# Petition for Writ of Certiorari — De la Rosa v. Holder

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1251%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 560 U.S. 903

## Text

Suprems Cour, U.8.

JOSE ERASMO DE LA ROSA,

Petitioner,
v.

ERICJ. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN MARK C. FLEMING
PAUL R. Q. WOLFSON Counsel of Record
WILMER CUTLER PICKERING MEGAN BARBERO
HALE AND DORR LLP E,\LIZABETH KENT CULLEN

1875 Pennsylvania Ave. NW WILMER CUTLER PICKERING
Washington, DC 20006 HALE AND DORR LLP
(202) 663-6000 60 State Street

Boston, MA 02109
MARIAI. CASABLANCA (617) 526-6000
CASABLANCA LEGAL GROUP
444 Brickell Ave., Suite 416
Miami, FL 33131
(305) 577-4220

QUESTION PRESENTED

For more than 25 years, the Board of Immigration
Appeals (BIA) held that a legal permanent resident
(LPR) who is deportable due to a criminal conviction
could seek a discretionary waiver of removal under
Section 212(c) of the Immigration and Nationality Act,
8 U.S.C. § 1182(c), provided that the conviction also
would have constituted a waivable basis for exclusion.
In 2005, the BIA abruptly changed course, adding a re-
quirement that the LPR be deportable under a statu-
tory provision that used “similar language” to an exclu-
sion provision. Deportable LPRs who departed and re-
entered the United States after their conviction, how-
ever, may seek Section 212(c) relief under a longstand-
ing “nunc pro tunc” procedure that does not turn on
similar language between deportation and exclusion
provisions. Thus, under the BIA’s current view, an
LPR who pled guilty to an offense that renders him
both deportable and excludable, but under provisions
that use dissimilar phrasing, will be eligible for Section
212(c) relief from deportation if he departed and reen-
tered the United States after his conviction, but ineli-
gible if he did not depart. The circuits are split three
ways on the lawfulness of the BIA’s new interpretation.

The question presented is:

Whether a lawful permanent resident who was
convicted by guilty plea of an offense that renders him
deportable and excludable under differently phrased
statutory subsections, but who did not leave the United
States between his conviction and the commencement
of removal proceedings, is categorically foreclosed from
seeking discretionary relief from removal under former
Section 212(c) of the INA.

(i)

TABLE OF CONTENTS

Page
UT LIE FRI 0 weieritscesscccrescrercecetersasusvaenisionnes 1
py UA tty 8 4g y | >: ee es vl
Ce BE EY vnccenscsiccenectsbeskenddsdcassscteraeseecn 1
Fer a EE sntisnntsnnictsnttnaciadlnldicmeivaies dade 2
CONSTITUTIONAL, STATUTORY,
AND REGULATORY PROVISIONS
FG SE ED citakcnesststsiaxcessccrieccrieane 2
FEF Us FUE ccacecesoccissnssnavenesiguasantiedseck canteen 2
BOE Fe EIT Tr vikesdasisnctnscecennscecetesnecsnaansindadéaiediicamemaaamaees 5
Fi. FPOGARiE TACOS vsicesissinsnsceinessssiorvessstenscnreereees 5
B. Availability Of Discretionary Relief
RE Bic: cncnisuacnicnsbubarennasaiiedda etna sas cacaee 6
C. The BIA Changes Course In 2005................... 13
DD, “Fa I ticeecissititeusimennunamoninn 15
EB. PROCITE TI osiscseiccsscecscserssesnvnsssiesssniensisnnses 16
REASONS FOR GRANTING THE PETI-
AP IIE si cincsocsinciasiedibecucnnan ate aaa etna aaarae 17
I. THE THREE-WAY CIRCUIT SPLIT ON THE
APPLICATION OF SECTION 212(c) To DE-
PORTABLE LEGAL PERMANENT RESIDENTS
IS DEEPLY ENTRENCHED AND THE ISSUE
PEAS BLY Fa oincsd ccncavnsankentasteeoxectvacsntonans 18
Il. THE ELEVENTH CIRCUIT AND THE BIA
INCORRECTLY AND UNCONSTITUTIONALLY
RESTRICTED THE SCOPE OF SECTION
BY IO cnvasncenasecinvacreiteies daiicdesemaradaemuameanwals 21

