Salvatore Caroleo v. Alberto R. Gonzales, Attorney General of the United States

WEIS, Circuit Judge,

concurring.

I concur in the denial of the petition of review. Although I do not accept some portions of the majority opinion of my distinguished colleagues, I agree that the dispositive issue is the application of the comparability test, a policy adopted by the immigration authorities.

Although the test has been used for some decades, it has only recently been codified in a regulation. See 8 C.F.R. § 1003.44 , 1212.3(f)(5) (effective Oct. 28, 2004). Briefly stated, in order to qualify for a waiver under section 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182 (c), the ground of deportation must have a counterpart in section 212(a).

The substance of the inquiry has been expressed in a variety of ways, but the term “ground” has not been clearly defined by the courts. In my view, the comparability should be that between the grounds specified in INA section 237(a), 8 U.S.C. § 1227 (a), and the grounds listed in section 212(a). Therefore, the alien must first show that the underlying conviction constitutes a deportable offense under sec *169 tion 237(a) and then demonstrate the comparability of that ground with one in section 212(a).

I agree with the majority that an aggravated felony crime of violence has no statutory counterpart in section 212(a). However, as we noted in Park v. Attorney General, 472 F.3d 66, 73 (3d Cir.2006), a conviction may be categorized as both an aggravated felony and one of moral turpitude as those terms are used in the immigration law. Where a conviction does so qualify, the counterpart test should be applied to both the aggravated felony and moral turpitude grounds for deportation in section 237(a).

Petitioner argues that his conviction was one of moral turpitude that has an explicit . counterpart in section 212(a). Therefore, he contends that he is eligible for a discretionary waiver under section 212(c). He thus would have the comparability exist between the underlying conviction and section 212(a).

The petitioner’s argument is flawed. Assuming that the conviction was for a crime of moral turpitude, the next and crucial question is whether it was a ground of deportation under section 237(a). I believe this case presents a situation where the petitioner’s underlying conviction for attempted murder can be both a crime of violence and moral turpitude. 6

Although crimes of moral turpitude are often not ones that allow for easy and specific definitions, attempted murder fits neatly within the tests we formulated in DeLeon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir.2002) and Partyka v. Attorney General, 417 F.3d 408 (3d Cir.2005). There we cited vileness, depravity, and reprehensible acts deliberately committed as characteristic of moral turpitude. See, e.g., Asencio v. INS, 37 F.3d 614 (11th Cir.1994) (BIA categorized attempted murder as crime of moral turpitude).

That said, however, petitioner’s crimes do not constitute deportation grounds for moral turpitude. INA § 237(a)(2)(A)(i)(I) specifically states that “any alien who is convicted of a crime involving moral turpitude committed within five years ... after the date of admission ... is deportable.” 7 See 8 U.S.C. § 1227 (a)(2)(A)(i)(I). Because petitioner committed the crimes here on a day more than five years after originally being admitted to this country and has not left the country and been readmitted during that time, his convictions do not satisfy this provision.

Therefore, although petitioner committed crimes of moral turpitude, the government had no authority to deport him on that basis. His moral turpitude conviction could not be a “ground” for deportation, and therefore the issue of comparability with section 212(a) is simply not applicable.

Moreover, because he could not be deported on the ground of moral turpitude, there is no need for petitioner to obtain a waiver on that basis under section 212(c). In effect, he has already received the substance of that benefit because the moral turpitude deportation provision no longer applies to him since five years had elapsed following his admission. In short, he could not receive a waiver of deportation for a *170 moral turpitude conviction when the passage of time had already prevented deportation.

I agree with the majority that, although petitioner has asserted other substantial defenses, in the end the comparability issue trumps those contentions.

Accordingly, I join in the denial of the petition for review.

. The majority did not reach the question whether the petitioner’s second ground of removal for a theft offense has a statutory counterpart in INA section 212(a), but using the categorical approach it would appear that the petitioner’s theft offense would also constitute a crime of moral turpitude.

. Subsection (iii) provides that an alien who is convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct ... is deport-able. Because both convictions in this case resulted from a single incident, that provision is not applicable to this case.