Paulo v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO REYES PAULO, III, 

Petitioner, No. 07-71198

v.

 Agency No.

A039-825-666

ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 16, 2011—San Francisco, California

Filed May 4, 2011

Before: Procter Hug, Jr., William A. Fletcher, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge William A. Fletcher

5937

5940 PAULO v. HOLDER

COUNSEL

Robert B. Jobe, Law Offices of Robert B. Jobe, San Francis-

co, California, for the petitioner.

Daniel E. Goldman, James A. Hunolt, U.S. Department of

Justice, Civil Division/Oil, Washington, D.C., for the respon-

dent.

PAULO v. HOLDER 5941

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Antonio Reyes Paulo, III (“Paulo”) petitions for

review of an order of the Board of Immigration Appeals

(“BIA”) pretermitting his application for a waiver of inadmis-

sibility pursuant to the now-repealed § 212(c) of the Immigra-

tion and Nationality Act (“INA”). We hold that res judicata

binds the BIA to the final decision of the District Court for the

Northern District of California, which held that Paulo is eligi-

ble for discretionary relief under § 212(c) based on INS v. St.

Cyr, 533 U.S. 289 (2001).

We grant Paulo’s petition and remand for further proceed-

ings consistent with this opinion.

I. Background

Paulo is a native and citizen of the Philippines. He was

admitted to the United States as an immigrant on August 8,

1985. At that time he was fourteen years old. He is the son of

a lawful permanent resident mother and a U.S. citizen father.

He has a U.S. citizen daughter, born on October 28, 1997.

On September 5, 1991, Paulo was convicted in California

state court of assault with a firearm in violation of California

Penal Code § 245(a)(2). He served two years and nine

months’ imprisonment. For reasons not clear from the record,

on October 26, 1994, a California Superior Court vacated this

conviction, and Paulo pled guilty to assault with a deadly

weapon other than a firearm in violation of California Penal

Code § 245(a)(1). The new conviction was entered nunc pro

tunc as of the date of the original conviction, and the sentence

was unchanged. On March 30, 1998, Paulo pled guilty to

receiving known stolen property in violation of California

Penal Code § 496(a), and was sentenced to sixteen months’

imprisonment.

5942 PAULO v. HOLDER

On September 28, 1998, Paulo was served with a Notice to

Appear based on these criminal convictions. The Notice

charged him as removable under both INA

§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for convic-

tion of an aggravated felony, and INA § 237(a)(2)(A)(ii), 8

U.S.C. § 1227(a)(2)(A)(ii), for conviction of two crimes

involving moral turpitude not arising out of a single scheme.

The aggravated felony charge was based on his conviction for

assault with a deadly weapon, and the moral turpitude charge

was based on both criminal convictions.

Paulo conceded removability and sought relief through

withholding of removal, asylum, and the Convention Against

Torture (“CAT”). For reasons not relevant to this appeal, the

Immigration Judge (“IJ”) concluded that Paulo was not eligi-

ble for either asylum or withholding of removal, and rejected

Paulo’s CAT claim. The IJ issued an order of removal to the

Philippines on October 18, 2000. The BIA affirmed on Febru-

ary 22, 2001. This court dismissed the subsequent petition for

review for lack of jurisdiction on May 23, 2001.

On June 25, 2001, the Supreme Court decided INS v. St.

Cyr, 533 U.S. 289 (2001), a challenge to the retroactive appli-

cation of the provision of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”) that

repealed INA § 212(c), formerly codified at 8 U.S.C.

§ 1182(c). Section 212(c) gave the Attorney General the dis-

cretionary power to grant relief from deportation to certain

aliens convicted of criminal offenses. The Supreme Court

held in St. Cyr that the repeal of § 212(c) cannot be applied

retroactively to aliens who had, before the passage of IIRIRA,

reasonably relied on the availability of § 212(c) relief in

pleading guilty to offenses making them deportable. St. Cyr,

533 U.S. at 325-26. Under St. Cyr, Paulo was potentially eli-

gible for § 212(c) relief.

Approximately one year later, on November 8, 2002, a Cal-

ifornia Superior Court vacated Paulo’s conviction for receiv-

PAULO v. HOLDER 5943

ing known stolen property on the ground that his plea had

been unconstitutionally obtained. Paulo then pled guilty to

false personation under California Penal Code § 529(3). False

personation is not a crime of moral turpitude. Thus, Paulo was

no longer removable under INA § 237(a)(2)(A)(ii).

