Zamora-Mallari, Erne v. Mukasey, Michael B.

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

ERNESTO ZAMORA-MALLARI,

GERARDO MEDINA-MUNOZ,

and JOSE L. BARRAZA-IBARRA,

Petitioners,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States, Respondent.

____________

Petitions for Review of Orders of the

Board of Immigration Appeals.

Agency Nos. A43-221-786, A90-312-769 & A90-942-606

____________

ARGUED SEPTEMBER 6, 2007—DECIDED JANUARY 24, 2008

____________

Before FLAUM, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge. This opinion resolves three

separate appeals challenging orders of the Board of Immi-

gration Appeals (“Board”). The petitioners, Ernesto

Zamora-Mallari (“Mallari”), Gerardo Medina-Munoz

(“Munoz”), and Jose Luis Barraza-Ibarra (“Ibarra”), all

sought waivers of removability under §212(c) of the

Immigration and Nationality Act (“INA”). The Board

denied their requests for §212(c) waivers, as well as

2 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

other motions brought by the petitioners. The petitioners

appeal. We deny the petitions for review.

I.

A. Petitioner Mallari

In 1991, Mallari, a citizen of the Philippines, entered the

United States on an immigrant visa as an unmarried son

of a United States citizen. Less than three years later,

Mallari was indicted in Illinois state court on charges of

criminal sexual abuse, aggravated criminal sexual abuse,

and sexual exploitation of a child. In 1995, Mallari pleaded

guilty to criminal sexual abuse and was sentenced to

one year probation and community service.

In September 1999, the government served Mallari

with a Notice to Appear (“NTA”) in immigration court,

charging him with removal as an alien convicted of crimi-

nal sexual abuse, an aggravated felony. Mallari requested

a waiver from removal under § 212(c). An Immigration

Judge (“IJ”) denied Mallari’s request and ordered him

removed to the Philippines; the IJ concluded that Mallari

was not eligible for a § 212(c) waiver because at the time

of his guilty plea he lacked seven years of lawful domicile,

as required by statute. Mallari appealed to the Board,

arguing that he should have been permitted to present

his application for § 212(c) relief. The government moved

to remand Mallari’s case to allow him to apply for § 212(c)

relief. The Board agreed that remand was appropriate,

noting that Mallari now possessed the seven years resi-

dency required for a § 212(c) waiver. Accordingly, the

Board remanded the case to the IJ “for further proceed-

ings consistent with this opinion.”

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 3

On remand to the IJ, Mallari submitted numerous

documents in support of his § 212(c) waiver application.

The government, however, responded that Mallari

was not eligible for the requested relief based on the

Board’s recent decision in Matter of Blake, 23 I & N Dec. 722

(BIA 2005). In Blake, the Board held that aliens charged

with deportability for having committed the aggravated

felony of sexual abuse of a minor are ineligible for relief

under § 212(c) because there is no ground of inadmissi-

bility corresponding to that ground of deportability. The

IJ denied Mallari’s request for § 212(c) relief and Mallari

again appealed to the Board.

On July 20, 2006, in lieu of a brief, Mallari filed a motion

to remand, seeking to pursue adjustment of status on

the basis of an approved relative visa petition filed by his

adult son who is a citizen of the United States. The govern-

ment opposed Mallari’s motion to remand. On September

21, 2006, the Board dismissed Mallari’s appeal, conclud-

ing that Mallari was ineligible for a waiver under § 212(c).

The Board further concluded that while Mallari might

be eligible for an adjustment of status on the basis of a

relative visa petition, he had failed to establish any dis-

cretionary considerations favoring remand and therefore

he had not met his heavy burden of proving that reopen-

ing the proceedings was warranted. Mallari appeals.

B. Petitioner Munoz

Munoz, a citizen of Mexico, was admitted into the United

States as a lawful permanent resident on October 27, 1989.

In 1990, Munoz pleaded guilty in Illinois state court to the

crime of aggravated criminal sexual abuse of a minor.

Munoz was sentenced to probation for four years, but he

4 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

violated his probation order by returning to Mexico.

Following Munoz’s probation violation, the Illinois

state court sentenced him to three years of imprisonment.

Based on his conviction, the government served Munoz

with an NTA in immigration court, charging him with

removal as an alien convicted of sexual abuse of a minor,

an aggravated felony. In May 2005, an IJ determined

that Munoz was removable, and that he was not entitled

to a § 212(c) waiver of removability. Munoz appealed to

the Board. In September 2006, the Board dismissed his

appeal, holding that Munoz was not entitled to a § 212(c)

waiver. Munoz filed an appeal with this court.

The day before oral argument, Munoz filed an Emer-

gency Motion to Hold Petition for Review in Abeyance to

allow the Board to adjudicate a motion to reopen he had

filed one week earlier with the Board. The motion to hold

in abeyance is now also before this court. In support of

his motion, Munoz attested that on August 28, 2007, he

filed a Motion to Reopen his immigration case with the

Board, seeking adjustment of status as the spouse of a

United States citizen. The government objected to Munoz’s

request to hold this appeal in abeyance, noting that pro-

ceeding with Munoz’s appeal would have no effect on

Munoz’s motion to reopen. Given that Munoz’s appeal

was fully briefed and argued, and that we are consider-

ing a purely legal question, there is no reason to further

delay adjudication of the issue presented on appeal.

Accordingly, we deny Munoz’s Motion to Hold Petition

for Review in Abeyance.

C. Petitioner Ibarra

In 1981, Ibarra, a citizen of Mexico, “entered the United

States at or near El Paso, Texas . . . without being admitted

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 5

or paroled into the United States.” IJ Decision at 2. How-

ever, he later became a lawful permanent resident on

May 18, 1990. Less than one month later, Ibarra pleaded

guilty in Illinois state court to two counts of aggravated

criminal sexual assault “based on his sexual penetration

of a child under the age of 13.”

On May 4, 1999, the Immigration and Naturalization

Service “INS” (now the Department of Homeland

Security, “DHS”) served Ibarra with an NTA. The NTA

charged Ibarra with removability from the United States as

an alien convicted of criminal sexual assault, an aggravated

felony. An IJ ordered Ibarra deported to Mexico, deter-

mining that he was statutorily ineligible for a § 212(c)

waiver. Ibarra appealed to the Board. While his appeal

was pending, the Supreme Court decided INS v. St. Cyr,

533 U.S. 289 (2001). In St. Cyr, the Supreme Court held

that aliens whose criminal convictions were obtained

through plea agreements, and who would have been

eligible for § 212(c) relief at the time of their pleas, re-

mained eligible for § 212(c) relief notwithstanding the

fact that § 212(c) had been repealed prior to the initiation

of their removal proceedings. Id. at 326. Based on St. Cyr,

the Board remanded Ibarra’s case to the INS to allow Ibarra

to apply for § 212(c) relief. On remand, an IJ determined

that Ibarra was not eligible for a § 212(c) waiver based on

the offense for which he was found removable. Ibarra

appealed to the Board. The Board dismissed Ibarra’s

appeal, agreeing with the IJ that Ibarra was not entitled

to § 212(c) relief. Ibarra appealed to this court.

