Ibrahim Koussan v. Eric H. Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0051p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

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IBRAHIM ALI KOUSSAN,

-

Petitioner,

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No. 07-4107

v.

,

>

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ERIC H. HOLDER, JR.,*

N

Respondent.

On Petition for Review from an

Order of the Board of Immigration Appeals.

No. A35 977 071.

Submitted: October 30, 2008

Decided and Filed: February 12, 2009

*

Before: MARTIN, DAUGHTREY, and KETHLEDGE, Circuit Judges.

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COUNSEL

ON BRIEF: Marisa C. Petrella, PETRELLA BROWN, Southfield, Michigan, for

Petitioner. Vanessa O. Lefort, UNITED STATES DEPARTMENT OF JUSTICE,

CIVIL DIVISION, Washington, D.C., for Respondent.

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Ibrahim Ali

Koussan appeals from the denial of his request for a waiver of inadmissibility following

the administrative determination that he should be removed to Lebanon, his native

country. Before this court, Koussan contends that the denial of the waiver under the

now-repealed section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C.

*

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric H. Holder, Jr. has been substituted

for former Attorney General Michael B. Mukasey as the respondent in this case.

1

No. 07-4107 Koussan v. Holder Page 2

§ 1182(c) (1994), was an unconstitutional denial of equal protection and due process

and, alternatively, was based upon the erroneous conclusion that applicable statutes did

not contain a ground of exclusion that was comparable to the ground on which the

petitioner’s order of removal was based.1 Koussan further asserts that the Board of

Immigration Appeals (BIA) erred by designating only a single member – rather than a

three-member panel – to hear the administrative appeal. For the reasons set out below,

we find these issues to be without merit and, therefore, deny the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Koussan, a citizen of Lebanon, entered the United States as a lawful permanent

resident in 1980 at the age of eight and has resided in this country continually since that

time. He was indicted in December 1992 on a charge that on August 17, 1992, he had

“knowingly, intentionally and unlawfully distribute[d] a mixture or substance containing

a detectable amount of cocaine, a Schedule II controlled substance; to wit:

approximately 56 grams of cocaine.” Koussan eventually pleaded guilty to the cocaine

charge on August 17, 1993, exactly one year after the commission of the offense, and

was sentenced to 15 months in prison by a judgment order dated November 18, 1993.

Two-and-one-half years later, in May 1996, an information was returned against

Koussan alleging a violation of 18 U.S.C. § 1546(a) for making a false statement in a

document required by immigration laws. Specifically, that instrument charged that “[o]n

or about November 11, 1992,” Koussan falsely stated on an application for naturalization

that he had never “been an illicit trafficker in narcotic drugs or marijuana” and that he

had never “knowingly committed any crime for which [he] ha[d] not been arrested.”

But, in fact, only three months before the November application, the petitioner had sold

the cocaine that led to his 1993 conviction, and he had actually been arrested for that

offense on September 8, 1992, a full two months before the making of the statements at

1

In the Statement of the Issues in Koussan’s appellate brief, the petitioner purports to seek review

of his claim that he was denied procedural due process by the government’s delay in issuing its order to

show cause. See Appellant’s Br. at 2. Despite the mention of the issue, however, Koussan does not argue

that contention of error, which we thus deem waived. See, e.g., Buziashvili v. Inman, 106 F.3d 709, 719

(6th Cir. 1997) (argument considered waived when listed as an issue but no argument is made in the brief

in support of the contention).

No. 07-4107 Koussan v. Holder Page 3

issue. Eventually, Koussan entered a guilty plea to the false-statement charge and was

sentenced by the district court to six months in prison for that offense.

On October 18, 1996, almost three full years after the petitioner was sentenced

for the distribution of cocaine, the Immigration and Naturalization Service (INS) (now

subsumed into the Department of Homeland Security) issued an order to show cause to

Koussan, thereby initiating deportation proceedings based upon that 1993 conviction.

In the order, the INS alleged that Koussan was removable from the United States both

because the drug-trafficking conviction qualified as an aggravated felony pursuant to the

provisions of 8 U.S.C. § 1101(a)(43)(B), see former § 241(a)(2)(A)(iii) of the INA,

8 U.S.C. § 1227(a)(2)(A)(iii), and because the conviction was for a controlled substance

offense, see former § 241(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i). Although

Koussan conceded at a January 1997 hearing that he was convicted of the distribution

charge, the INS still filed “additional charges of deportability” against Koussan on

August 27, 1997, alleging that the petitioner was also removable from this country

because he had previously been convicted “of a violation of . . . section 1546 of Title

18 (relating to fraud and misuse of visas, permits, and other admission documents).” See

former § 241(a)(3)(B)(iii) of the INA, 8 U.S.C. § 1227(a)(3)(B)(iii).