iV
TABLE OF CONTENTS—Continued
III. THIS CASE PRESENTS AN ISSUE OF EX-

CEPTIONAL AND CONTINUING IMPORTANCE
TO NUMEROUS LEGAL PERMANENT RESI-

Ca I IOY seessishuiinicisainnediscincammangioiasavennianiiaiiase

APPENDIX A: Opinion of the United States
Court of Appeals for the Eleventh Circuit,

GREGG FI, TG, BIO vies rscsssnersencessosovscesseenseseens

APPENDIX B: Order of the Board of Immi-

gration Appeals, dated June 10, 2008................

APPENDIX C: Oral decision of the Immigra-

tion Judge, dated March 16, 2007.............0:c000

APPENDIX D: Bond memorandum, dated July

APPENDIX E: Order of the United States
Court of Appeals for the Eleventh Circuit
denying motion to stay deportation, dated

Wr eens iadamisaceonddenns

APPENDIX F: Excerpts of the administrative
record before the Board of Immigration
Appeals:

February 15, 2005 Hearing Before Immi-

gration Judge Victoria Ghartey (AR 46-52)...

March 16, 2007 Hearing Before Immigra-

tion Judge Victoria Ghartey (AR 57-62)..........

APPENDIX G: Representative cases address-
ing Section 212(c) eligibility in light of Mat-

RE Ne aicsavs cin tsehearadniendiietentienccuauanines

Page

Pasi 43a

Vv

TABLE OF CONTENTS—Continued

APPENDIX H: Statutory provisions:

Section 212(a) of the Immigration and Na-
tionality Act, codified at 8 U.S.C. § 1182

Former Section 212(c) of the Immigration
and Nationality Act, codified at 8 U.S.C.
§ 1182(c) (1996), repealed April 1, 1997

Section 231 (formerly Section 241) of the
Immigration and Nationality Act, codified
ee aie tntscitlaisastpitcsseenicadscnsiccennsonesesnane 54a

8 oe Be ee 55a
APPENDIX I: Regulatory provision:
8 C.F.R. § 1212.3(f)(5)

APPENDIX J: Decision of the Board of Immi-
gration Appeals in Matter of Munoz, dated
August 7, 2003

APPENDIX K: Decision of the Board of Im-
migration Appeals in Matter of Rangel-
Zuazo, dated May 25, 2005

APPENDIX L: Decision of the Board of Im-
migration Appeals in Matter of Rowe,
dated May 9, 2003

APPENDIX M: Decision of the Board of Im-
migration Appeals in Matter of S-Lei, dated

vl

TABLE OF AUTHORITIES

CASES
Page(s)
Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007)....19, 25
Abebe v. Holder, 577 F.3d 1113 (9th Cir. 2009) ............. 21
Abebe v. Mukasey, 514 F.3d 909 (9th Cir. 2008) .......... 19
Abebe v. Mukasey, 554 F.3d 1203 (9th Cir.

STII iad axcidbncinnatansiidsesabivsaaavenopceiesnssessestaesesonszeinies passim
Anwo v. INS, 607 F.2d 435 (D.C. Cir. 1979) ..............c0000 R
Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007)....... passim
Boeing Co. v. United States, 537 U.S. 487 (2003).......... 23
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204
Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988) ............... 9
Campos v. INS, 961 F.2d 309 (1st Cir. 1992).............00. 10