While his appeal was pending before this court, Ibarra

filed a motion to reopen his case to present an application

for adjustment of status based on his marriage to a United

States citizen and his wife’s approved visa petition. The

6 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

Board denied Ibarra’s motion to reopen and Ibarra ap-

pealed that decision to this court. He also filed a motion

to reconsider both the Board’s denial of his request for

§ 212(c) relief and its denial of his motion to reopen. The

Board denied Ibarra’s motion to reconsider and Ibarra

appeals from that denial as well.

II.

On appeal, all three petitioners argue that they are

entitled to seek a waiver from removability pursuant to

§ 212(c). Mallari and Ibarra also present other issues re-

lated solely to their individual cases. We address the

§ 212(c) issue first, as to all petitioners, and then con-

sider the additional issues on appeal.

A. Section 212(c)

Historically, the government could remove a lawful

permanent resident from the United States by either

deporting them after entry under § 241 (now § 237) of the

INA, 8 U.S.C. § 1227, or by excluding them upon reentry

under § 212 of the INA, 8 U.S.C. § 1182(a). Currently,

there are forty-six grounds of exclusion, 8 U.S.C. § 1182,

and thirty-three grounds of deportation, 8 U.S.C. § 1227.

Blake v. Carbone, 489 F.3d 88, 94 (2d Cir. 2007). While

there is some overlap, not every act that renders someone

deportable makes him excludable, and vice versa. Id.

Until 1996, § 244 of the INA authorized the Attorney

General, in his discretion, to suspend the deportation of

a person who 1) maintained at least seven years of con-

tinuous physical presence in the United States (ten for

certain deportable offenses) following the commission of

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 7

the deportable offense, 2) possessed “good moral charac-

ter,” and 3) whose deportation would result in “extreme

hardship” (“exceptional and extremely unusual hard-

ship” for certain deportable offenses) “to the alien or to his

spouse, parent, or child, who is a citizen of the United

States or an alien lawfully admitted for permanent resi-

dence.” 8 U.S.C. § 1254(a)(1) & (2) (repealed 1996). Simi-

larly, § 212(c) of the INA contained a waiver provision

for those subject to exclusion, providing the Attorney

General with discretion to waive exclusion (now known

as inadmissibility) for “[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 . . . .” 8 U.S.C. § 1182(c) (repealed

1996).

By its terms, § 244 applied only to those in deportation

(now called removal) proceedings and § 212(c) applied

only to those in exclusion proceedings. See 8 U.S.C.

§ 1254(a); 8 U.S.C. § 1182(c). The disparity between the

statutes could lead to some strange outcomes. For instance,

if a lawful permanent resident left the country and upon

returning to the United States was placed in exclusion

proceedings, a § 212(c) waiver would be available. How-

ever, if the border officials failed to place the lawful

permanent resident in exclusion proceedings and in-

stead allowed reentry, and later the government instituted

deportation proceedings, a § 212(c) waiver would not

be available under the plain language of that statute.

While the latter individual could seek a § 244 waiver

from deportation, the requirements for a waiver under

that section were more stringent. Thus, a § 212(c) waiver

was more desirable. But because the returning lawful

permanent resident had been allowed reentry and was

8 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

not placed in removal proceedings, the text of § 212(c)

limited such an individual to a § 244 waiver.

To address this quirk in the system, the Board for over

sixty years considered § 212(c) waiver applications from

“lawful permanent residents who commit[ed] an

excludable offense in the United States, depart[ed] and

return[ed] to the United States after commission of the

offense, [and who] ha[d] not been put in exclusion pro-

ceedings upon return, but later end[ed] up in deportation

proceedings.” See Blake, 489 F.3d at 94. See Matter of G-A-, 7

I & N Dec. 274 (BIA 1956). In other words, since the Board’s

decision in Matter of G-A, the Board allowed cer-

tain individuals in deportation proceedings to obtain

a waiver under a statutory provision, namely § 212(c),

that by its terms did not apply.

Following the Board’s decision in Matter of G-A-, a

lawful permanent resident who had never left the United

States sought a § 212(c) waiver from the Board. See Matter

of Arias-Uribe, 13 I & N Dec. 696 (BIA 1971), aff’d sub nom.

Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir. 1972). The Board,

while recognizing that it had already expanded the

scope of § 212(c) beyond that authorized by Congress,

refused to broaden § 212(c) even further so as to allow a

waiver for those who never left the country. Arias-Uribe,

13 I & N Dec. at 698.

However, in 1976, the Second Circuit rejected the

Board’s position that a § 212(c) waiver was only available

to those individuals who had actually departed and

reentered the country. Francis v. INS, 532 F.2d 268 (2d Cir.

1976). In Francis, the INS charged the petitioner with

deportability under § 241 of the INA based on his con-

viction for a narcotics offense. Francis sought a § 212(c)

waiver, but the Board held that because Francis had never

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 9

left the United States and was being deported under

§ 241, and not being excluded under § 212(a), § 212(c) did

not apply. Francis appealed to the Second Circuit, arguing

that treating him differently than lawful permanent

residents who had departed and returned to the United

States violated the Equal Protection Clause of the Con-

stitution. The Second Circuit agreed, holding that Congress

lacked a rational justification for treating lawful permanent

residents who had traveled abroad and then returned

differently than those who had never left the country. Id.

at 273. Rather than strike the statute, though, the Second

Circuit held that the petitioner and others who “differed

from excludable lawful permanent residents only in

terms of a recent departure from the country” were en-

titled to seek a § 212(c) waiver. See Blake, 489 F.2d at 95

(explaining Francis).

The Solicitor General decided not to seek certiorari in

Francis, and the Board then acquiesced to the Second

Circuit’s decision in Francis by following the mandate

of Francis throughout the country, see Matter of Silva, 16

I & N Dec. 26 (BIA 1976), even though the Board was “not

required to accept an adverse determination by one cir-

cuit court of appeals as binding throughout the United

States.” State of Ga. Dep’t. of Med. Assis. v. Bowen, 846 F.2d

708, 710 (11th Cir. 1988). See Valere v. Gonzales, 473 F.3d 757,

760 (7th Cir. 2007) (“In In Matter of Silva, 16 I & N Dec. 26

(B.I.A. 1976), the B.I.A. adopted the Second Circuit’s

position.”). Based on Francis, immigration courts through-

out the country considered § 212(c) waiver requests from

lawful permanent residents in deportation proceedings

where the permanent resident aliens were similarly

situated to those in exclusion proceedings. See, e.g., Matter

of Silva, 16 I & N. Dec. 26. This court followed suit. Leal-

10 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

Rodriguez v. INS, 990 F.2d 939, 948-49 (7th Cir. 1993)

(holding that based on Francis’s rationale a deportable

alien may seek § 212(c) relief if the ground for deporta-

tion had a comparable ground of exclusion, but rejecting

the petitioner’s argument that all deportable aliens quali-

fied for a § 212(c) waiver).