At a hearing conducted on April 28, 1998, an immigration judge found that

Koussan had been convicted previously of both distribution of cocaine and making a

false statement on a document required for immigration purposes in violation of

18 U.S.C. § 1546. The immigration judge thus concluded that the petitioner was

“removable under 241(a)(2)(B)(i) as having been convicted of a crime relating to a

controlled substance, that he’s removable under 241(a)(2)[(A)](iii) as being convicted

of an aggravated felony and, as well, he’s removable under 241(a)(3)(B)(iii) as being

convicted on a violation of Section 1546, Title 18.”

Koussan appealed that determination to the BIA, which remanded the matter to

the immigration judge for a determination of the petitioner’s eligibility for a waiver of

inadmissibility under § 212(c) of the INA, 8 U.S.C. § 1182(c), in light of the United

States Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001). Koussan

No. 07-4107 Koussan v. Holder Page 4

thereafter submitted an application for such a waiver on November 9, 2001. Finally, on

December 23, 2005, the immigration judge denied the requested relief, holding that

Board precedent, Matter of Jimenez-Santillano, 21 I&N Dec. 567 (BIA 1996), does not

recognize the availability of section 212(c) relief for an alien removable under

§ 241(a)(3)(B)(iii) of the INA “because there is no corresponding ground of

inadmissibility” should an applicant be seeking such relief upon returning to the United

States from abroad. The BIA, through a single board member, dismissed Koussan’s

subsequent appeal, declining to revisit its prior decision in Matter of Jimenez-Santillano.

The petitioner now seeks our review of that decision.

DISCUSSION

A. Standard of Review

When the BIA issues its own separate opinion after reviewing the decision of an

immigration judge, we treat that BIA ruling as the final agency determination. See

Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007). We must review all legal

determinations made in such a BIA ruling de novo, while granting substantial deference

to the BIA’s interpretation of the Immigration and Nationality Act and the INA’s

accompanying regulations. See id.

B. Waiver of Inadmissibility Under Section 212(c) of the INA

In his appeal of the BIA decision in this matter, Koussan contends that the

underlying framework supporting section 212(c) waiver determinations is

unconstitutionally restrictive and that, in any event, the petitioner satisfied the existing

requirements for a grant of such relief. The applicable provisions of the now-repealed

section 212(c) of the INA, 8 U.S.C. § 1182(c) (1994), are relatively straightforward.

Subsection (a) of section 212, as in effect prior to the repeal of subsection (c), listed

numerous classes of individuals “who are ineligible to receive visas and who shall be

excluded from admission into the United States.” (Emphasis added.) Subsection (c),

however, titled “Nonapplicability of subsection (a),” provided:

No. 07-4107 Koussan v. Holder Page 5

Aliens lawfully admitted for permanent resident [sic] 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 subsection (a) of this section

(other than paragraphs (3) [denying admission to spies, terrorists,

assassins, Communists, and Nazis, among others] and (9)(C) [denying

admission to polygamists, child abductors, and guardians of excluded

aliens]). Nothing contained in this subsection shall limit the authority of

the Attorney General to exercise the discretion vested in him under . . .

this title. The 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.

8 U.S.C. § 1182(c) (1994).2 Thus, at least initially, certain aliens who had established

a continuous domicile in the United States for at least seven years, and who had not been

convicted of an aggravated felony punished by imprisonment of at least five years, were

allowed to reenter the country after a voluntary departure despite the fact that those

individuals had previously committed crimes that would have otherwise made them

ineligible for readmission.

In 1956, the BIA issued a decision that sought to rectify an inequity that could

arise in the readmission process solely by chance. Because section 212(c) relief was

available only to aliens detained while seeking readmission into the country, the very

real possibility existed that a border official’s unauthorized failure to deny reentry to an

individual who should otherwise have been detained would exclude that individual from

later discretionary relief. In other words, if a person otherwise ineligible for readmission

somehow was granted such readmission improperly, that person would have no

protection during a subsequent deportation proceeding, while another individual who

was properly detained upon reentry by immigration officials would be allowed to

2

Pursuant to section 440(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA),

effective April 24, 1996, the final sentence of 8 U.S.C. § 1182(c) was amended to read:

This subsection shall not apply to an alien who is deportable by reason of having

committed any [aggravated felony], [controlled substance offense], [firearm offense],

or [miscellaneous crime involving espionage, sabotage, treason, etc.], or [two or more

crimes involving moral turpitude, not arising out of a single scheme of criminal

misconduct] for which both predicate offenses [were committed within five years after

the date of admission and were punishable by a sentence of one year or longer].

