in a footnote13, De la
Rosa disregards the body of the opinion which unambiguously supports the
categorical approach and expressly states that equal protection does not require that
discretionary relief be made available “where the ground for deportation could not
be waived if asserted in an exclusion case.” Id. at 288.
De la Rosa again attempts to glean support for his position with a curious
construction of § 212(c)’s plain language. He contends that § 212(c) provides that
13
See id. at 282 n.4 (pointing out that two grounds of deportation – illegal entry and
conviction of illegal possession of certain firearms – have no analogue in the grounds for
exclusion).
20
an alien convicted of an aggravated felony with a term of imprisonment of less
than five years could qualify for § 212(c) relief as long as his conviction caused
inadmissibility. So far, so good. But De la Rosa then asserts that this language
somehow implies that any aggravated felon with a term of imprisonment of less
than five years qualifies for § 212(c) relief. We disagree and point out that the
language at issue merely excludes a class of aggravated felons from eligibility for
§ 212(c) relief. See INA § 212(c); 8 U.S.C. § 1182(c) (providing that “[t]he 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”). In any event, De la Rosa appears to agree
that a deportee’s eligibility for § 212(c) relief is predicated on whether, as he styles
it, “the [deportee’s] conviction caused inadmissibility.” Petitioner’s Brief at 4. In
our view, this admission marks De la Rosa’s argument as superfluous and returns
us to where we started.
As previously noted, De la Rosa maintains that federal courts also have
extended § 212(c) relief to deportees convicted of aggravated felonies unrelated to
drugs. He cites three cases from our circuit in support of this argument – Adefemi
v. Ashcroft, 358 F.3d 828 (11th Cir. 2004); Cunningham v. U.S. Att’y Gen., 335
F.3d 1262 (11th Cir. 2003) (per curiam); and Ramsey v. INS, 55 F.3d 580 (11th
Cir. 1995) (per curiam). We conclude that these cases are inapposite. We vacated
21
the Adefemi opinion cited by De la Rosa, reheard the case en banc, and ultimately
determined that the petitioner was not eligible for § 212(c) relief. See Adefemi v.
Ashcroft, 386 F.3d 1022, 1031 (11th Cir. 2004) (en banc). In Cunningham, the
petitioner was denied the opportunity to apply for § 212(c) relief because the IJ
applied the wrong law. See Cunningham, 335 F.3d at 1264, 1268. We determined
that the petitioner was entitled to apply for relief and remanded the case so that the
IJ could apply the appropriate law. See id. at 1268. Finally, in Ramsey, we denied
the petitioner’s application for § 212(c) relief on the merits. See Ramsey, 55 F.3d
at 582-83. De la Rosa transforms our lack of analysis regarding Ramsey’s
statutory eligibility for § 212(c) relief into a holding that deportees convicted of
aggravated felonies that are crimes of moral turpitude are statutorily eligible for
§ 212(c) relief. We reject De la Rosa’s expansive reading of our holding and
conclude that Ramsey lends no support to De la Rosa’s argument.
Although we have dispensed with the bulk of De la Rosa’s explicit
challenges, we now circle back and address the implicit argument underpinning his
position. De la Rosa’s petition for review expressly recites neither equal protection
nor the Second Circuit’s decision in Blake as a basis for appeal. That said, his
argument can be fairly read as a challenge to the BIA’s categorical approach to the
statutory counterpart test. He argues that he is eligible for § 212(c) relief because
his conviction of the aggravated felony of sexual abuse could qualify as a crime of
22
moral turpitude, a comparable ground of inadmissibility under § 212(a). In urging
us to look to the conduct or offense underlying his conviction, De la Rosa
effectively is asking us to adopt the Second Circuit’s offense-based approach to the
statutory counterpart test. Because Blake’s holding rests on a more expansive view
of equal protection than we find palatable, we must decline. Instead, we join the
majority of our sister circuits who have considered the issue and adopt the
categorical approach to the statutory counterpart test.14
Our decision is supported by the both our precedent and the considered
reasoning advanced by our sister circuits. We recognize that clarity in this area has
proven an elusive goal, given the complexity created by overlapping administrative
decisions, judicial opinions and Congressional actions. We acknowledge that our
own reasoning on this issue has evolved over time, in fits and starts, and has not
lent itself to a bright-line rule. That, in part, is why we have labored to trace the
history of the law in this area, with all its attendant twists and turns. Our study is
directed at discerning the trajectory of the law. In so doing, we must guard against
the temptation to cherry-pick those portions along the continuum that we might
14
Our long-standing endorsement of Francis precludes us from considering the route
taken by the Ninth Circuit in Abebe. See, e.g., Chuang v. U.S. Att’y Gen., 382 F.3d 1299, 1304
(11th Cir. 2004) (per curiam); Farquharson, 246 F.3d at 1324-25; Yeung v. INS, 76 F.3d 337,
341 (11th Cir. 1995); see also Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001)
(discussing our prior panel precedent rule).