The Board, as early as the 1970’s, began to apply a

“comparable grounds” analysis to determine if a lawful

permanent resident subject to deportation was similarly

situated to someone in exclusion proceedings. Valere,

473 F.3d at 761. The Board adopted the “comparable

grounds” test to account for the fact that a § 212(c) waiver

was only available to aliens who were “excludable” under

§212(a). Thus, an alien deportable under § 241 would be

similarly situated to an excludable alien only if the statu-

tory ground for removal had a statutory counterpart, i.e.,

a “comparable ground,” in the enumerated grounds for

excludability under § 212(a). See id. at 760. In other

words, the Board concluded that an individual subject

to removal is only allowed to seek a § 212(c) waiver if

the ground for removal is also a statutory ground for

exclusion. The Attorney General approved the “compara-

ble grounds” analysis in 1991. Matter of Hernandez-Casillas,

20 I & N Dec. 262 (BIA 1990; A.G. 1991) (holding that

§ 212(c) is not available for a ground of deportability that

is not also a waivable ground of excludability under

§ 212(a)).1

1

The Attorney General’s approval was pursuant to the author-

ity “Congress has vested in the Attorney General . . . to decide

legal questions arising under the immigration laws. See 8 U.S.C.

§ 1103(a). The Attorney General has delegated this function

(continued...)

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 11

The Board’s adoption of the “comparable grounds” test,

however, did not end the difficulties caused by applying

a statutory standard beyond the text’s scope. Rather, it

created an entirely new issue, namely how to determine

what was a “comparable” ground of excludability. One

of the next significant issues the Board confronted con-

cerned the handling of § 212(c) waiver requests made by

individuals subject to deportation for being convicted of

an aggravated felony. Section 241(a)(4)(B) of the INA

provided for deportation for those convicted of aggravated

felonies, whereas § 212(a) does not provide for exclusion

of those convicted of aggravated felonies. The Board

concluded that, rather than adopt an absolute bar to

§ 212(c) waivers for aggravated felons subject to deporta-

tion, it would look to the provision of the INA that defined

the offense as an “aggravated felony” to determine if there

was a comparable ground of excludability. In re Meza,

20 I & N Dec. 257 (BIA 1991). Accordingly, in Meza, the

Board first looked to the INA to determine the underly-

ing category of aggravated felony charged, which, in that

case, was “any illicit trafficking in any controlled sub-

stance . . . including any drug trafficking crime.” Id. The

Board then looked to § 212(a) to determine if it provided a

ground of excludability that compared to the underlying

aggravated felony. The Board concluded that § 212(a)(23),

which provided as a basis for exclusion that the convic-

tion was for “a violation of, or conspiracy to violate, any

1

(...continued)

to the Board; however, the Attorney General retains the author-

ity to review final decisions of the BIA, either upon the Attor-

ney General’s initiative or by request. See 8 C.F.R. § 3.1(h).”

Farquharson v. U.S. Att’y. Gen., 246 F.3d 1317, 1323 n.7 (11th

Cir. 2001).

12 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

law or regulation relating to the illicit possession or traffic

in narcotic drugs . . . .” see 8 U.S.C. § 1182(a)(23), provided

a comparable ground of excludability. Accordingly, the

Board concluded that Meza could seek a § 212(c) waiver. Id.

The Board’s decision in Meza left other questions

unanswered—most significantly whether the Board (and

courts) should look to the grounds for deportation

stated in the NTA, as opposed to what the INS could have

charged the alien with as a basis for excludability had the

alien sought admission. The Ninth Circuit in Komarenko v.

INS, 35 F.3d 432 (9th Cir. 1994), explored this question. In

Komarenko, the petitioner was convicted of assault with a

deadly weapon. Following his conviction, the INS began

deportation proceedings, charging Komarenko with

deportability based on being an alien convicted of a

firearms charge. Id. at 434. After the Board held that

Komarenko did not qualify for a § 212(c) waiver because

there was no comparable ground for excludability,

Komarenko filed a petition for review in the Ninth Circuit.

Komarenko argued that the Board’s ruling violated his

equal protection and due process rights and that he was

entitled to a § 212(c) waiver because “the factual basis for

his conviction, assault with a deadly weapon, could have

rendered him excludable as an alien convicted of a

crime involving moral turpitude under § 212(a)(2) of the

INA.” Id. at 435. In other words, Komarenko argued that

the court “must focus on the facts of his individual case

and conclude that because he could have been excluded

under the moral turpitude provision, he has been denied

equal protection.” Id. (emphasis in original). The Ninth

Circuit rejected Komarenko’s argument for several reasons.

First, it refused “to speculate whether the I.N.S. would

have applied this broad [moral turpitude] excludability

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 13

provision to an alien in Komarenko’s position.” Id. Second,

the court believed that looking to what an alien could

have been charged with as a basis for excludability, as

opposed to what he was charged with, “would extend

discretionary review to every ground for deportation that

could constitute the essential elements of a crime involv-

ing moral turpitude.” Id. The Ninth Circuit believed that

“[s]uch judicial legislating would vastly overstep our

limited scope of judicial inquiry into immigration legisla-

tion, and would interfere with the broad enforcement

powers Congress has delegated to the Attorney General, see

8 U.S.C. § 1103(a).” Id. (internal quotations omitted). Third,

the Ninth Circuit believed that Komarenko’s proposed

approach “would create an arbitrary distinction between

aliens whose firearms convictions rise to the level of a

crime of moral turpitude and those whose convictions do

not, and then extend discretionary review only to those

with the more serious convictions.” Id. at 435 n.2. Accord-

ingly, the Ninth Circuit held that the appropriate focus

was on the charged ground for deportation and not on

whether an alien could have been excluded under the

moral turpitude provision. See id. 435. The Ninth Circuit

then concluded that Komarenko did not qualify for a

§ 212(c) waiver, holding “that the deportation provision

for aliens convicted for firearms charges and the exclu-

sion provision for moral turpitude” are not substantially

identical. Id. at 434.

While the circuits attempted to navigate the torrents of

§ 212(c), Congress began a series of amendments to the

immigrations laws. First, in 1990, Congress amended

§ 212(c) so as to prevent the Attorney General from grant-

ing waivers to aggravated felons who had served five or

more years in prison. See Immigration Act of 1990, Pub. L.