No. 07-4107 Koussan v. Holder Page 6

petition to remain in the country. In Matter of G--A--, 7 I&N Dec. 274 (BIA 1956), the

Board remedied that problem by extending § 212(c) relief to “lawful permanent residents

who commit an excludable offense in the United States, depart and return to the United

States after commission of the offense, have not been put in exclusion proceedings upon

return, but later end up in deportation proceedings.” Blake v. Carbone, 489 F.3d 88, 94

(2d Cir. 2007).

Despite the BIA’s expansive reading of section 212(c) in Matter of G--A--, the

Board refused in 1971 to extend the scope of the statute to a lawful permanent resident

who never left the United States. See Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA

1971), aff’d, 466 F.2d 1198 (9th Cir. 1972). Nevertheless, the Second Circuit arrived

at a contrary conclusion in Francis v. INS, 532 F.2d 268 (2d Cir. 1976). Faced with an

equal protection challenge to the differing treatment of lawful permanent residents who

departed and returned to the country and lawful permanent residents who remained

within the national borders, the court found no rational justification for such a distinction

in admissibility/removal consequences. Recognizing 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,” id. at 273, the Second Circuit concluded that section 212(c) relief should also “be

available to deportable lawful permanent residents who differed from excludable lawful

permanent residents only in terms of recent departure from the country.” Id.

The BIA followed the Second Circuit’s lead and began to address section 212(c)

requests from lawful permanent residents involved in deportation proceedings but “who

were similarly situated to persons in exclusion proceedings.” Blake, 489 F.3d at 95

(citing Matter of Silva, 16 I&N Dec. 26, 30 (BIA 1976)). As the court noted in Blake:

With the equal protection problem identified, the difficult task became

one of implementation. How to decide whether a deportee was “similarly

situated” to an excludee? Answering the question proved most

troublesome for the BIA, who ultimately settled upon the comparable

grounds test – whether the “ground of deportation charged is also a

ground of inadmissibility.” Matter of Wadud, 19 I&N Dec. 182, 184

(BIA 1984).

No. 07-4107 Koussan v. Holder Page 7

Blake, 489 F.3d at 95.

While the BIA, spurred on by the Second Circuit’s Francis decision, attempted

to develop a consistent framework for the constitutionally-mandated expansion of relief

under existing immigration law, Congress was working at cross-purposes to restrict the

availability of section 212(c) relief for deportees. As again summarized by the Second

Circuit in Blake:

In 1990, Congress amended § 212(c) to remove the Attorney General’s

discretion to grant a waiver to aggravated felons who served more than

five years in prison. See Immigration Act of 1990 (“IMMACT”), Pub.

L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (1990). Six years later,

Congress eliminated § 212(c) waivers altogether for lawful permanent

residents convicted of an aggravated felony. See Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, § 440(d),

110 Stat. 1214, 1227 (1996). That same year Congress went even

further, replacing § 212(c) with cancellation of removal, which explicitly

denies the Attorney General discretion to cancel the removal of an

aggravated felon. See [Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, § 304(b), 110 Stat.

3009-598 (1996)] codified at 8 U.S.C. § 1229b(b)(1)(C).

Id. at 96.

Even in light of these statutory restrictions, however, federal courts, including

the United States Supreme Court in St. Cyr, 533 U.S. 289, 326 (2001), held “that

§ 212(c) relief remains available for 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.” Because

Koussan entered his guilty plea to the 18 U.S.C. § 1546 false-statement-in-an-

immigration-document charge in May 1996 – prior to the April 24,1997, cutoff-date

provided in 8 C.F.R. § 1212.3(h)(2) – there is no dispute in this matter that the petitioner

may seek a section 212(c) waiver even though that statutory provision has subsequently

been repealed.

Although a lawful permanent resident in Koussan’s position is eligible to seek

section 212(c) relief, applicable regulations still provide that such relief must be denied

No. 07-4107 Koussan v. Holder Page 8

if, among other reasons, “[t]he alien is deportable under former section 241 of the Act

or removable under section 237 of the Act on a ground which does not have a statutory

counterpart in section 212 of the Act.” 8 C.F.R. § 1212.3(f)(5). Because Koussan was

indeed deportable under former section 241 of the Act,3 it was incumbent upon the

petitioner, in order to be entitled to a waiver of inadmissibility under applicable

procedures, to identify “a statutory counterpart in section 212 of the Act” to the ground

upon which the government sought to deport him.