Because the time in which Paulo was entitled to file a

motion to reopen with the BIA had expired, see 8 C.F.R.

§ 3.2(c)(2) (2003), he petitioned for a writ of habeas corpus

in the District Court for the Northern District of California on

May 23, 2003. The two grounds for his petition were (1) that

he was entitled to a new removal hearing because one of the

grounds for his removal, his conviction of two crimes of

moral turpitude, was no longer valid; and (2) that he was eli-

gible for § 212(c) relief under St. Cyr.

The government objected to both grounds. As to the first

ground, the government argued that Paulo was still convicted

of an aggravated felony — assault with a deadly weapon other

than a firearm — and thus his removal order should still stand

under INA § 237(a)(2)(A)(iii). As to the second ground, the

government argued that Paulo was not covered by St. Cyr

because at the time Paulo pled guilty to assault with a firearm

in 1991, a lawful permanent resident convicted of a firearm

offense was not eligible for § 212(c) relief. The government

argued that Paulo therefore could not have relied on the avail-

ability of § 212(c) relief when he pled guilty to assault with

a firearm. The government argued that the fact that the con-

viction was changed to a non-firearm offense in 1994 was

irrelevant. Furthermore, the government noted that § 212(c)

relief was unavailable to an aggravated felon who had served

a term of imprisonment of at least five years. The government

argued (incorrectly) that Paulo had served a five-year sen-

tence. The government made no other argument against

Paulo’s eligibility for § 212(c) relief.

The district court agreed with the government that because

the removal order was based on two independent grounds, one

5944 PAULO v. HOLDER

of which remained valid, Paulo was not entitled to a new

removal hearing. However, the district court agreed with

Paulo that he was eligible for § 212(c) relief based on St. Cyr.

It agreed with the government that in 1991 a lawful perma-

nent resident convicted of a firearm offense was ineligible for

§ 212(c) relief. It concluded, however, that the 1994 plea for

assault with a deadly weapon other than a firearm was the rel-

evant plea for the purposes of St. Cyr’s reliance analysis.

When Paulo pled guilty to assault with a deadly weapon other

than a firearm, he was eligible for § 212(c) relief. The district

court observed (correctly) that Paulo had only served a two-

year and nine-month sentence, which was less than the five-

year sentence necessary to bar an aggravated felon from

§ 212(c) relief. The district court granted Paulo’s habeas peti-

tion on June 21, 2004. It ordered: “Respondents shall allow

Petitioner to apply to the Attorney General for a discretionary

waiver of deportation under former § 212(c) of the Immigra-

tion and Nationality Act.” The government did not appeal and

has not moved under Rule 60 for a modification of the district

court’s order.

In compliance with the district court’s order, the BIA

remanded the case to the IJ on December 22, 2004 to allow

Paulo to apply for § 212(c) relief. The IJ held preliminary

hearings in early 2005.

On April 6, 2005, the BIA decided In re Blake, 23 I. & N.

Dec. 722 (BIA 2005), and on June 7, 2005, the BIA decided

In re Brieva-Perez, 23 I. & N. Dec. 766 (BIA 2005). Blake

and Brieva concern the “statutory counterpart rule” of

§ 212(c). By its plain language, § 212(c) applies only to aliens

in exclusion proceedings, not removal (the post-IIRIRA term

for deportation) proceedings. See INA § 212(c) (repealed

1996) (providing eligibility for relief to “[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”). In Francis v. INS, 532 F.2d 268

PAULO v. HOLDER 5945

(2d Cir. 1976), however, the Second Circuit concluded that

there was no rational basis for treating aliens who had trav-

eled abroad and were attempting to return to the United States

differently from aliens who had never left the United States.

Based on constitutional avoidance, the Second Circuit

extended § 212(c) to cover removable as well as excludable

aliens. Id. at 273. The BIA acquiesced to Francis in Matter

of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). We agreed with

Francis in Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.

1981).