Caroleo v. Gonzales, 476 F.3d 158 (8d Cir. 2007)....15, 19
Carrasco-Favela v. INS, 563 F.2d 1220 (5th

el caneacenbcunnbbnogbnenienene 8
Cato v. INS, 84 F.3d 597 (2d Cir. 1996).........cceseeeseeeeee 10
Chiravacharadhikul v. INS, 645 F.2d 248 (4th

aes paaecntbennins 8
City of Cleburne v. Cleburne Living Center,

ss shuleubabatphssbbnaenunsienne 26
Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st

8 ic ELE ae sD NNO 26

De Araujo v. Gonzales, 457 F.3d 146 (1st Cir.
eA os calidpavenuabieasnionne 12

vii

TABLE OF AUTHORITIES—Continued

Page(s)
Drax v. Reno, 338 F.3d 98 (2d Cir. 1996) ..............000ss000 10
FDA v. Brown & Williamson Tobacco Corp.,

Be ay ee EE witsileprniinsinninactensetiininiainaesentneriansrceess 22
Falaniko v. Mukasey, 272 Fed. Appx. 742 (10th

Far, Bee) CIID ccc ccccceneceeszesscnciesstibsnsssenionsoons 15
Farquharson v. Attorney General, 246 F.3d

ee ee Ss thincdicaeinbiienininen 10
Francis v. INS, 582 F.2d 268 (2d Cir. 1976) ..8, 23, 25, 28
Gjona) v. INS, 47 F.3d 824 (6th Cir. 1995)........csesceeeees 10
Gonzalez-Mesias v. Holder, 129 S. Ct. 2042

Sl usiidensiseusccunicicibdbnntintbeacucainigesdiaiamaiaaiasmmassioes 32
Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006)............ 12
INS v. St. Cyr, 533 U.S. 289 (2001) ...........csceseseneeee passim
Katsis v. INS, 997 F.2d 1067 (3d Cir. 1998).................00. 8
Kim v. Gonzales, 468 F.3d 58 (1st Cir. 2006).....15, 19, 26
Koussan v. Holder, 556 F.3d 403 (6th Cir. 2009).......... 15
Leal-Rodriguez v. INS, 990 F.2d 939 (7th Cir.

Peeled incitiinsiisesinsabicedentadetbdeaeintis uctanin ee capeiiasbacessattibauaiiitidesiancn 10
Lorillard v. Pons, 434 U.S. 575 (1978)............csseccceseseees 22
Lovan v. Holder, 574 F.3d 990 (8th Cir. 2009)............... 20
Lozada v. INS, 857 F.2d 10 (1st Cir. 1988)................... 8
Mathews v. Diaz, 426 U.S. 67 (1976)............ceeceseeceeee 26, 27
Matter of A-A-, 20 1. & N. Dec. 492 (BIA 1992)............ 1]

Matter of Arias-Uribe, 13 I. & N. Dec. 966
GPE. SPE ED vaschccsctnincecntenencentisnscssbeniininilonnidnientiassneiion 8

Vill

TABLE OF AUTHORITIES—Continued

Matter of Ashley, 20083 WL 23521830 (BIA
Nov. 4, 20038)

Matter of Banuelos-Delena, 2006 WL 901335
(BIA Mar. 2, 2006)

Matter of Blake, 23 I. & N. Dec. 722 (BIA
3, 13, 14, 24, 29, 30

Matter of Brieva-Perez, 23 I. & N. Dec. 766
(BIA 2005)

Matter of Cardona, 2005 WL 3709244 (BIA
Dec. 27, 2005) c.cscccccccvecsuesssseccossssessecssseeesnece 8, 14, 24, 32

Matter of Caro-Lozano, 2004 WL 1398661 (BIA

Matter of Fuentes-Campos, 21 I. & N. Dec. 905
(BIA 1997)

Matter of G-A-, 7 I. & N. Dec. 274 (BIA

Matter of Hernandez-Casillas, 20 1. & N. Dec.
262 (Att’y Gen. 1991)

Matter of Hussein, 2004 WL 1059601 (BIA

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Matter of Jimenez-Santillano, , 21 1. & N. Dee.
COT CER EA Tie cae aetrsetsrccsrcsecrccecccccvenece

Matter of L-, 11. & N. Dee. 1 (BIA 1940)...............000 7

Matter of Loney, 2004 WL 1167256 (BIA Feb.
ve ne i

TOTS) acvccerssconssssnaieeiaseisiniaanenManninbebnbscansesneoneveeceseotecese

Matter of Martinez, 2004 WL 1167082 (BIA
Fee. 3G, Bay cee eiaaiatesevcescesccencccvcceee

Matter of Meza, 20 I. & N. Dec. 257 (BIA 1991)...........