1. Statutory Counterpart Requirement

Koussan first contends, however, that the regulatory provision requiring that

grounds for deportation have a statutory counterpart in the readmission exclusion

provisions of section 212(a) of the Act, 8 U.S.C. § 1182(a), need not be given effect by

this court. In support of that proposition, the petitioner quotes the following portion of

the Second Circuit’s opinion in Blake:

The BIA’s emphasis on similar language is strange. Congress designed

§ 212(c) to waive grounds of exclusion, not deportation. It never

contemplated that its grounds of deportation would have any connection

with the grounds of exclusion. By now it should be clear that the history

of § 212(c) relief for deportees began not with an expression of

congressional intent but rather with Francis, 532 F.2d 268. Our holding

in Francis was compelled by the Constitution. It was neither what

Congress wrote nor what Congress “intended.” Put simply, 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.

Blake, 489 F.3d at 102.

Unfortunately for Koussan, because prior reported decisions of the Sixth Circuit

hold to the contrary, this court is not in a position to adopt such reasoning and conclude

3

Section 241(a)(3)(B)(iii) of the Act, 8 U.S.C. § 1227(a)(3)(B)(iii), provides that an alien is

deportable if he or she, at any time, “has been convicted of a violation of, or an attempt or a conspiracy

to violate, section 1546 of Title 18 (relating to fraud and misuse of visas, permits, and other admission

documents).”

No. 07-4107 Koussan v. Holder Page 9

that there need not be a comparable ground of exclusion and deportation.4 In Gjonaj v.

INS, 47 F.3d 824 (6th Cir. 1995), for example, we noted, “Numerous courts have held

there must be a comparable ground of exclusion for an alien in deportation proceedings

to be eligible for section 212(c) relief. We decline to change this well-established rule.”

Id. at 827 (footnote omitted). Likewise, in Hamama v. INS, 78 F.3d 233, 238 (6th Cir.

1996), we reiterated the holding that § 212(c) relief continues to be “available only if the

grounds on which the alien is being deported have a counterpart in section 212(a)’s

conditions for exclusion” and that amendments to the immigration statutes had not

altered the law so as to “remove the ‘exclusion counterpart’ requirement.” Id.

a. Misrepresentation as Defined in 8 U.S.C. § 1182(a)(6)(C)(i)

Even though we are necessarily constrained by circuit precedent to hold that a

petitioner seeking a waiver of inadmissibility must identify a ground of exclusion that

is a counterpart or is comparable to the ground supporting deportation, we must still

independently determine whether section 212(a) of the Act does, in fact, contain such

a counterpart to 18 U.S.C. § 1546, the ground on which Koussan’s deportation rests. At

first blush, the ground for Koussan’s deportation -- a conviction under 18 U.S.C.

§ 1546(a) for fraud and misuse of visas, permits, and other documents -- appears

substantively identical to the ground for exclusion listed in section 212(a)(6)(C)(i),

8 U.S.C. § 1182(a)(6)(C)(i) -- misrepresentation of a material fact in order to procure “a

visa, other documentation, or entry into the United States or other benefit provided

under” the applicable statutory chapter. Indeed, one portion of § 1546(a) seeks to punish

anyone who “knowingly makes under oath, or . . . knowingly subscribes as true, any

false statement with respect to a material fact in any application, affidavit, or other

document required by the immigration laws or regulations prescribed thereunder.” The

making of such a knowingly false statement in an immigration document, see 18 U.S.C.

§ 1546(a), thus certainly seems comparable to a willful misrepresentation of a material

fact in an effort to procure an immigration benefit, see 8 U.S.C. § 1182(a)(6)(C)(i).

4

A panel of this court may not overrule the decision of another panel absent an inconsistent

opinion from the United States Supreme Court or an en banc reversal of our earlier position. See Salmi

v. Sec’y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).

No. 07-4107 Koussan v. Holder Page 10

The Attorney General, however, relying upon the 1996 decision of the BIA in

Matter of Jimenez-Santillano, contends that such a comparable statutory counterpart

does not in fact exist for a section 1546 conviction. The BIA made clear in Matter of

Jimenez-Santillano that it is not the specific conduct of a petitioner that must correlate

to a ground of exclusion. Rather, “[t]he essential analysis is to determine whether the

deportation ground under which the alien has been adjudged deportable has a statutory

counterpart among the exclusion grounds waivable by section 212(c).” Id., 21 I&N Dec.

at 574 (emphasis added). See also Thap v. Mukasey, 544 F.3d 674, 678 (6th Cir. 2008).