Because the application of § 212(c) to removable as well as

excludable aliens is dependent on the equal protection argu-

ment underpinning Francis, courts, including this court and

the BIA, have repeatedly held that in order for removable

aliens to be eligible for § 212(c) relief, the statutory basis for

their removability must have a statutory counterpart in the

statutory bases for excludability. See, e.g., Komarenko v. INS,

35 F.3d 432, 434 (9th Cir. 1994) (to prevent equal protection

violation, § 212(c) need only cover deportable aliens when “a

subsection of the exclusion statute is substantially identical to

a subsection of the deportation statute”); Matter of Esposito,

21 I. & N. Dec. 1, 5-9 (BIA 1995); Matter of Montenegro, 20

I. & N. Dec. 603, 604-06 (BIA 1992); Matter of Meza, 20 I.

& N. Dec. 257, 258-59 (BIA 1991). This requirement was

codified in a post-St. Cyr regulation, promulgated on Septem-

ber 28, 2004, which provides that aliens are ineligible for

§ 212(c) relief if they are removable “on a ground which does

not have a statutory counterpart in section 212 of the [INA].”

8 C.F.R. § 1212.3(f)(5).

Two related questions arise in the application of the statu-

tory counterpart rule. The first is how similar a ground for

excludability must be to a ground for removability in order to

constitute a statutory counterpart. The second is, in deciding

the similarity question, whether a court should focus on

whether a given offense is covered by both an exclusion and

a removal provision, or on whether the language of the

5946 PAULO v. HOLDER

removability provision charged is similar to that of an exclud-

ability counterpart. The BIA’s pre-Blake decisions, although

not models of clarity, strongly suggested that some similarity

in the language of the statutes is necessary, and that merely

overlapping coverage is insufficient. See Montenegro, 20 I. &

N. Dec. at 604-06; Esposito, 21 I. & N. Dec. at 5-9.

In Blake and Brieva, the BIA made clear that the question

of whether a removability category has a statutory counterpart

in an excludability category turns on the language of the pro-

visions. Blake, 23 I. & N. Dec. at 728 (stating that the ques-

tion “turns on whether Congress has employed similar

language to describe substantially equivalent categories of

offenses”). Even if there is “considerable overlap” between

two categories, if the statutory language is dissimilar then the

removable alien is not eligible for § 212(c) relief. Id. Based

on Blake, Brieva, and earlier BIA and Ninth Circuit decisions,

the government moved to pretermit Paulo’s application for a

§ 212(c) waiver on October 6, 2005.

Paulo was found removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) based on his conviction of a crime of vio-

lence for which a term of imprisonment of one year or more

was imposed, which constituted an aggravated felony under 8

U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16. The government

argued that because this removability provision has no statu-

tory counterpart in the grounds of excludability, Paulo was

not eligible for § 212(c) relief. The government also noted

that 8 C.F.R. § 1212.3(f)(5) makes clear that the statutory

counterpart rule survives St. Cyr. Paulo responded by arguing

that, based on res judicata, the IJ and the government were

bound by the district court’s conclusion that Paulo is entitled

to apply for discretionary relief under § 212(c). Paulo also

argued that Blake violates the Equal Protection Clause under

Francis and Tapia-Acuna, that Blake is a significant departure

from past BIA practice and thus cannot be applied retroac-

tively, and that the BIA’s interpretation of 8 C.F.R.

§ 1212.3(f)(5) is unreasonable and impermissible.

PAULO v. HOLDER 5947

In several hearings, the IJ expressed his dissatisfaction with

Blake, but concluded that Blake controlled Paulo’s case. On

February 28, 2006, he pretermitted Paulo’s § 212(c) applica-

tion and ordered Paulo removed. He concluded that under

Clifton v. Attorney General of California, 997 F.2d 660, 663

(9th Cir. 1993), res judicata does not apply when there has

been an intervening change in the law. He concluded that

Blake represented such a change, and that res judicata thus did

not bar the Department of Homeland Security from challeng-

ing Paulo’s eligibility for § 212(c) relief. The IJ further con-

cluded that issue preclusion did not apply because the precise

question of whether the lack of a statutory counterpart in the

grounds of excludability makes Paulo ineligible for § 212(c)

relief was not argued before the district court. The IJ also

rejected Paulo’s other claims. Because the parties agreed that

under Blake the grounds for Paulo’s removability had no stat-

utory counterpart in the grounds for excludability, the IJ

ordered that Paulo be removed. The BIA summarily affirmed.

