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 statutory 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 proce*1214dures and substantive 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 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 permanent 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 temporarily, he could also be excluded upon return if he had committed 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 discretion of the Attorney General without regard to the provisions of paragraph (1)- through (25) and paragraphs (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 proceedings. The Board of Immigration Appeals (“BIA”) first recognized a problem with making section 212(c) relief available to excludables but not deportables in 1940, in the context of section 212(c)’s precursor statute.1 See Matter of L, 11. & N. Dec. 1 (1940). In Matter of L, the BIA held that relief under section 212(c)’s precursor was available in a deportation proceeding 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 reconsideration 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 *1215Certiorari 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, 101 S.Ct. 344, 66 L.Ed.2d 209 (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 [§ 241(a)(ll) (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 determined that due process requires that section 212(c) must be applied to deportation proceedings as well as exclusion proceedings. 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, 6 S.Ct. 1064, 30 L.Ed. 220 (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.” Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). As the Second Circuit recognized in Francis, “[Reason 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 contention that encouraging “self-deportation,” as described by the majority, would actually further the interest of saving government resources. Second, the rational reason the majority prescribes 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 consistent.
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 proceeding. Moreover, if the statute were to actually function as the majority presumes and encourage aliens to voluntarily place themselves in this posi*1216tion — a contention which I find dubious— this would increase the number of removal proceedings, 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 exclusion proceedings is the assumption that a rational Congress 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 convicted 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 rational 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 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 section 212(c) waiver prior to the enactment of IIRIRA, INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Department of Homeland Security (“DHS”) promulgated 8 C.F.R. § 1212.3 to codify the holding in St Cyr. That regula*1217tion 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 deporta-ble 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.” 8 C.F.R. § 1212.3(f)(5).5 The regulation thus proceeds on the long-standing assumption, which the majority has now overruled 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 “accordf ] 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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 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 resolution 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 section 212(c) relief because the specific offense which makes him deportable would also make him excludable. Equal protection 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 Tapiar-Acuna. Indeed, the comparable ground approach creates new problems. Just as the distinction between deportable 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 excluda-*1218ble because that same offense falls into the category “crimes involving 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 comparable grounds test, because the category “aggravated felonies” 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 excludable, but is eligible for § 212(c) relief in a deportation proceeding simply because drug offenses were described with similar words in the deportation and exclusion statutes.
This type of classification between aliens who are otherwise 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 considerations when making determinations about which offenses make an alien deport-able 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 country and which should not.
As Judge Berzon pointed out, there is one additional inconsistency 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 section 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.
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 happenstance 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 *1219in a deportation 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 proceedings using an offense-based analysis is the only constitutional 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, 640 F.2d 228, 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 enjoyment 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.
. 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).
. 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 initiate 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.
. At the risk of stating the obvious, making section 212(c) relief available 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.
.The majority responds that "it makes perfect sense to want [án 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 voluntary departure, which occurs after a deportation proceeding has been initiated. See LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998).
. The BIA relied on this regulation in affirming the denial of section 212(c) relief to Abebe.