In Matter of Jimenez-Santillano, the BIA concluded “that 18 U.S.C. § 1546(a)

and the ‘willful misrepresentation’ ground of admissibility at section 212(a)(6)(C)(i) of

the Act are neither ‘comparable,’ ‘substantially identical,’ nor ‘equivalent,” id. (citations

omitted), in part because section 1546 “goes well beyond the type of fraud or

misrepresentations before an immigration officer that might underlie an alien’s

excludability under section 212(a)(6)(C)(i).” Id. at 573. Although 18 U.S.C. § 1546(a)

does prohibit some conduct constituting grounds for exclusion under section 212(a), as

the BIA explained:

18 U.S.C. § 1546(a) also encompasses more serious document fraud and

misuse offenses not contemplated by the “willful misrepresentation”

language of section 212(a)(6)(C)(i), including the crime of selling visas,

permits, and other immigration documents . . . .

The acts falling within the reach of 18 U.S.C. § 1546(a) include forging,

counterfeiting, and falsifying documents required for entry, as well as the

unauthorized possession of equipment designed for the reproduction of

such documents, regardless of whether the proscribed acts were

performed for personal use to procure an immigration benefit or merely

for personal gain, financial or otherwise. The coverage of the statute also

extends to fraud or misuse of immigration documents in furtherance of

marriage fraud schemes, and knowingly accepting, possessing, or using

fraudulent immigration documents, regardless of whether their

acceptance, possession, or use is to procure an immigration benefit.

Furthermore, the language of section 212(a)(6)(C)(i) makes absolutely

no mention of criminal convictions for document fraud or misuse.

No. 07-4107 Koussan v. Holder Page 11

Id. at 573-74 (citations omitted). Consequently, “[t]he vastly greater scope of 18 U.S.C.

§ 1546(a) is a significant factor in [the] determination that these provisions are not

‘comparable’ for section 212(c) waiver purposes.” Id. at 573.

Such a conclusion makes intuitive sense, in light of the determination that it is

not the petitioner’s actual activity resulting in an order of deportation that must find a

section 212(a) counterpart, but rather the broader ground for deportation that must prove

to be comparable to a waiver provision. If a conviction pursuant to section 1546(a) is

the applicable ground for deportation pursuant to the provisions of 8 U.S.C.

§ 1227(a)(3)(B)(iii), that ground cannot be comparable to the section 212(a)(6)(C)(i)

waiver provision because numerous violations of 18 U.S.C. § 1546(a) obviously do not

fall within the ambit of section 212(a)(6)(C)(i) of the Act. Because we grant “substantial

deference” to BIA interpretations of the INA, see Morgan v. Keisler, 507 F.3d at 1057,

we take our lead in this matter from the well-reasoned decision in Matter of

Jimenez-Santillano and hold that Koussan was not entitled to a waiver of inadmissibility

based upon his guilty plea to the charge of violating 18 U.S.C. § 1546(a).5

b. Crimes Involving Moral Turpitude Under 8 U.S.C. § 1182(a)(2)(A)(i)(I)

Again forced to concede that circuit precedent recognizes that a section 212(c)

waiver is proper only when a lawful permanent resident is deportable on a ground that

has a statutory counterpart in section 212(a), the petitioner alternatively submits that he

is entitled to consideration for a waiver of inadmissibility because the ground alleged for

his deportation – a violation of § 1546(a) -- is comparable to another ground for

exclusion – commission of a crime involving moral turpitude. See § 212(a)(2)(A)(i)(I)

of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I). The Attorney General disagrees and relies

upon BIA precedent for the proposition that the ground for deportation lodged against

Koussan includes all provisions of 8 U.S.C. § 1227(a)(3), and that parts of that statutory

5

As noted by the Attorney General in his appellate brief, “On review, Petitioner concedes that

his cocaine conviction is not at issue for purposes of a 212(c) waiver. Pet. Br. at 23 n.13. The Board did

not rely on that conviction in determining that Petitioner is not eligible for a 212(c) waiver,” Appellee’s

Br. at 25 n.12, and any discussion of that conviction or its effect on a section 212(c) waiver analysis is

beyond the scope of this appeal.

No. 07-4107 Koussan v. Holder Page 12

subsection have no counterpart within section 212(a)(2)(A)(i)(I)’s exclusion provisions

for crimes involving moral turpitude.

In support of his position, the Attorney General cites, among other rulings, the

BIA decision in Matter of Wadud, which does not identify a specific act that merits the

sought-after deportation. Instead, the BIA decision states merely that Wadud was to be

deported pursuant to section 241(a)(5) of the Act, the former version of 8 U.S.C.