Paulo timely petitioned for review.

The Second Circuit has since disagreed with Blake and

Brieva, concluding that the same constitutional avoidance

principles motivating Francis require that the analysis under

the statutory counterpart rule must focus on “whether [an

alien’s] underlying aggravated felony offenses could form the

basis for exclusion,” not on whether the language of the

removability and exclusion provisions is similar. Blake v.

Carbone, 489 F.3d 88, 105 (2d Cir. 2007) (emphasis added).

In Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc)

(per curiam), facing a similar claim, we took an entirely dif-

ferent approach. Instead of following either the BIA or the

Second Circuit, we overturned our decision in Tapia-Acuna

and held that providing § 212(c) relief to excludable but not

removable aliens would not violate equal protection. Id. at

1205-06. We were careful, however, to state that “nothing we

say today casts any doubt on [8 C.F.R. § 1212.3],” the post-St.

Cyr regulation providing § 212(c) relief to many removable

aliens based on the Second Circuit’s holding in Francis. Id.

5948 PAULO v. HOLDER

at 1207. Thus, in this Circuit, removable aliens are still eligi-

ble for § 212(c) relief so long as they can show, among other

things, that the ground for their removability has a statutory

counterpart in the grounds for excludability. Pascua v.

Holder, ___ F.3d ___, Nos. 08-71636, 08-72705, 2001 WL

1024434, at *2 n.2 (9th Cir. Mar. 23, 2011); 8 C.F.R.

§ 1212.3(f)(5).

The Supreme Court recently granted certiorari to resolve

the split between Blake, Francis, and Abebe. Judulang v.

Holder, ___ S. Ct. ___, 2001 WL 1457529 (April 18, 2011).

However, for reasons that we explain below, our opinion does

not depend on the outcome in Judulang. We therefore will not

delay our decision in this case to wait for the Supreme Court’s

decision.

II. Standard of Review

When the BIA affirms the IJ’s decision without opinion,

the decision of the IJ becomes the final agency determination

reviewed by this court. Lanza v. Ashcroft, 389 F.3d 917, 925

(9th Cir. 2004). The BIA’s determination of legal questions is

reviewed de novo. De Martinez v. Ashcroft, 374 F.3d 759,

761 (9th Cir. 2004).

III. Jurisdiction

We have jurisdiction under 8 U.S.C. § 1252(a)(1), which,

with exceptions not applicable here, grants us jurisdiction

over final orders of removal.

IV. Discussion

[1] The only issue on appeal is whether res judicata binds

the IJ and BIA to the district court’s holding that Paulo is enti-

tled to apply for discretionary relief under § 212(c). Under the

doctrine of res judicata, “[a] final judgment on the merits of

an action precludes the parties or their privies from relitigat-

PAULO v. HOLDER 5949

ing issues that were or could have been raised in that action”

even if that judgment “may have been wrong or rested on a

legal principle subsequently overruled in another case.” Fed-

erated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).

Res judicata bars relitigation of issues in immigration courts

already litigated in Article III courts. Matter of Fedorenko, 19

I. & N. Dec. 57, 61-63 (BIA 1984); Matter of Bowe, 17 I. &

N. Dec. 488, 489-90 (BIA 1980); cf. United States v. Utah

Constr. & Mining Co., 384 U.S. 394, 422 (1966) (“When an

administrative agency is acting in a judicial capacity and

resolve[s] disputed issues of fact properly before it which the

parties have had an adequate opportunity to litigate, the courts

have not hesitated to apply res judicata to enforce repose.”);

Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987)

(per curiam).

[2] Res judicata encompasses the doctrines of claim pre-

clusion and issue preclusion. Taylor v. Sturgell, 553 U.S. 880,

892 & n.5 (2008). Issue preclusion, the doctrine more clearly

applicable to this case, applies when: “(1) the issue necessar-

ily decided at the previous proceeding is identical to the one

which is sought to be relitigated; (2) the first proceeding

ended with a final judgment on the merits; and (3) the party

against whom [issue preclusion] is asserted was a party or in

privity with a party at the first proceeding.” Hydranautics v.

FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000) (internal

quotation marks omitted). The government makes two argu-

ments. First, it argues that these requirements are not met.

Second, it argues that, assuming these requirements are met,

Blake and Brieva constitute new law such that res judicata

does not apply. We address these arguments in turn.