Matter of Montenegro, 20 I. & N. Dec. 603 (BIA
| 4 a

Matter of Moreno-Escobosa, 25 I. & N. Dec. 114
CELA, SOGG) scccsnsstsis aaa tnaetatsietnscsencsscescccsec0s0000.

Matter of Munoz, No. A35279774, 28 Immig.
Rptr. Bl-] (BIA Aug, 7, ZOGB) -cccccosccccvecccessvecrseveveeeee

Matter of Orrosquieta, 2003 WL 23508672 (BIA
EOC. 1D, Feces rica cccccccccscceccceereecee

Matter of Rangel-Zuazo, No. A90640428 (BIA
Day BE, Fcc etaantstenceccccesconcccccss0.

Matter of Reyes Manzueta, 2003 WL 23269892
CELA. Dee, 1, Biers caeeeiieeeiieateessnvassccceeccoosccevceccese0e

Matter of Rodriguez-Cortes, 20 1. & N. Dec. 587
CELA, SOG) sccscacsensscteeee ene neeatntantitatacsnnccescesccccccesceses

Matter of Rodriguez-Symonds, 2004 WL
880246 (BIA Mar. 9, 2004)......ccccssccsccsssssscssrssersecsesees

X

TABLE OF AUTHORITIES—Continued

Page(s)
Matter of Rowe, No. 37749964 (BIA May 9,

TEI \snnstincnescoehbishsnstdesadeuaaumaanmamniaaiatadiameanmane 12
Matter of S-,6 1. & N. Dee. 392 (BIA 1955)................... 22
Matter of S-Lei, No. A38139424 (BIA May 24,

TOUTED sncsatnesunssexnesounstiniesiabadueapamsssaaiianimmaaaaabiamaiuasemeas 11
Matter of Silva, 16 1. & N. Dec. 26 (BIA 1976)................ 8
Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001).......... 16
Ramsey v. INS, 55 F.3d 580 (11th Cir. 1995)................ 27
Rodriguez-Reyes v. INS, 1993 WL 8150 (6th

Cir. Jan. 15, 1993) (unpublished) .................sccesseeseesees 8
Rosario v. INS, 962 F.2d 220 (2d Cir. 1992)................. 25
Spina v. DHS, 470 F.3d 116 (2d Cir. 2006) ..........ec0 16
St. Cyr v. INS, 229 F.3d 406 (2d Cir, 2000).................4. 24
Tapia-Acuna v. INS, 449 U.S. 945 (1980)..............ceccecee 0)
Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.

TUPITE AD vicciesucsitinneeteanciitnteceanabaannnnasenaalaaiadaiaaiedlimdaisabimsiieai 8
United States v. Ortega-Ascanio, 376 F.3d 879

a als eee ccscenneniiensninsighestntaisiicibialaniiiiciaiiaitasiuasinias 13
United States v. Ubaldo-Figueroa, 364 F.3d

Se Ce GA Se acieaeniestaistndationsinctcnsesnaisatinlabeiinimemesis 13
Valere v. Gonzales, 473 F.3d 757 (7th Cir. 2007) .......... 15
Varela-Blanco v. INS, 18 F.3d 584 (8th Cir.