14 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

No. 101-649, § 511(a), 104 Stat. 4978, 5052 (1990). Then in

1996, Congress eliminated § 212(c) waivers entirely 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,

1277 (1996), and later that same year repealed § 212(c)

entirely. See Illegal Immigration Reform and Immigrant

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

Stat. 3009-597 (1996).2

However, in INS v. St. Cyr the Supreme Court held

there is

nothing in IIRIRA unmistakably indicating that Con-

gress considered the question whether to apply its

repeal of § 212(c) retroactively to such aliens. We

therefore hold that § 212(c) relief remains available for

aliens, like respondent, whose convictions were ob-

2

As part of the broad structural changes to the IIRIRA, Con-

gress “dropped the concept of ‘excludability’ and now uses

the defined term of ‘inadmissibility.’ ” Xi v. U.S. I.N.S., 298 F.3d

832, 838 (9th Cir. 2002). The IIRIRA also eliminated some of

the distinctions that had existed between “deportation” and

“exclusion” proceedings and created a unified proceeding

under § 240 called “removal proceedings.” 8 U.S.C. § 1229a.

Section 240(e)(2) of the INA then defines the term “removable”

to mean an alien who is “deportable” or an alien who is

“inadmissible.” Congress also adopted § 240A(a), Cancellation

of Removal, creating a waiver from removal whether the

permanent resident was inadmissible under § 212(a) or

deportable under § 237 (which replaced the predecessor

deportation provision, § 241), but only for certain classes of

aliens, excluding those convicted of aggravated felonies. 8 U.S.C.

§ 1229B.

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 15

tained through plea agreements and who, notwith-

standing those convictions, would have been eligible

for § 212(c) relief at the time of their plea under the

law then in effect.

533 U.S. 289, 326 (2001).

Following St. Cyr, the DHS promulgated a rule to

implement St. Cyr, and at the same to time clarify the

comparable grounds test. The DHS codified the compara-

ble grounds test in 8 C.F.R. § 1212.3(f)(5), providing

that “[a]n application for relief under former section 212(c)

of the Act shall be denied if . . . [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.”

In 2005, the Board in Blake, 23 I & N Dec. 722, again

applied the comparable grounds test, as recently codified

in 8 C.F.R. § 1212.3(f)(5). In that case, the DHS charged

Blake with deportability for having an aggravated felony

conviction for sexual abuse of a minor. Blake sought a

waiver of deportability under § 212(c). The Board held

that Blake did not qualify for a § 212(c) waiver because

there was no comparable ground of inadmissibility (i.e.,

excludability) under § 212(a). The Board in Blake also

specifically rejected the petitioner’s claim that the “crime

of moral turpitude” ground for exclusion was the stat-

utory counterpart. Id. at 729.

Numerous circuits, including this one, have followed the

Board’s approach in Blake. See Valere v. Gonzales, 473 F.3d

757, 762 (7th Cir. 2007) (holding that Board’s decision

denying Valere § 212(c) relief under the reasoning of

Blake did not violate the Equal Protection clause because

“there is no statutory counterpart in § 212(a) for his crime

16 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

of indecent assault of a minor,” and therefore “Valere

is not similarly situated to an inadmissible, returning alien

who is eligible to apply for § 212(c) relief”); Soriano v.

Gonzales, 489 F.3d 909, 909 (8th Cir. 2006) (holding that

Soriano “was ineligible for a waiver of removability under

Immigration and Nationality Act (INA) § 212(c) . . . because

the ground for which he was found removable—the

aggravated felony of sexual abuse of minor—does not have

a statutory counterpart in the grounds of inadmissibility

listed in INA § 212(a). . . .”); Caroleo v. Gonzales, 476 F.3d

158, 167-68 (3d Cir. 2007) (holding that Caroleo was not

entitled to a § 212(c) waiver because Caroleo was charged

with removability for a crime of violence and there is

no statutory counterpart in § 212(a), and rejecting

Caroleo’s claim that the Board should look to the under-

lying crime of attempted murder and treat that as being

a counterpart to § 212(a)’s crime of moral turpitude).

Recently, however, the Second Circuit overruled the

Board’s Blake decision. In Blake v. Carbone, 489 F.3d 88 (2d

Cir. 2007), the four petitioners had all been charged with

removability for various criminal offenses. Specifically,

two of the petitioners had been convicted of murder,

rape, and sexual abuse of a minor; one had a federal

racketeering conviction; and the fourth was convicted of

first degree manslaughter. The Board concluded that they

were not eligible for § 212(c) waivers because there were

no statutory counterparts to the grounds of removability.

The petitioners appealed to the Second Circuit, arguing

that the moral turpitude ground of excludability was the

statutory counterpart because all aggravated felonies

involved crimes of moral turpitude. Conversely, the

government argued that the only question was whether

the ground for deportability relied upon by the DHS had

a comparable ground for exclusion. The Second Circuit

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 17

rejected both approaches, holding instead that the Board

must determine whether each petitioner’s “particular

aggravated felony offense could form the basis of exclusion

under § 212(a) as a crime of moral turpitude.” Id. at 104

(emphasis added). In reaching this conclusion, Blake

expressly “recognize[d] [its] holding [was] at odds with

that reached by several other circuits.” Id. at 103. The Blake

court then explained its reason for rejecting these deci-

sions, stating:

Were we to approve of these other courts’ formulaic

approach—limiting ourselves only to the language in

the relevant grounds of deportation and exclusion—we

would be ignoring our precedent that requires us to

examine the circumstances of the deportable alien,

rather than the language Congress used to classify

his or her status.

Id. at 104.

Since the Second Circuit’s decision in Blake, two circuits

have rejected Blake’s approach in published opinions,

specifically, the Ninth Circuit in Abebe v. Gonzales, 493

F.3d 1092 (9th Cir. 2007), and most recently the Eighth

Circuit in Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007).3 In

3

The Third Circuit has also rejected the Second Circuit’s

approach in Blake, albeit in an unpublished decision. See Birkett

v. Att’y Gen. of U.S., 2007 WL 3193530 (3d Cir. 2007). Also in an

unpublished decision the Eleventh Circuit in Palomino-Abad v.

U.S. Att’y Gen., 229 Fed.Appx. 891 (11th Cir. 2007), remanded the

case to the Board to allow the Board to reconsider its ruling

in light of the Second Circuit’s decision in Blake. In doing so,

the Eleventh Circuit stated that it was not expressing any

opinion about the petitioner’s eligibility for a § 212 waiver. In

(continued...)

18 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

Abebe, the government commenced deportation proceed-

ings against Abebe, charging that he was deportable

because he had been convicted of sexual abuse of a minor,

an aggravated felony. The Ninth Circuit, after explaining

the history of the § 212(c) issue, reaffirmed its holding

in Komarenko, that § 212(c) relief is only available in “cases

involving aliens facing deportation on a basis which ‘is

identical to a statutory ground for exclusion for which dis-

cretionary relief would be available.’ ” Abebe, 493 F.3d at

1104 (emphasis in original) (quoting Komarenko). In other

words, the Ninth Circuit looked to the actual grounds on

which an alien is found to be removable—not the possible

grounds. Id.