A. Applicability of Issue Preclusion

The government does not contest that the habeas proceed-

ing in district court ended with a final judgment on the merits,

nor does it contest that it was a party to that proceeding. The

government argues, however, that the issue decided at the pre-

5950 PAULO v. HOLDER

vious proceeding is not identical to the one sought to be reliti-

gated. Specifically, the government argues both that the

statutory counterpart question was not raised in the district

court, and that the only issue resolved by the district court was

that Paulo was entitled to apply for § 212(c) relief in the nar-

row sense of filing an application. We reject both of these

arguments.

[3] The government is correct that the question of whether

the statutory counterpart rule made Paulo ineligible for

§ 212(c) relief was not raised in the district court. The govern-

ment could have made an argument addressed to this ques-

tion, but it did not. The fact that a particular argument against

Paulo’s eligibility was not made by the government and not

addressed by the district court does not mean that the issue of

Paulo’s eligibility for § 212(c) relief was not decided. See

Medina v. INS, 993 F.2d 499, 503 n.15 (5th Cir. 1993). Issue

preclusion is designed to “bar[ ] ‘successive litigation of an

issue of fact or law actually litigated and resolved in a valid

court determination.’ ” Taylor, 553 U.S. at 892 (quoting New

Hampshire v. Maine, 532 U.S. 742, 748 (2001)). If a party

could avoid issue preclusion by finding some argument it

failed to raise in the previous litigation, the bar on successive

litigation would be seriously undermined. See 18 James Wm.

Moore et al., Moore’s Federal Practice § 132.02[2][c] (3d ed.

2010) (“If a new legal theory or factual assertion raised in the

second action is relevant to the issues that were litigated and

adjudicated previously, the prior determination of the issue is

conclusive on the issue despite the fact that new evidence or

argument relevant to the issue was not in fact expressly

pleaded, introduced into evidence, or otherwise urged.”). The

issue sought to be relitigated in this case is Paulo’s eligibility

for § 212(c) relief, which was decided in the previous pro-

ceeding by the district court.

[4] The government’s argument that the district court’s

order entitled Paulo only to file an application for relief, and

did not entitle him to have his application evaluated according

PAULO v. HOLDER 5951

to the criteria for granting such relief, is also without merit.

The district court ordered that the government “shall allow

Petitioner to apply to the Attorney General for a discretionary

waiver of deportation under former § 212(c) of the Immigra-

tion and Nationality Act.” Although the government allowed

Paulo literally to file the papers constituting the application

for § 212(c) relief, it then moved for the IJ to pretermit the

application. To pretermit generally means to ignore. Black’s

Law Dictionary (9th ed. 2009). The word “pretermit” “is used

by the immigration court and the Board of Immigration

Appeals whenever an alien is found ineligible to apply for

some form of relief.” Gonzalez-Balderas v. Holder, 597 F.3d

869, 870 (7th Cir. 2010).

[5] It is impossible to read the district court’s order as

requiring the government to allow Paulo to file the papers

constituting a § 212(c) application, but then allowing the IJ

and the BIA to ignore that application. Paulo could have filed

a § 212(c) application that would have been pretermitted even

before he filed his habeas petition. The district court clearly

concluded that Paulo is eligible for § 212(c) relief, and

ordered the government to proceed before the immigration

courts based on its conclusion that Paulo was eligible. That

does not mean that the district court required that Paulo be

granted relief. But it does mean that the district court required

that his application for § 212(c) relief be considered on the

merits.

[6] We conclude that the requirements for issue preclusion

are satisfied and that, barring an exception to res judicata, the

government cannot relitigate Paulo’s eligibility for § 212(c)

relief.

B. Change of Law Exception to Res Judicata

The government argues that if the basic requirements for

issue preclusion are satisfied, Blake and Brieva constitute a

change of law such that principles of res judicata do not

5952 PAULO v. HOLDER

apply. The government cites Clifton v. Attorney General of

the State of California, 997 F.2d 660 (9th Cir. 1993), for this

exception. Paulo responds that Clifton created no exception to

res judicata applicable to this case, and, further, that even if

it did create such an exception, Blake and Brieva did not

change the law. We agree with Paulo that Blake and Brieva

did not change the law. Thus, even assuming change of law

is an exception to res judicata, it is not applicable here.