§ 1227(a)(3). See Matter of Wadud, 19 I&N Dec. at 184 n.2. As such, the order of

deportation encompassed numerous possible offenses ranging from the simple failure to

inform the Attorney General of a change of address, see 8 U.S.C. § 1227(a)(3)(A), to the

felony fraud proscribed by 18 U.S.C. § 1546, see 8 U.S.C. § 1227(a)(3)(B)(iii). In light

of such generality, the BIA ruled that Wadud was not eligible for a waiver of

inadmissibility because section 212(a) did not contain a ground of inadmissibility

coextensive with the provisions of 8 U.S.C. § 1227(a)(3).

Wadud contended, however, that section 212(a)(2)(A)(i)(I), 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), excludes from admission into the country aliens convicted of

crimes involving moral turpitude, and that his fraudulent activities surely fell within that

statutory ban. Nevertheless, the BIA declined “to expand the scope of section 212(c)

relief in cases where the ground of deportability charged is not also a ground of

inadmissibility.” Matter of Wadud, 19 I&N Dec. at 185. In doing so, the Board

concluded:

Were we to hold otherwise, an anomolous [sic] situation would result in

cases where deportability is charged under section 241(a)(5) of the Act

since most of the offenses described in that section do not involve moral

turpitude. To afford section 212(c) relief only to those aliens whose

crime under section 241(a)(5) involved moral turpitude would be to

reward those guilty of a more egregious offense for their greater

culpability. We are unable to conclude that Congress intended such an

inequitable consequence to ensue from the implementation of section

212(c).

Id.

No. 07-4107 Koussan v. Holder Page 13

Whereas the government sought generally to deport Wadud pursuant to section

241(a)(5) of the Act and thus did not differentiate among the numerous offenses

encompassed by that single legislative provision, Koussan’s August 1997 “Additional

Charges of Deportability” specified that the petitioner was to answer claims that he

violated section 241(a)(3)(B)(iii) of the Act and that he was “convicted on October 24,

1996, in the United States District Court for False Statement on Document Required by

Immigration Laws for a violation of title 18, United States Code, Section 1546 relating

to fraud and misuse of visas, permits and other entry documents.” Consequently,

Koussan argues that, unlike the situation in Matter of Wadud, the petitioner’s

immigration/deportation proceedings here afford a non-speculative opportunity to

consider whether fraudulent statements made in an immigration document are

substantially similar to crimes involving moral turpitude. Matter of Wadud, contends

Koussan, is thus clearly distinguishable from the situation presented in this case and

should not serve as a basis for denying further examination of the petitioner’s claim for

relief.

Nevertheless, we must accord substantial deference to the BIA’s interpretation

of the INA and its accompanying regulations. See Morgan, 507 F.3d at 1057. Doing so,

we are constrained to agree with the Board’s ruling in Matter of Wadud that section

212(a) of the Act does not contain a ground of inadmissibility – even the ground

referring to crimes involving moral turpitude – that can be considered a statutory

counterpart to 8 U.S.C. § 1227(a)(3). See Thap, 544 F.3d at 678 - 79.

c. Equal Protection Considerations

Moreover, adoption of Koussan’s argument in this regard would require us to

side with the Second Circuit decision in Blake and align this court against every other

circuit court that has addressed the issue in a published opinion. See, e.g., Gonzalez-

Mesias v. Mukasey, 529 F.3d 62 (1st Cir. 2008), petition for cert. filed, 77 U.S.L.W.

3296 U.S. Oct. 31, 2008) (No. 08-605); Abebe v. Gonzales, 493 F.3d 1092 (9th Cir.

2007); Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007); Caroleo v. Gonzales, 476 F.3d 158

(3d Cir. 2007); Valere v. Gonzales, 473 F.3d 757 (7th Cir. 2007). Doing so would also

No. 07-4107 Koussan v. Holder Page 14

necessarily constitute an implicit adoption of Blake’s conclusion that an equal protection

analysis of such a claim inevitably leads to abandonment of the statutory counterpart

requirement of 8 C.F.R. § 1212.3(f)(5) as interpreted by most courts.

In Blake, the Second Circuit determined that it need not “defer to the BIA’s

interpretation of the statutory counterpart rule.” Blake, 489 F.3d at 100. Instead, the

court “de-linked” the concepts presented by the section 212(a) grounds of exclusion and

the statutory grounds for deportation and chose to “examine the circumstances of the

deportable alien, rather than the language Congress used to classify his or her status.”