Most recently, the Eighth Circuit in Vue v. Gonzales, 496

F.3d 858 (8th Cir. 2007), addressed the § 212(c) issue. After

summarizing the history of the § 212(c) issue, the court

ruled that since there was no statutory counterpart to

3

(...continued)

Gutierrez-Almazan v. Gonzales, 491 F.3d 341 (7th Cir. 2007),

the petitioner sought reversal of the Board’s decision deny-

ing him § 212(c) relief because he had failed to file a timely

petition. The Board had also ruled that even if Almazan’s

petition was timely, he was not entitled to relief under § 212(c)

because he was convicted of sexual assault of a minor and there

was no comparable ground for inadmissibility. This court did

not reach the merits of the § 212(c) issue, even though Valere

would control, and instead remanded, directing the Board to

consider the petition. This court then added that on remand the

Board “may wish to reconsider its prejudice ruling in light of

the Second Circuit’s decision in Blake v. Carbone, 489 F.3d 88

(2d Cir. 2007).” Gutierrez-Almazan, 491 F.3d at 344 n.1. Gutierrez-

Almazan, however, did not take a position on the propriety of

the Second Circuit’s decision in Blake. Id.

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 19

Vue’s aggravated felony (first degree assault), Vue was

not entitled to a § 212(c) waiver. The Vue court also re-

jected the Second Circuit’s decision in Blake as contrary

to its own Eighth Circuit precedent and held that Vue

was not entitled to a § 212(c) waiver even if his aggravated

felony was also a crime of moral turpitude. Id. at 861.

Against this backdrop, we consider the petitioners’

argument that they were entitled to seek § 212(c) waivers.

Initially, the petitioners all argue that the Board

impermissibly applied 8 C.F.R. § 1212.3(f)(5) and the

Board’s decision in Blake retroactively so as to deny them

relief under § 212(c). Specifically, the petitioners argue that

the Board erred in relying on Blake and 8 C.F.R.

§ 1212.3(f)(5) in holding that they were not eligible for

§ 212(c) waivers because Blake was decided after they

pleaded guilty to sexual abuse of a minor and 8 C.F.R.

§ 1212.3(f)(5) was promulgated after their guilty pleas.

However, neither Blake nor 8 C.F.R. § 1212.3(f)(5) estab-

lished a new rule. Rather, since the 1970’s, the Board has

held that § 212(c) waivers for deportation cases were

limited to situations where there was a comparable ground

of excludability. See Valere, 473 F.3d at 762. Section

1212.3(f)(5) of the regulations also did not create a new

rule of law, but merely codified the Board’s case law.

Similarly, the Board in Blake did not establish a new rule

of law, but rather applied the previously well-established

comparability standard in a different factual context.4

4

The petitioners all maintain on appeal that if their case had

been heard before Blake they would have qualified for § 212(c)

relief. However, as just noted, Blake merely applied the compara-

ble basis test to a new factual scenario. If one of these petition-

(continued...)

20 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

Therefore, Blake and 8 C.F.R. § 1212.3(f)(5) did not retroac-

tively apply a new rule of law to the petitioners. See Valere,

473 F.3d at 761 (rejecting the argument that § 1212.3(f)(5)

impaired petitioner’s right to a § 212(c) waiver because

he “never had any right to § 212(c) eligibility. . . . Section

1212.3(f)(5) is simply the agency’s codification of this

preexisting, judicially created rule”); Vue, 496 F.3d at 863

(stating that “8 C.F.R 1212.3(f)(5) merely codifies estab-

lished law”); see also Blake, 489 F.3d at 98-99 (noting that

“[t]he statutory counterpart rule does nothing more than

crystallize the agency’s preexisting body of law and

therefore cannot have an impermissible retroactive effect”).

In a somewhat related argument, the petitioners also

claim that the government impermissibly retroactively

denied them § 212(c) waivers for having committed an

“aggravated felony” because at the time they pleaded

guilty to sexual abuse, sexual abuse did not constitute

an “aggravated felony.” The petitioners point out that it

was only after Congress passed IIRIRA that sexual abuse

was defined as an “aggravated felony.” However, in

passing IIRIRA, Congress expressly provided “that the

amended definition of ‘aggravated felony’ should be

applied to any and all criminal violations committed by an

alien after entry into the United States, regardless of

whether they were committed before or after the

amended definition went into affect.” Flores-Leon v. INS,

272 F.3d 433, 439 (7th Cir. 2001).

4

(...continued)

ers’ cases had come before Blake, that case would be the “Blake”

case that stood for the proposition that an alien convicted of

sexual abuse of a minor does not qualify for a § 212(c) waiver

because there is no comparable ground of excludability.

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 21

Moreover, as the Second Circuit explained in Blake,

such claims of impermissible

retroactivity by petitioners Blake and Singh are curi-

ous. Each pleaded guilty to a crime that was not a

deportable offense when they entered their pleas. Blake

pleaded guilty to sexual abuse of a minor in 1992 but

did not become deportable until 1996, when IIRIRA

amended the definition of an aggravated felony

to include sexual abuse of a minor. See 8 U.S.C.

§ 1101(a)(43). Singh similarly pleaded guilty to murder

in 1986 but did not become deportable until the pas-

sage of the AEDPA. To say Blake and Singh relied on

the law in effect at the time of their guilty plea is

illogical; neither would have been deportable at the

time of their plea, making it impossible for them to

even think they would need a § 212(c) waiver to stay

in the country.

Blake, 489 F.3d at 99 n.8.

Similarly, in this case, because at the time the petitioners

pleaded guilty to sexual abuse it was not a deportable

offense, they could not have pleaded guilty in reliance on

the availability of a § 212(c) waiver since they had no

need for a waiver. The petitioners’ real complaint is that

they pleaded guilty to offenses that were not deportable at

the time of their pleas. However, because Congress ex-

pressly made the new definition of “aggravated felony”

retroactive, the petitioners cannot challenge the retro-

activity of that definition. See Flores-Leon, 272 F.3d at 438-

39 (holding that “Congress has clearly manifested an intent

to apply the amended definition of ‘aggravated felony’

retroactively”).

Next, the petitioners claim that the Board’s decisions

holding them ineligible for § 212(c) waivers violate the

22 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

Supreme Court’s holding in St. Cyr. As explained above,

in St. Cyr the Supreme Court held that § 212(c) relief

remains available to aliens whose convictions were ob-

tained through plea agreements and who, notwithstand-

ing those convictions, would have been eligible for § 212(c)

waivers at the time of their pleas under the law then in

effect. St. Cyr, 533 U.S. at 326. However, for St. Cyr to

benefit the petitioners, the petitioners must show that at

the time of their pleas they were entitled to § 212(c) relief.

As explained above, since at least 1979 the government

has denied § 212(c) waivers to those subject to deport-

ability, absent a comparable ground in § 212(c). Thus,

unless there is a comparable ground of inadmissibility

under § 212(a), St. Cyr is inapplicable.

