concurring:
I write separately because I would decide this case differently than does the majority were I not constrained by Ko-marenko v. INS, 35 F.3d 432 (9th Cir. 1994). Komarenko, in my view, was wrongly decided, in large part for the reasons that the Second Circuit recently explained in a thorough analysis of the equal protection issue underlying this case. See Blake v. Carbone, 489 F.3d 88 (2d Cir, 2007). But for Komarenko, I would decide this case as the Second Circuit decided Blake.1 Yet, I cannot fault the majority for relying on Komarenko in its equal protection analysis, and I therefore concur in all but Part C of the majority opinion, and in the result — denying the petition.2
I.
As Blake explains, the equal protection analysis in Francis v. INS, 532 F.2d 268 (2d Cir.1976), adopted by this court in Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.1981), and by the BIA in Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976), mandates an offense-speáñc solution rather than the ground-specific analysis that the BIA has adopted and that the majority opinion today upholds.3 In other words, to solve the Francis problem, we should ask simply whether a deportable alien would also have been excludable for the offense that rendered him deportable, regardless of the statutory ground under which that offense falls.
As the majority quite correctly describes, however, see ante, at 1104-05, Ko-marenko held, to the contrary — viz., that for deportable aliens, the “linchpin” of § 212(c) availability is not the nature of the alien’s offense but rather the similarity between the statutory text of a “ground” for exclusion and a “ground” for deportation. See Komarenko, 35 F.3d at 435. I fundamentally disagree with this approach, as did the Second Circuit in Blake. Indeed, rather than fully addressing the equal protection problem identified in Francis and Tapia-Acuna, Komarenko’s ground-specific analysis simply creates new arbitrary distinctions between similarly situated aliens.
*1107A.
We held in Tapia-Acuna, adopting the Second Circuit’s analysis in Francis, that under the equal protection guarantee implicit in the due process clause of the Fifth Amendment, “eligibility for [§ 212(c) ] relief cannot constitutionally be denied to an otherwise eligible alien who is deportable under § 1251(a)(11) [regarding drug offenses] whether or not the alien has departed from and returned to the United States after the conviction giving rise to deportability.” 640 F.2d at 225. Our concern was that “[a]s noted in Francis, no purpose would be served by giving less consideration to the alien whose ties with this country are so strong that he has never departed after his initial entry than to the alien who may leave and return from time to time.” Id. (quotation marks omitted).
The BIA had earlier acquiesced in Francis, except in the Ninth Circuit. See Tapia-Acuna, 640 F.2d at 224-25; Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976). At that point, “the difficult task became one of implementation. How to decide whether a deportee was ‘similarly situated’ to an excludee?” Blake, 489 F.3d at 95. As the majority properly concludes, even before Matter of Blake, the BIA “consistently held that relief is available only for aliens facing deportation on a ground with some tight connection to a ground of excludability that could have been waived under § 212(c) had the alien traveled abroad.” Ante at 1099. In this circuit, Komarenko followed suit, as a matter of constitutional law.
Komarenko’s constitutionally based analysis did, however, differ from the more practical analysis of the BIA. The BIA turned to a ground-specific approach because it was concerned that not all crimes that triggered deportability also triggered excludability. As a result, an offense-specific approach would produce the strange result of allowing some aliens with more severe criminal convictions access to relief not available to aliens convicted of less serious crimes. See Matter of Wadud, 19 I. & N. Dec. 182, 185 (BIA 1984); cf. Cabasug v. INS, 847 F.2d 1321, 1326-27 (9th Cir.1988) (rejecting a similar argument). The Attorney General additionally suggested that such an approach was necessary to stay as true to the text of § 212(c) as possible. Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 287-88 (BIA 1990, AG 1991).
Komarenko, on the other hand, concluded that for crimes that fall under different grounds of deportation and exclusion, the distinction between a deportable alien who travels and one who does not is not arbitrary — even if both aliens would also be excludable and eligible for § 212(c) relief upon reentering the country. 35 F.3d at 435. Komarenko furthermore “decline[d] to speculate whether the [Immigration and Nationality Service] would have applied [the Crimes involving moral turpitude] ex-cludability provision to an alien in Komar-enko’s position” due to concerns about the scope of the court’s authority. Id. We reasoned that if we analyzed Komarenko’s offense to determine whether it triggered excludability as well as deportability, we would have to review far more deportation orders in order to determine whether the offenses properly qualified as crimes involving moral turpitude. Id. “Such judicial legislating would vastly overstep ‘our limited scope of judicial inquiry into immigration legislation,’ and would interfere with the broad enforcement powers Congress has delegated to the Attorney General, see 8 U.S.C. § 1103(a).” Id. (citations omitted) (quoting Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977)).4
*1108These analytical differences aside, however, the practical effects of the BIA’s approach and this court’s approach in Ko-marenko have been virtually the same: the comparable grounds standard has meant that § 212(c) relief is available only to aliens whose offenses fall under grounds of deportation that — as a matter of statutory text — are described with similar language as or largely overlap with categories of excludable offenses.