Id. at 104. Consequently, under the Second Circuit’s equal protection mandates, if a

petitioner’s underlying offense could form the basis of a ground of exclusion if the

petitioner were seeking readmission into the United States, that petitioner would be

eligible for a section 212(c) waiver. See id. at 103-04. According to the Second Circuit,

its precedent in Francis compels no less and requires that every deportee be treated

exactly as if he or she were seeking readmission with an identical criminal history.

Koussan argues that this Second Circuit position involves a recognition that equal

protection principles require a court to examine the situation of an individual seeking

readmission into the United States and to treat a person in deportation proceedings in

exactly the same manner. If, therefore, a lawful permanent resident previously convicted

of a violation of 18 U.S.C. § 1546 were to leave the country and, upon his or her

attempted return, be allowed to seek a waiver of inadmissibility because of the prior

commission of what amounted to a crime involving moral turpitude, an individual in

deportation proceedings should be allowed to take advantage of the same waiver

provision of the immigration statutes.

In contrast, the equal protection position espoused by the BIA and by the

majority of the courts of appeals disavows this Second Circuit argument “that equal

protection requires that no distinction shall be made between permanent resident aliens

who proceed abroad and nondeparting aliens who apply for the benefits of section 212(c)

of the Act.” Valere, 473 F.3d at 762 (internal quotation marks omitted). Rather, the

countervailing argument contends:

No. 07-4107 Koussan v. Holder Page 15

[T]he requirement of a comparable ground of exclusion in § 212(a) -- a

“statutory counterpart” -- is what makes a removable, nondeparting alien

similarly situated to an inadmissible alien in the first place. If the

removable alien’s crime of conviction is not substantially equivalent to

a ground of inadmissibility under § 212(a), then the removable alien is

not similarly situated for purposes of claiming an equal protection right

to apply for § 212(c) relief.

Id.

According to this argument, “[b]ecause there is no statutory counterpart in

§ 212(a) for [Koussan’s crime of violating the provisions of 18 U.S.C. § 1546, the

petitioner] is not similarly situated to an inadmissible, returning alien who is eligible to

apply for § 212(c) relief.” Id. Consequently, Koussan’s “treatment is not different from

other aliens who face deportation for reasons that have no corresponding ground for

inadmissibility under § 212(a),” and no equal protection problem arises in this situation.

In this appeal, we are called upon in the context of Koussan’s equal protection

claim to resolve the question of whether the crimes-involving-moral-turpitude ground

of inadmissibility is a statutory counterpart to the deportation ground that is based upon

the petitioner’s prior conviction for violating 18 U.S.C. § 1546. By doing so, however,

we would necessarily engage in two questionable actions. First, a decision to align this

court with Blake would disregard Sixth Circuit precedent requiring that a ground for

deportation have a statutory counterpart in the list of grounds for exclusion before a

petitioner is eligible for section 212(c) relief. See Thap, 544 F.3d at 678; Gjonaj, 47

F.3d at 827. Clearly, the crime-involving-moral-turpitude ground for exclusion is not

a statutory counterpart for a § 1546 immigration fraud basis for deportation. As noted

by the Fifth Circuit in Avilez-Granados v. Gonzales, 481 F.3d 869, 872 (5th Cir. 2007),

“it is not enough that a crime could be reclassified. There is no textual link between [the

crime leading to initiation of deportation proceedings] and crimes involving moral

turpitude to indicate that Congress had the same class of offenses in mind when it

enacted the two provisions that must be compared.” (Emphasis added.)

Second, adoption of the analysis in Blake would further expand § 212(c) beyond

the plain meaning of that statutory provision’s terms. The unambiguous language of

No. 07-4107 Koussan v. Holder Page 16

section 212(c) clearly applies only to exclusion/readmission proceedings. In Francis,

however, the Second Circuit already “‘stretched [§ 212(c)] beyond its language’ in

response to ‘equal protection concerns.’ Additional ‘judicial redrafting would serve only

to pull the statute further from its moorings in the legislative will.’” Zamora-Mallari v.

Mukasey, 514 F.3d 679, 692 (7th Cir. 2008) (quoting Campos v. INS, 961 F.2d 309, 316

(1st Cir. 1992); Farquharson v. United States Att’y Gen., 246 F.3d 1317, 1325 (11th Cir.

2001)).

As a result, we conclude that the majority view of this issue is more in line with

the language from Sixth Circuit precedent and more defensible in light of the purpose

and history of section 212(c). We hold, therefore, that 8 U.S.C. § 1182(a)(2)(A)(i)(I) is

not sufficiently comparable to 8 U.S.C. § 1227(a)(3)(B)(iii) to be considered a statutory

counterpart to that ground for deportation.