That then leads to petitioners’ argument that because

their convictions for sexual abuse of a minor are crimes

of moral turpitude, they qualify for § 212(c) waivers, and

therefore denying them the right to apply for such

waivers violates St. Cyr and their equal protection rights. In

support of their position, the petitioners rely on the Second

Circuit’s decision in Blake, overturning the Board’s Blake

decision. This court, however, rejected that argument in

Valere, and we need a compelling reason to overturn circuit

precedent, such as a Supreme Court mandate or a new

statute. Santos v. United States, 461 F.3d 886, 891 (7th Cir.

2006).

The petitioners initially contend that Valere is not con-

trolling because the petitioner in that case did “not directly

challenge the [Board’s] conclusion in Blake that the crime

of sexual abuse of a minor has no statutory counterpart in

§ 212(a).” See Valere, 473 F.3d at 761. That argument,

however, ignores the fact that Valere presented an equal

protection argument that required this court to consider

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 23

the validity of Blake and the statutory counterpart test.

Specifically, in Valere, the petitioner claimed “that applica-

tion of the statutory counterpart requirement of

§ 1212.3(f)(5) violates his equal protection rights.” Id. To

address Valere’s equal protection argument, this court

needed to first determine if Valere was similarly situated to

an inadmissible alien, and that determination rested on the

validity of the statutory counterpart test and Blake. In

Valere, this court held that § 1212.3(f)(5) was “simply the

agency’s codification of this preexisting judicially

created [statutory counterpart] rule.” Id. at 761. We fur-

ther held that “[a]lthough the Blake decision marked the

first time the [Board] applied the rule to the crime of

sexual assault of a minor, the rule itself is not new.” Id.

This court then concluded that “Valere’s crime of indecent

assault of a minor—like Blake’s crime of sexual abuse of

a minor—had no statutory counterpart in § 212(a) at the

time Valere pleaded guilty.” Id. We further held that

because there was “no statutory counterpart in § 212(a) for

his crime of indecent assault of a minor, Valere is not

similarly situated to an inadmissible, returning alien

who is eligible to apply for § 212(c) relief.” Id. at 762.

Therefore Valere’s equal protection challenge failed. Id.

Thus, contrary to the petitioners’ argument, Valere did

consider the validity of the statutory counterpart test, as

well as Blake’s holding that the crime of moral turpitude

category did not qualify as a counterpart, and Valere

controls.

The petitioners also claim that we should overturn

our decision in Valere because it was based on the Board’s

decision in Blake, which the Second Circuit recently over-

turned. However, as the Second Circuit recognized in Blake,

its holding conflicts with every other circuit that has

24 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

confronted the issue. See Blake, 489 F.3d at 103. See, e.g.,

Avilez-Granados v. Gonzales, 481 F.3d 869, 872 (5th Cir.

2007)5; Caroleo v. Gonzales, 476 F.3d 158, 168 (3d Cir. 2007);

Kim v. Gonzales, 468 F.3d 58, 62 (1st Cir. 2006); Komarenko

v. INS, 35 F.3d 432 (9th Cir. 1994). Since Blake, in published

opinions, two circuits have reaffirmed their earlier hold-

ings and rejected the Second Circuit’s approach in Blake. See

Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007); Vue v.

Gonzales, 496 F.3d 858 (8th Cir. 2007). A third circuit has

rejected Blake in an unpublished order. See Birkett v.

Attorney General of U.S., 2007 WL 3193530 (3d Cir. 2007).

Thus, the weight of precedent supports our holding in

Valere.

Additionally, we find the reasoning of the Ninth Circuit

in Komarenko, as recently reaffirmed in Abebe, particularly

persuasive. As the Ninth Circuit explained, if courts

were to look beyond the charged grounds of deportation

to the underlying criminal offense to determine whether

the criminal offense could have been treated as a crime

of moral turpitude, that would greatly expand the role

Congress assigned the judiciary in immigration cases. That

is especially true given that the precise meaning of the

term “moral turpitude” is not clearly established. We also

find the Fifth Circuit’s reasoning in Avilez-Granados, 481

F.3d 869, persuasive. In that case, the alien was charged

with removability for sexual abuse of a child. The peti-

5

The Fifth Circuit in Avilez-Granados “note[d] that two compan-

ion cases, Vo v. Gonzales, 482 F.3d 363, and Brieva-Perez v.

Gonzales, 482 F.3d 356 (5th Cir. 2007), were heard on the

same day and contain related issues and overlapping reason-

ing.”

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 25

tioner argued that there was a statutory counterpart in the

crime of moral turpitude ground of inadmissibility. The

Fifth Circuit rejected that argument, reasoning that “it is

not enough that a crime could be reclassified. There is no

textual link between sexual abuse of a child 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.” Id. at 872.

Further, we reject the Second Circuit’s reasoning in Blake

that it is inappropriate to take a “formulaic approach” that

limits the court “to the language in the relevant grounds

of deportation and exclusion.” Id. Rather, an approach

that focuses on the ground that forms the actual basis for

deportation is most appropriate given that the courts have

already expanded the scope of § 212(c) beyond its ex-

pressed coverage. As the First Circuit observed, § 212(c)

has already been “stretched beyond its language” in

response to equal protection concerns.” See Campos v. INS,

961 F.2d 309, 316 (1st Cir. 1992). Additional “judicial

redrafting would serve only to pull the statute further

from its moorings in the legislative will.” Farquharson,

246 F.3d at 1325. Moreover, “further speculative tinkering

by courts with a statute that says one thing but is sup-

posed to mean another will likely as not result in even

more confusion.” Campos, 961 F.2d at 315. While it has

been firmly established since Francis that those subject to

deportation may seek § 212(c) waivers, even though by its

own terms § 212(c) is inapplicable to deportation pro-

ceedings, we decline to further expand § 212(c) to look

beyond the actual charges of removability for purposes

of determining comparability. Accordingly, we reject the

petitioners’ argument that they qualify for § 212(a) waivers.

We further affirm our holding in Valere that there is no

26 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

equal protection violation because there is no “statutory

counterpart in § 212(a) for his crime of indecent assault

of a minor, [and thus petitioner] is not similarly situated

to an inadmissible, returning alien who is eligible to

apply for § 212(c) relief.” Valere, 473 F.3d at 762. Similarly,

in this case, because there is no “comparable ground”

of exclusion for sexual abuse of a minor, petitioners

are not similarly situated to inadmissible aliens and

therefore they also cannot establish an equal protection

violation. Likewise, because at the time of their pleas the

petitioners did not qualify for § 212(c) relief, St. Cyr does

not apply.