23
find appealing or convenient and remind ourselves that we are bound by the canons
of deference and judicial restraint to respect the law’s contemporary terminus.
In our view, we parted ways with the Second Circuit in Rodriguez-Padron.
See 13 F.3d at 1460. In that case, we rejected any additional extension of the
Francis rule – itself a judicially created extension on equal protection grounds. We
reiterated our aversion to “stretch[ing] [§ 212(c)] beyond its language” again in
Farquharson, and observed that “further judicial redrafting would serve only to pull
the statute further from its moorings in the legislative will.” 246 F.3d at 1325
(quotation marks and citation omitted). Although we consistently signaled our
view that any additional extension of § 212(c) beyond Francis is “not
constitutionally required,” we stress that we have in no way abandoned our
adoption of the equal protection rationale of Francis itself. Id. Indeed, we have
affirmed our commitment to the Francis rule on several occasions. See, e.g.,
Chuang, 382 F.3d at 1304; Farquharson, 246 F.3d at 1324-25; Yeung, 76 F.3d at
340.
We read Francis as extending equal protection to two classes of similarly
situated deportable aliens – one class in which an alien is convicted of a deportable
offense and is placed in deportation proceedings and another class in which an
alien is convicted of a deportable offense, travels abroad, returns to the United
States, and then is placed in deportation proceedings. The Second Circuit’s
24
offense-based approach to the statutory counterpart test, however, departs from
Francis in several respects. Many of our sister circuits have considered this issue
quite closely and we find much to admire in their logic.
The Seventh Circuit’s observation that “not every act that renders someone
deportable makes him excludable, and vice versa” largely captures the thrust of the
first counter-argument to Blake’s rationale. Zamora-Mallari v. Mukasey, 514 F.3d
679, 683 (7th Cir. 2008). Simply put, a deportable alien usually is not similarly
situated to an excludable alien. This is because Congress delineated different
grounds for deportation and exclusion. If, however, an alien’s ground for
deportation has a statutory counterpart in a ground of exclusion, then the two
classes (deportable and excludable aliens) are similarly situated and any distinction
between them would be arbitrary and violate equal protection. This point is
succinctly captured by the Ninth Circuit in the following passage15:
Generally, when courts have found an equal protection
violation, the excludability and deportation provisions have been
substantially identical. That way, the only distinction between the two
classes of persons the statute created was that one class of individuals
had traveled abroad and returned, and the other had not. It is this
arbitrary distinction that violates equal protection. In the instant case,
the provisions are entirely dissimilar, and the distinction between the
two classes is not arbitrary or unreasonable. For this reason, the
15
We recognize that the Ninth Circuit has departed from its holding in Komarenko. See
Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009). Komarenko’s reasoning, however, remains
persuasive for those circuits who continue to follow the BIA’s rationale in In re Blake.
25
linchpin of the equal protection analysis in this context is that the two
provisions be substantially identical.
Komarenko v. INS, 35 F.3d 432, 435 (9th Cir. 1994) (quotation marks and citation
omitted), abrogated by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009).
Having established the statutory counterpart test as the “linchpin” of the
equal protection analysis in the area, we next consider the merits of the categorical
approach. We find the Third Circuit’s reasoning particularly instructive. In
Caroleo, 476 F.3d at 160-61, an alien was found deportable for his conviction,
among other things, of an aggravated-felony crime of violence – attempted murder.