[7] In our recent en banc decision in Abebe, we strongly

suggested, if not directly held, that Blake and Brieva do not

constitute a change of law. One of the petitioner’s arguments

in that case was that Blake and Brieva represented “new

rules” and thus could not be applied retroactively. Abebe v.

Gonzales, 493 F.3d 1092, 1105 (9th Cir. 2007), vacated, 514

F.3d 909 (9th Cir. 2008). The three-judge panel rejected this

argument “for the simple reason that Blake and Brieva do not

represent a change in the law.” Id.; see also id. at 1102

(“[T]he BIA has not recently changed course but rather has

maintained a consistent position for many years.”). The panel

noted that the BIA’s approach has been settled “[s]ince at

least the 1970s.” Id. at 1105. Although the en banc court did

not address this argument in great detail, it did “reject peti-

tioner’s due process retroactivity argument,” and cited to the

panel’s analysis. Abebe, 554 F.3d at 1208 n.7. Thus the en

banc court in Abebe appears to have concluded that Blake and

Brieva did not change the law. The Second Circuit has

reached the same conclusion. Blake, 489 F.3d at 98-99 (reject-

ing petitioner’s retroactivity argument and concluding that

Blake “has not [changed the law]” and “does nothing more

than crystallize the agency’s preexisting body of law”).

[8] Even if this court’s en banc decision in Abebe did not

resolve this question, it is clear to us that Blake and Brieva did

not effect a change of law. The statutory counterpart rule has

existed for at least thirty years. See, e.g., Matter of Wadud, 19

I. & N. Dec. 182, 184 (BIA 1984) (“[T]he Board has consis-

tently held that section 212(c) can only be invoked in a depor-

PAULO v. HOLDER 5953

tation hearing where the ground of deportation charged is also

a ground of inadmissibility.”). It has been applied in this court

for at least twenty years. See Cabasug v. INS, 847 F.2d 1321,

1325-26 (9th Cir. 1988).

[9] Although Blake and Brieva represent the BIA’s clearest

statements on the issue, the BIA has regularly focused on the

language of the excludability and removability provisions in

applying the statutory counterpart rule rather than the overlap

in coverage between excludability and removability provi-

sions. For example, in In re Jimenez-Santillano the BIA “re-

ject[ed] the respondent’s contention that excludability under

section 212(a)(6)(C)(i) of the Act for fraud or willful misrep-

resentation of a material fact before an immigration official to

procure an immigration benefit . . . is comparable to deporta-

bility under section 241(a)(3)(B)(iii) for criminal convictions

for document fraud or misuse under 18 U.S.C. § 1546(a).” 21

I. & N. Dec. 567, 573 (BIA 1996). The Board stated that its

“focus ‘is not whether the deportable alien’s particular offense

. . . could form the basis for a ground of exclusion and there-

fore be waivable; rather, the focus is whether the ground of

deportation against the alien has a comparable ground of

exclusion.’ ” Id. (quoting Esposito, 21 I. & N. Dec. at 7)

(emphasis added). We similarly held, ten years before Blake,

that § 212(c) relief is only available if “a subsection of the

exclusion statute is substantially identical to a subsection of

the deportation statute.” Komarenko, 35 F.3d at 434 (empha-

sis added). Neither the BIA nor this court has ever held, or

even suggested, that the relevant question is whether, irre-

spective of the language of the provisions, the conviction

making the alien removable also makes the alien excludable.

Blake and Brieva therefore did not change the law.

Conclusion

We conclude that res judicata binds the BIA and the IJ to

the district court’s conclusion that Paulo is eligible for

§ 212(c) relief. For the purposes of Paulo’s § 212(c) applica-

5954 PAULO v. HOLDER

tion, the government, the BIA, and the IJ are to proceed based

on Paulo’s eligibility for § 212(c) relief. Thus, all that remains

is for the BIA and the IJ to “balance the adverse factors evi-

dencing an alien’s undesirability as a permanent resident with

the social and humane considerations presented in his behalf

to determine whether the granting of section 212(c) relief

appears in the best interests of this country.” Matter of Marin,

16 I. & N. Dec. 581, 584 (BIA 1978).

We grant the petition and remand for further proceedings

consistent with this opinion.

PETITION GRANTED; REMANDED.