B.
As the Second Circuit explained, the BIA’s — and our — “emphasis on similar language is strange” given the context, Blake, at 102:
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. at 102 (citations and quotation marks omitted). In other words, “what makes one alien similarly situated to another is his or her act or offense,” not the grounds the government chooses to use to deport the aliens. Id. at 104 (emphasis added). Accordingly, the Second Circuit reached what in my view is the only permissible result after Francis and Tapia-Acuna: “[E]ach petitioner, a deportable lawful permanent resident with an aggravated felony conviction, is eligible for a § 212(c) waiver if his or her particular aggravated felony offense could form the basis of exclusion.” Id. at 104. And this is the only permissible result even if one is not sure that Francis and Tapia-Acuna are analytically correct. See Blake, 489 F.3d at 104 (“Francis expanded the sweep of § 212(c); Congress’s only response was to limit and then repeal the statute; and the task of reconciliation unfortunately fell on the BIA. While hindsight might pin much of this confusion on Francis, we are bound to finish what our predecessors started.”).
Komarenko’s alternative approach— based on grounds of deportation rather than offenses — is troublesome not only because it imperfectly solves the Francis problem, but also because it creates new problems. Francis and Tapia-Acuna identified as arbitrary — and thus unconstitutional — the- distinction between deporta-ble aliens who were alike except that one had left the United States temporarily and was trying to return, and the other had not. The comparable grounds test has made the availability of § 212(c) relief turn on an equally arbitrary distinction, between two groups of deportable aliens who would both have been excludable had they sought to return after leaving. Under this test, alien A who is deportable and excludable because he committed assault with a deadly weapon is not eligible for relief from deportation because his offense falls into a category of deportable offenses— “aggravated felonies” — that is different *1109from the relevant category of excludable offenses-crimes involving moral turpitude — even though he would, in fact, have been eligible for relief had he been intercepted at the border. See Komarenko, 35 F.3d at 435. On the other hand, alien B who is deportable because he committed a drug offense is eligible for relief simply because drug offenses were described with similar words in the deportation and exclusion statutes. See Tapia-Acuna, 640 F.2d at 224-25. No rational purpose can be served by this distinction. Although important policy considerations inform decisions about which offenses trigger deporta-bility and excludability, the size, scope, and overlap of categories of deportable offenses and categories of excludable offenses reflect no rational judgment about which individuals deserve to stay in or enter the country. See generally Blake, at 102 n. 10 (noting that making § 212(c) relief depend on the “incidental overlap” between categories of excludable and deportable offenses “is exactly the sort of standard that invites arbitrary decision-making. How would the BIA determine how much overlap suffices? Would more than half the offenses underlying a ground of deportation have to fit within a particular ground of exclusion? Or would 33.333% do?”).
Moreover, there is an additional anomaly that the Blake court did not mention: The comparable grounds test is strangely at odds with how § 212(c) relief operates once it is granted.
The BIA has consistently held that when an alien receives a waiver of excludability under § 212(c) or other waiver provisions, that alien can no longer be excluded or deported solely due to the offense that made him excludable — even if there is a category of deportable crimes that applies to his offense and that is different from the category that permitted the waiver. See Matter of Balderas, 20 I. & N. Dec. 389, 392 (BIA 1991); Matter of Gordon, 20 I. & N. Dec. 52, 56 (BIA 1989); Matter of Mascorro-Perales, 12 I. & N. Dec. 228, 229-32 (BIA 1967); Matter of G —A—, 7 I. & N. Dec. 274, 275-76 (BIA 1956); see generally Molina-Amezcua v. INS, 6 F.3d 646, 647-48 (9th Cir.1993) (per curiam).5 So, in other words, relief under § 212(c) is itself offense-specific, not ground-specific, and the BIA is thus entirely inconsistent in its application of ground-specific and offense-specific analysis.
The result of this anomaly is, once again, inexplicable distinctions in the treatment of similarly situated individuals: As between two individuals who would be deported for the same aggravated felony, alien C who had received a waiver at the border for that offense is insulated from deportation for the offense on any ground, including on the aggravated felony ground that did not give rise to the waiver; alien D, who remained here, is deportable as an aggravated felon because of the categorical mismatch. In other words, the categorical approach is applied to one but not the other, resulting in an arbitrary distinction.
H.
There is an additional reason I would reconsider Komarenko, aside from the considerations that it cannot be reconciled with Tapia-Acuna and creates additional irrational classifications: Although the Supreme Court has not directly addressed the issue in this case, it has assumed a premise consistent only with the offense-specific approach of the Second Circuit.
INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) observed that “[t]he extension of § 212(c) relief to the *1110deportation context has had great practical importance, because deportable offenses have historically been defined broadly.” Id. at 295, 121 S.Ct. 2271. As an example of the crimes that could be waived under § 212(c), the Court cited a particularly large and growing category of deportable offenses: aggravated felonies. Id. at 295 & n. 4, 121 S.Ct. 2271. Yet, it is precisely this category of offenses that Matter of Blake and Komarenko are most likely to render unwaivable.
Aggravated felonies will most often fail the comparable grounds test. Although the category includes numerous crimes for which an arriving alien could be excluded, the term “aggravated felony” never appears as a ground for exclusion. Furthermore, the category of aggravated felonies, as well as the subcategories enumerated in the statute, see 8 U.S.C. 1101(a)(43), imprecisely overlap with the most similar category of excludable offenses: crimes involving moral turpitude. See Blake, 23 I. & N. Dec. at 727-28 & n. 3. But see Matter of Meza, 20 I. & N. Dec. 257, 259 (BIA 1991) (concluding that one set of aggravated felonies — drug trafficking crimes' — satisfy the comparable grounds test because those crimes fell under a subset of aggravated felonies that was enumerated in statute and which would be mostly “encompassed within the scope of’ a category of excludable offenses).6
As the Supreme Court observed six years ago, the availability of § 212(c) relief has had a profound impact on resident aliens who face deportation. St. Cyr, 533 U.S. at 295, 121 S.Ct. 2271. Despite its unavailability under current law, § 212(c) continues to provide a vital lifeline for qualifying aliens. In reducing the availability of § 212(c) relief, Matter of Blake severely, unnecessarily, and unconstitutionally distorts the law of § 212(c) as the executive branch has practiced it and as we — with the unfortunate exception of Ko-marenko — have interpreted it.
In short, were I not bound by Komaren-ko, I would adopt the Second Circuit’s analysis in Blake and remand for consideration of whether Abebe is otherwise eligible and, if so, whether he should receive a grant of § 212(c) relief as a matter of discretion. Because Komarenko is the law of our circuit, I concur in the majority opinion except for Part C, and in the denial of the petition.
. Incidentally, Blake reversed the very Board of Immigration Appeals ("BIA”) precedential opinion to which the majority in this case defers. See Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005).
. But for Komarenko, I might well consider deciding the statutory and regulatory issues as well differently than does the majority. Where there is a substantial constitutional issue — as there surely would be in this case but for Komarenko — there is no need to defer to agency decisions on statutory and regulatory issues that, if decided in favor of the party raising constitutional claims, would avoid the need to reach the constitutional issue raised. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). With Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) thus inapplicable, the statutory and regulatory issues we decide might very well come out differently than they do.
.I use the term "ground” to refer to the categories of offenses, e.g., aggravated felonies, that are listed by name in the Immigration and Nationality Act ("INA”) as reasons to deport or exclude an alien. "Offenses” — the specific crimes that aliens commit or for which they are convicted — are not listed by name in the INA. Rather, "offenses” can make an alien deportable or excludable if the offenses fall under a ground of deportation or excludability.
. To the extent that Komarenko is concerned with the propriety of the court’s determination in the first instance of what constitutes a crime involving moral turpitude, it is at least *1108arguable that Komarenko applies only to cases in which it is not clearly established that the alien's crime constitutes a crime involving moral turpitude, or some other excludable offense. I nevertheless concur in the majority opinion because I believe its reading of Ko-marenko as not so limited is the better one. In addition to discussing the proper role of this- court, Komarenko rests on an equal protection analysis that holds distinctions among classes of aliens who have committed the same crime not arbitrary if based on differing statutory categories. 35 F.3d at 435. While I disagree with that holding, it is fully applicable here and sufficient to resolve the equal protection issue.
. By the same token, a § 212(c) waiver does not extend to later crimes committed by the same alien, even if they fall within the same category of offenses for which the alien received the earlier waiver. See Balderas, 20 I. & N. Dec. at 393.
. This case involves an aggravated felony that is identified in the statute as a subcategory of aggravated felonies. 8 U.S.C. § 1101 (a)(43)(A) (defining sexual abuse of a minor as an aggravated felony). There is no ground of excludability that is as narrowly defined as this subcategory of aggravated felonies. Furthermore, as the BIA noted, the subcategory of aggravated felonies that includes sexual abuse crimes includes offenses that could never serve as the basis for exclusion. Blake, 23 I. & N. Dec. at 727-28 & n. 3. Neither the majority opinion nor the BIA opinion has addressed the application of Ko-marenko and the comparable grounds test to situations in which the subcategory of aggravated felonies into which an alien’s deporta-ble offense falls is entirely subsumed by a category of excludable offenses.