George Simeon Cabasug, Also Known as Simeon Salum Cabasug, Jr. v. Immigration and Naturalization Service

WALLACE, Circuit Judge,

concurring:

I concur with the majority, although my analysis is somewhat different. In Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.1981) (Tapia) we held that when the basis upon which the INS seeks deportation is identical to a statutory ground for exclusion for which discretionary relief would be available, the equal protection component of the fifth amendment due process clause requires that discretionary relief be accorded in the deportation context as well. Id. at 224-25 ; accord Francis v. INS, 532 F.2d 268 (2d Cir.1976) (Francis)] see also Gutierrez v. INS, 745 F.2d 548, 550 (9th Cir.1984) (dicta). We reached this result because persons situated in a like manner must receive like treatment. We did not think it rational to distinguish between aliens who had committed the same crime on the basis of whether they traveled abroad recently, arid reach a different result depending on whether they were in a deportation or exclusion proceeding. Tapia, 640 F.2d at 225 ; see also Francis, 532 F.2d at 273 .

In this case, however, the holdings of Francis and Tapia are not applicable. The Board of Immigration Appeals (BIA) held *1328 that no discretionary relief from deportation would be available to Cabasug for a crime for which no discretionary relief from exclusion is available because the crime is not an excludable offense. Caba-sug is simply not being treated unlike any alien who is eligible for discretionary relief from exclusion.

Cabasug nonetheless argues that he has been denied equal treatment because he is being treated unlike those aliens deportable under section 1251 who nevertheless are able to obtain discretionary relief under section 1182(a) because the ground for their deportation is also a ground for exclusion. It is undeniable that Cabasug is being treated differently from this class of deportable aliens. The determinative issue, however, is whether the distinction has no rational basis — as was found to be the case with a brief border crossing in Francis and Tapia — or whether there is indeed a rational basis for the difference in treatment. See Tapia, 640 F.2d at 225 .

It seems clear that there is a rational basis for the distinction. Cabasug has committed a crime distinct and different from any of those crimes or actions that are grounds for exclusion. It is beyond dispute that Congress rationally may treat different crimes differently. One way it has done so in the immigration context has been to deny discretionary relief to certain categories of offenders. Section 1251(f)(1)(A) denies to those aliens who were Nazis or Nazi collaborators and were involved in racial, religious, ethnic, or political persecution the discretionary relief from deportation otherwise available to certain aliens excludable at entry. The very statute that is the focus of this appeal, section 1182(c), denies discretionary relief from exclusion to aliens who do not possess passports permitting them to enter another country within six months of their admission; who a consular officer or the Attorney General believes would engage in activities inimical to the public interest after entry; who adhere to certain enumerated political ideas; or who a consular officer or the Attorney General believes would engage in espionage or sedition following entry. 8 U.S.C. §§ 1182 (a)(26-29), 1182(c). Obviously, Congress may constitutionally deny discretionary relief from exclusion or deportation to some classes of aliens, like participants in genocide or practitioners of espionage, because Congress could rationally decide that discretionary relief would be undesirable for these particular classes. The equal protection component of the due process clause does not require that all deportable aliens be treated alike, no matter what they have done. Thus, I reject Cabasug’s argument that equal protection mandates that discretionary relief be available to him merely because it is available to aliens who are deportable on different grounds.

Cabasug, however, also claims that denying him discretionary relief has no rational basis because it is available to aliens convicted of “more serious crime[s]” but not to those aliens convicted of Cabasug’s “less serious” crime. This argument ignores Congress’s express purpose in passing the provision that rendered deportable persons convicted of possessing a machine gun or sawed-off shotgun. This provision was originally enacted as part of the Alien Registration Act of 1940, Title II § 20(b)(3), 54 Stat. 670 , 672, and was carried over into the Immigration and Nationality Act of 1952. See H.Rep. No. 1365, 82nd Cong., 2d Sess. (1952), reprinted in 1952 U.S. Code Cong. & Ad.News 1653,1715. It was originally enacted to enable the government to deport “gunmen and racketeers” who often were “not otherwise deportable,” Crime to Promote Overthrow of Government: Hearing Before a Subcommittee of the Committee on the Judiciary, United States Senate on H.R. 5138, 76th Cong., 3d Sess. 34-35 (1940). The “not otherwise de-portable” language appears to refer to the government’s inability to procure convictions and sentences against them for crimes of “moral turpitude” that would already have permitted their deportation under existing law. See Immigration Act of 1917 § 19, 39 Stat. 874 , 889. In essence, Congress was using possession of a machine gun or sawed-off shotgun as a method to identify a person involved in more serious organized criminal activity — a method that seems entirely reasonable in light of the uses to which such weapons are normally put and the nearly total lack of an *1329 innocent purpose for carrying one. Despite Cabasug’s contention, the crimes committed by the class of persons who carry such weapons are not, as a rule, less serious than those crimes involving “moral turpitude” which do not act as a bar to discretionary relief. Moreover, as the Congressional Hearings reveal, those who carry machine guns or sawed-off shotguns often commit other crimes for which it is difficult for the government to obtain convictions. It thus is not irrational to distinguish this class of crimes from others which do not act as a bar to discretionary relief. Although there will obviously be some cases in which a person convicted of carrying a machine gun or sawed-off shotgun will, in fact, not have committed a more serious crime, the requirement of a rational relationship does not mean that the categories chosen will describe perfectly every case. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314 , 96 S.Ct. 2562, 2567 , 49 L.Ed.2d 520 (1976). Cabasug’s second equal protection argument therefore must also fail.

I concur in affirming the decision of the BIA.