The alien sought a § 212(c) waiver and argued that attempted murder is a crime
involving moral turpitude, which is a ground of inadmissibility under § 212(a).
See id. at 164. The court rejected the argument and drew a distinction between §
237 of the INA, which lists the grounds upon which the Attorney General may
order an alien deported, and the statutory counterpart test under § 212(c). See id.
“It is in this context [§ 237] that courts look to an alien’s underlying criminal
conviction to determine whether if falls within one of § 237’s statutory grounds for
removal.” Id. The court explained the secondary analysis under § 212(c) as
follows:
The statutory counterpart requirement under § 212(c), on the
other hand, presents an entirely different question. In an application
for § 212(c) relief – i.e. a discretionary waiver of removal, the alien’s
removability has already been established – i.e., it has already been
26
determined that the underlying crime for which he has been convicted
falls within one of INA § 237’s grounds for removal. The relevant
statutory counterpart inquiry then looks – not to the underlying
criminal conviction – but rather to the statutory ground for removal
contained in INA § 237 and whether it has a counterpoint in the
statutory ground for exclusion provisions of INA § 212(a). Under this
categorical analysis, we compare the removal and exclusion
provisions of the INA to determine whether they are substantially
equivalent.
Id. (quotation marks omitted). The court concluded that “the underlying crime for
which [the petitioner] was convicted plays no role in this inquiry. It is therefore
irrelevant that [his] conviction . . . could have subjected him to removal as an alien
convicted of a crime of moral turpitude under INA § 237(a)(2)(A)(i).” Id. at 168
(emphasis added). Comparing the underlying criminal offense – instead of the
statutory ground of deportation – with the ground of inadmissibility hazards the
congruity between an alien in deportation proceedings and an alien in exclusion
proceedings. This is so because the underlying offense could be among a wide
array of inadmissible offenses, or not. With no congruity established, the aliens in
question are not similarly situated, and equal protection is not implicated.
We also are swayed by the Seventh Circuit’s observation that “if courts were
to look beyond the charged grounds of deportation to the underlying criminal
offense to determine whether the criminal offense could have been treated as a
crime of moral turpitude, that would greatly expand the role Congress assigned the
27
judiciary in immigration cases.” Zamora-Mallari, 514 F.3d at 692 (referencing
Komarenko). This point is underscored in the following passage from Abebe:
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 unconstitutional 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
entitled 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.
Abebe, 554 F.3d at 1212 (Clifton, J., concurring).
Finally, we reiterate our aversion to the judicial extension of a statute absent
sufficient constitutional justification. Extending it once does not empower a court
to extend it ad infinitum, without any foundation in the statute or case law. When a
rule, born of a series of ad hoc judicial extensions to a statute, no longer bears any
passing resemblance to its parent legislation, that rule is a creature of judicial
legislation. We decline to breathe further life into such a construct and hew to the
maxim that courts are charged with adjudication, not legislation.
De la Rosa was found deportable based upon his conviction of the
aggravated felony of sexual abuse of a minor. Employing the categorical approach
to the statutory counterpart test, we look to whether the grounds for his deportation
28
have a statutory counterpart to a crime involving moral turpitude under INA
§ 212(a). The BIA has determined that sexual abuse of a minor does not have a
statutory counterpart in the crime of moral turpitude provision in § 212(a). See In
re Blake, 23 I. & N. Dec. at 729. Affording due deference to the BIA’s
interpretation of the INA, we conclude that De la Rosa’s implicit equal protection
argument fails.
III. CONCLUSION
De la Rosa petitions for review of the BIA’s decision affirming the IJ’s
determination that he was statutorily ineligible for a waiver of his deportation
charge. Applying the categorical approach to the statutory counterpart test, we
conclude that De la Rosa’s conviction of the aggravated felony of sexual abuse of a
minor does not have a statutory counterpart in the grounds of inadmissibility in
§ 212(a). Accordingly, he is ineligible for § 212(c) relief.
AFFIRMED.
29