Finally, we note that the Board continues to believe that

its approach in Blake is appropriate, notwithstanding the

Second Circuit’s decision, as demonstrated by the Board’s

recent decision in In re Jacques, 2007 WL 2463895 (2007). In

Jacques, the respondent had sought a § 212(c) waiver. The

Board held that Jacques was ineligible for such a waiver

because the ground for removal, namely knowingly

receiving stolen property, did not have a comparable

ground of inadmissibility. The Board also held that

“whether the offense in question might also have come

under a different ground of removability, i.e., convicted

of a crime involving moral turpitude, . . . is not relevant

to the inquiry.” Id. Further, the Board declined to follow the

Second Circuit’s decision in Blake, noting that it was bound

to follow precedent from the jurisdiction in which the

appeal arises. Id. The Board added that its approach has

been followed by the Third, Fifth, Seventh and Ninth

Circuit, citing Caroleo v. Gonzales, 476 F.3d 158 (3d Cir.

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

Gonzales, 473 F.3d 757 (7th Cir. 2007); Abebe v. Gonzales, 493

F.3d 1092 (9th Cir. 2007).

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 27

B. Individual Claims

Other than his motion to hold this appeal in abeyance

and his arguments related to § 212(c), Munoz did not

present any additional arguments on appeal. Conversely,

Ibarra and Mallari present several additional arguments

on appeal. We consider their claims individually below.

1. Ibarra

As noted above, after the Board denied Ibarra’s request

for a § 212(c) waiver, Ibarra filed a motion to reopen his

case, arguing that he was eligible to adjust his status to that

of lawful permanent resident given his marriage to a

United States citizen. The Board denied Ibarra’s motion to

reopen and Ibarra filed a notice of appeal of that decision

to this court. He also filed a motion to reconsider both

the Board’s denial of his request for § 212(c) relief and

its denial of his motion to reopen. The Board denied

Ibarra’s motion to reconsider and Ibarra appeals from that

denial as well. On appeal, Ibarra argues that the Board

erred in denying his motion to reopen and his subse-

quent motion for reconsideration. The government main-

tains that we lack jurisdiction to consider Ibarra’s appeal,

as it relates to the denial of his motion to reopen and the

denial of his motion for reconsideration.6

6

The government properly acknowledges that this court has

jurisdiction over the § 212(c) waiver issue because that issue

presents both a question of law and a constitutional question.

Under § 106(a) of the REAL Act of 2005, circuit courts have

jurisdiction to review questions of law and constitutional

claims notwithstanding other jurisdictional bars. 8 U.S.C.

§1251(a)(2)(C).

28 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

We begin with the jurisdictional question. Because

Ibarra’s conviction for sexual abuse of a minor con-

stitutes an aggravated felony under the INA, this court

retains only limited jurisdiction to review a final order of

removal. See 8 U.S.C. § 1252(a)(2)(C) (providing that no

court shall have jurisdiction to review any final order of

removal against an alien who is removable for having

committed an aggravated felony). Specifically, this court

may consider only constitutional claims and questions

of law raised in proper petitions for review. See 8 U.S.C.

§ 1252(a)(2)(D); Hernandez-Alvarez v. Gonzales, 432 F.3d 763,

765 (7th Cir. 2005). Moreover, “where Congress explicitly

withdraws our jurisdiction to review a final order of

deportation, our authority to review motions to recon-

sider or to reopen deportation proceedings is thereby

likewise withdrawn.” Sarmadi v. INS, 121 F.3d 1319, 1322

(9th Cir. 1997); see also Assaad v. Ashcroft, 378 F.3d 471,

474 (5th Cir. 2004) (explaining that “just as our power to

review a final [removal] order is circumscribed by

§ 1252(a)(2)’s various jurisdiction-stripping provisions,

our ‘jurisdiction to entertain an attack on that order

mounted through filing . . . a motion to reopen’ is equally

curtailed”) (quoting Patel v. U.S. Att’y Gen., 334 F.3d 1259,

1261 (11th Cir. 2003)); Emile v. INS, 244 F.3d 183, 189 (1st

Cir. 2001) (noting that “[b]ecause [defendant] was con-

victed of an aggravated felony, we have no authority to

consider on direct review any other claim once we con-

clude that he was legitimately so classified”); Sousa v. INS,

226 F.3d 28, 34 (1st Cir. 2000) (holding that “having de-

termined that [the petitioner] is removable as an aggra-

vated felon, our authority to act in this case with respect to

the removal proceeding, including incidental rulings on

discretionary relief, is at an end”). Thus, we generally

lack jurisdiction to consider Ibarra’s challenges to the

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 29

Board’s denial of his motions to reopen and for recon-

sideration.

In response, Ibarra claims that this court has jurisdic-

tion because the Board’s denials of his motion to reopen

and motion for reconsideration were based on an incorrect

interpretation of the law. Ibarra also argues that by denying

him a hearing of his application for adjustment of status

based on his wife’s visa petition, the Board violated his

right to due process.

A “petitioner may not create the jurisdiction that Con-

gress chose to remove simply by cloaking an . . . argument

in constitutional garb . . . .” Torres-Aguilar v. INS, 246 F.3d

1267, 1271 (9th Cir. 2001). Yet that is exactly what

Ibarra seeks to do, by reformulating his arguments as

presenting legal and constitutional questions. Ibarra fails

to cite any case law that would support his position that the

denial of his motion to reopen or for reconsideration

implicates legal or constitutional principles. Rather, the

decision to grant or deny a motion to reopen is a discre-

tionary decision, even if the alien demonstrates that he is

entitled to relief. See 8 C.F.R. § 1003.2(a). In this case, the

Board denied Ibarra’s motion to reopen, finding that Ibarra

should have presented his request for adjustment of

status much earlier. This conclusion did not involve a

question of law. Nor does Ibarra present a valid con-

stitutional claim, as the due process clause does not re-

quire the Board to reopen or reconsider cases previously

decided or otherwise provide for discretionary relief. See

Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004) (holding

that “in immigration proceedings, a petitioner has no

liberty or property interest in obtaining purely discre-

tionary relief . . . and the denial of such relief therefore

cannot implicate due process”); Garcia v. Att’y Gen. of

30 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

U.S., 329 F.3d 1217, 1224 (11th Cir. 2003) (holding that

“aliens do not enjoy a constitutionally protected liberty

interest in a purely discretionary form of relief”). Accord-

ingly, this court lacks jurisdiction to consider Ibarra’s

challenges to the Board’s denial of his motion to reopen

and motion for reconsideration. Id.7

Ibarra also argues that the Board’s order stripping him

forever of his lawful permanent residence was “an exces-

sive fine” in violation of the Eighth Amendment. The

Board’s removal order, however, is not a “fine,” and thus

7

In addition to arguing that the Board violated his due pro-

cess rights by denying his motion to reopen and for reconsid-

eration, throughout his appellate briefs Ibarra makes general

claims of due process violations. See, e.g., Ibarra Brief at 16

(“Immigration Judge Cuevas violated the Petitioner’s rights to

due process in denying the request for a continuance.”); id. (“He

further erred and violated the Petitioner’s right to due pro-

cess . . . in denying him a waiver under Section 212(c) of the

INA.”); id. (“The Board erred in concluding that the Petitioner

was not eligible for a § 212(c) waiver [and] [i]n so doing, the

Board also violated the Petitioner’s right to . . . due process of

the law.”); id. at 17 (“Denying the Petitioner a hearing on his

application for adjustment of status was a further violation of his

right to due process . . . .”); id. at 20-21 (The IJ “further vio-

lated his right to due process, by allowing the government to

file its 95 pages of documents the day before the May 14, 2004

hearing.”); id. at 22 (“The Board has further violated the Peti-

tioner’s right to due process by not following its own prece-

dent.”). But other than citing the general due process require-

ment that a petitioner be provided a meaningful opportunity

to be heard, Ibarra does not develop these other due process

arguments or cite any applicable case law. Therefore, these

claims have been forfeited. See United States v. Boyle, 484

F.3d 943, 946 (7th Cir. 2007).