2. Inconceivability of Statutory Counterpart

As an alternative argument, Koussan asserts that he is entitled to section 212(c)

relief because the grounds on which the government sought his removal could not

possibly have had a counterpart ground for inadmissibility. To support this claim, the

petitioner relies upon another Second Circuit decision, Bedoya-Valencia v. INS, 6 F.3d

891 (2d Cir. 1993). In Bedoya-Valencia, the court noted that the offense listed as the

ground for Bedoya-Valencia’s deportation, entry without inspection, could not possibly

have a conceivable analogue in the exclusion setting because “an excludee, by definition,

has not yet ‘entered’ the country, and hence, could not possibly have done so without

inspection.” Cato v. INS, 84 F.3d 597, 600 (2d Cir. 1996). As a result, the court

concluded “that coherence and consistency are promoted by allowing the exercise of

§ 1182(c) discretion with respect to the deportation ground of entry without inspection”

and that a “modest extension of the Francis rule” was thus justified under these limited

circumstances. Bedoya-Valencia, 6 F.3d at 897.

In Cato, however, the Second Circuit emphasized the narrowness of the

exception it had carved in Bedoya-Valencia. Cato involved a lawful permanent resident

who was convicted of a firearm offense, which also had no statutory counterpart among

No. 07-4107 Koussan v. Holder Page 17

the grounds for exclusion contained in section 212(a) of the Act. Although Cato argued

that the “inconceivability” basis for relief fashioned in Bedoya-Valencia should also be

applied in his case, the court logically concluded:

There is no question that Congress, had it so chosen, could have included

weapons offenses as grounds of exclusion; but it has not. Because a

weapons offense is not a ground of deportation that “could not

conceivably” have an exclusion counterpart, see Bedoya-Valencia, 6 F.3d

at 897, the Bedoya-Valencia reasoning does not apply. Thus, Cato is

ineligible for § 212(c) relief.

Cato, 84 F.3d at 600.

Similarly, in this case, Congress could have chosen to include felony fraud in

relation to the preparation of immigration documents as a specific ground of exclusion

in section 212(a). For reasons known only to that legislative body, however, it chose not

to do so. Koussan is thus foreclosed from seeking § 212(c) relief under the narrow

exception created by Bedoya-Valencia.

C. Necessity of Three-Member BIA Review

Koussan also asserts that his administrative appeal of the denial of section 212(c)

relief should have been heard by a three-member panel of the BIA, rather than by a

single Board member. Through its rules, the Justice Department has, however,

expressed its preference for dispositions by single Board members. In 8 C.F.R.

§ 1003.1(e), the department explains, “Unless a case meets the standards for assignment

to a three-member panel under paragraph (e)(6) of this section, all cases shall be

assigned to a single Board member for disposition.” (Emphasis added.) Pursuant to

subsection (e)(6) of the rule:

Cases may only be assigned for review by a three-member panel if the

case presents one of these circumstances:

(i) The need to settle inconsistencies among the rulings of

different immigration judges;

(ii) The need to establish a precedent construing the

meaning of laws, regulations, or procedures;

No. 07-4107 Koussan v. Holder Page 18

(iii) The need to review a decision by an immigration

judge or the Service that is not in conformity with the law

or with applicable precedents;

(iv) The need to resolve a case or controversy of major

national import;

(v) The need to review a clearly erroneous factual

determination by an immigration judge; or

(vi) The need to reverse the decision of an immigration

judge or the Service, other than a reversal under

§ 1003.1(e)(5).

8 C.F.R. §§ 1003.1(e)(6)(i)-(vi) (emphasis added). Consequently, under the plain

language of the regulation, even if one of the six criteria for three-member panel review

were presented in a particular case, the Board need not empanel a multi-member

decision-making body but may do so in its discretion. See Tapia-Martinez v. Gonzales,

482 F.3d 417, 425 (6th Cir. 2007).

Koussan argues for the exercise of that discretion in this matter “because the

Immigration Judge’s decision was no longer in conformity with the law” after the

Second Circuit’s ruling in Blake. Clearly, however, a Second Circuit opinion does not

control a proceeding arising in the Sixth Circuit. We thus have no ground on which to

hold that the Board abused its discretion in deciding how to constitute itself for review

of the immigration judge’s ruling in this case.

CONCLUSION

The law of the circuit requires us to hold that section 212(c) relief is available to

Koussan only if he can establish grounds of inadmissibility that are comparable to the

ground of removal/deportation filed against him. Because Koussan cannot do so, and

because no constitutional infirmity or abuse of discretion is otherwise evident in this

matter, we must DENY the petition for review.