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 31

the Excessive Fine Clause of the Eighth Amendment does

not apply. The Cruel and Unusual Punishment Clause

is likewise inapplicable because “deportation proceedings

are not criminal and do not constitute punishment” and

thus do not “constitute ‘cruel and unusual punishment’

under the Eighth Amendment.” Flores-Leon, 272 F.3d at

440. Accordingly, Ibarra’s attempt to invoke the Eighth

Amendment fails.

2. Mallari

On appeal, in addition to the arguments raised by the

other petitioners in relation to the § 212(c) waiver issue,

Mallari contends that the law of the case doctrine re-

quired the IJ to consider his request for a § 212(c) waiver.8

As noted above, the IJ originally denied Mallari § 212(c)

relief because he lacked the requisite seven years of

residency then required for such a waiver. On appeal to

the Board, the Board remanded his case to the IJ for

consideration of Mallari’s request for a § 212(c) waiver.

Mallari argues that because the Board previously re-

manded the case to the IJ to allow him to apply for a

§ 212(c) waiver, the law of the case doctrine bars the

Board from now ruling that he is not entitled to a § 212(c)

waiver.

The law of the case doctrine generally provides that

“once an appellate court either expressly or by necessary

8

In his appellate brief, Ibarra states in passing: “The law of this

case therefore is that the Petitioner is statutorially eligible

under St. Cyr.” See Ibarra Petitioner Brief at 21. Ibarra, how-

ever, did not further develop this argument and has thus

forfeited it. See Boyle, 484 F.3d at 946.

32 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

implication decides an issue, the decision will be binding

upon all subsequent proceedings in the same case.” Key v.

Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991). The law of

the case doctrine has been applied to agency proceed-

ings. Id. See also Zhang v. Gonzales, 434 F.3d 993, 998 (7th

Cir. 2006). However, the law of the case doctrine is inap-

plicable in this case because the Board never ruled that

Mallari was entitled to a § 212(c) waiver. Rather, the Board

remanded the case to allow Mallari to seek a § 212(c)

waiver, noting that he now met the required seven years

of residency. The Board never addressed the merits of

Mallari’s petition for § 212(c) relief. Nor did the Board

address the question of whether Mallari’s basis for re-

moval had a comparable ground in § 212(a). Accordingly,

the law of the case doctrine does not apply. See Key, 925

F.2d at 1061 (holding that “the law of the case doctrine

comes into play only with respect to issues previously

determined”).

Mallari also seeks to challenge on appeal the Board’s

denial of his motion to remand. As noted above, while

Mallari’s appeal from the IJ’s denial of his request for a

§ 212(c) waiver was pending before the Board, Mallari

requested a remand to pursue adjustment of status on the

basis of an approved relative visa petition filed by his

adult son who is a United States citizen. The government

opposed Mallari’s motion to remand. On September 21,

2006, the Board dismissed Mallari’s appeal, concluding

that Mallari was ineligible for a waiver under § 212(c).

The Board further held that while he might be eligible

for an adjustment of status on the basis of a relative visa

petition, Mallari had failed to establish any discretionary

considerations favoring remand and therefore failed to

meet his heavy burden of proving that reopening the

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 33

proceedings was warranted. Mallari challenges the Board’s

denial of his motion to remand.

As with Ibarra’s motion to reopen, we lack jurisdiction to

consider Mallari’s challenge to the Board’s denial of his

motion to remand. Mallari was charged with removability

as an aggravated felon and § 1252(a)(2)(C) precludes all

judicial review, other than for constitutional and legal

claims. 8 U.S.C. § 1252(a)(2)(C). See supra at 51-52.

Mallari argues alternatively that if § 1252(a)(2)(C) acts to

bar this court from having jurisdiction over the Board’s

decision to deny his remand request, the issue is still

properly before this court pursuant to § 1252(a)(2)(D), as

an issue involving constitutional dimensions. Mallari

then posits that “[g]iven the utter lack of attention to

Mr. Mallari’s life circumstances along with the sig-

nificant error of facts contained in the Board’s decision,

it appears Mr. Mallari’s constitutional right to due pro-

cess was violated as the Board’s decision is truly void

of any discretion.” Petitioner Mallari’s Reply Brief at 10.

Again, we stress that “petitioner may not create the

jurisdiction that Congress chose to remove simply by

cloaking an . . . argument in constitutional garb . . . .”

Torres-Aguilar v. INS, 246 F.3d at 1271. Rather, a constitu-

tional claim “would at least have to be colorable” before

a court will exercise jurisdiction to review such a claim

or question. Id. “To be colorable in this context . . . the

claim must have some possible validity.” Id. (internal

quotation omitted). In this case, Mallari failed to present

even a colorable due process claim. While a permanent

resident alien is entitled to due process, such process is

provided in the form of notice of the charges against him

and a meaningful opportunity to be heard at a deportation

hearing. Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98

34 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670

(1953). In this case, Mallari received both notice and a

meaningful opportunity to be heard during the removal

proceedings. Due process does not require the Board to

provide for additional hearings on remand, and an alien

does not have a constitutionally protected interest in

receiving discretionary relief. Therefore, Mallari’s claim

that the Board erred in denying his request for remand

fails to state a colorable constitutional claim. We accord-

ingly lack jurisdiction to review that issue on appeal.

III.

In sum, we reaffirm our holding in Valere and hold

that aliens, such as those petitioning this court, charged

with removability for an aggravated felony involving

sexual abuse of a minor do not qualify for a § 212(c)

waiver under the comparable grounds test. Moreover,

because there is no comparable ground for inadmissi-

bility, petitioners are not similarly situated to those

found inadmissible under § 212(a) and therefore there is

no equal protection violation. The law of the case doctrine

is also inapplicable to Mallari’s case because the Board

never reached the merits of his § 212(c) petition. Finally,

we lack jurisdiction to review the petitioners’ challenges

to the Board’s denials of their subsequent motions. We

DENY the petitions for review.

Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 35

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-24-08