SITIPTIET ‘sclicssscusshccectesiigceiienciucsanieieal niente senbiadadnateiaidaceaadaieil 8

Variamparambil v. INS, 831 F.2d 1362 (7th
Ce Weed ansiinnithcisicsscareesseiehteteiaeciaiitimiiasaegteaaaiinaiialaiasiinsial 8

x)

TABLE OF AUTHORITIES—Continued

Page(s)

Vissian v. INS, 548 F.2d 325 (10th Cir. 1977)................. le}

Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007)..............0. 15

Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007)......... 15,19
Wong Wing v. United States, 163 U.S. 228

SUTIN sscisisasamesiomideasedalbieiaaatsidanideiiieliahantcietiemianualannanioniocien 26

Yeung v. INS, 76 F.3d 337 (11th Cir. 1995) .......ceseeeesees 8

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............sccceeeees 26

STATUTES

Sp RP ta UP TUT ntscntisitienintaeaeeeaieiesenanisacccniiadaisee 25
Immigration and Nationality Act, 8 U.S.C.

a ae 2

i a ities theese hndoedcedamnieebbaninanionaieedeaiia 2, 11, 12

it hl cia cicteasian ca tacit iaceeiiaensalnasidaebieanbieiabaidn 2, 3,6

I ie 2

a eeneesinieeiianias 2, 3, 5, 6, 11

ee eats Oe ETE cen cerns cacieesicinseciesamanitansebssnnsicaaiinainieieaadaiiabisianbaties 2
Immigration Act of 1990, Pub. L. No. 101-649,

ESE RT RO TE a TO 13

Illegal Immigration Reform and Immigrant
Responsibility Act, Pub. L. No. 104-208,

110 Stat. 3009-548 (1996) ...............cccecssscessesseeseed, 10
immigration Act of 1917, Pub. L. No. 64-301,
I ee emcees 7

Fs a: SF ee cnicctiniiceeseinaieesanintinnbennintinnnticubais ssscaianaiaats 5

Xi
TABLE OF AUTHORITIES—Continued

Page(s)
REGULATION
Tek FR! aan 2, 11, 29

LEGISLATIVE AND ADMINISTRATIVE MATERIALS

136 Cong. Rec. S6586 (daily ed. May 18, 1990)..............18
69 Fed. Reg. 57,826 (Sept. 28, 2004)... cseeeeeees 29, 30
OTHER AUTHORITIES

Aleinikoff, Martin, & Motomura, /mmigration:
Process & Policy (3d ed. 1995) ..........cccccceceeseeseeeee 10
6 Gordon, Mailman & Yale-Loehr, /mmigration
LAW EB PVOCEEUTE CHUIB) .cccecocecosecececescceveccocccsscevessceces 30

Judicial Business of the United States Courts:
2008 Annual Report of the Director (2009),
at http://www.uscourts.gov/judbus2008/
appendices/BO3Sep08. pdf...........ceseeseeeees 15, 17, 20, 21

IN THE

Supreme Court of the United States

No. 09-

JOSE ERASMO DE LA ROSA,
Petitioner,
Vv.

ERIC J. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CiRCUIT

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The court of appeals issued its decision and entered
judgment on August 20, 2009. The decision of the court
of appeals is reported at 579 F.3d 1327 and reproduced
at App. la-28a.

The oral decision of the Immigration Judge order-
ing Petitioner deported to the Dominican Republic is
unreported. App. 33a-36a. The decision of the Board of
Immigration Appeals affirming the deportation order is
likewise unreported. App. 29a-31a.

2
JURISDICTION

This Court has jurisdiction under 28 U.S.C.
§ 1254(1).

CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED

1. The Fifth Amendment to the United States
Constitution provides in relevant part: “No person
shall be ... deprived of life, liberty, or property, without
due process of law[.]”

2. The following provisions of the Immigration
and Nationality Act, 8 U.S.C. §§ 1101 et seq., are set
forth in relevant part in the Appendix hereto:

a. 8U.S.C. § 1101(a)(43) (App. 55a-56a);
b. 8 U.S.C. § 1182(a) (App. 53a);

e. 8 U.S.C. § 1182(c) (1996) (repealed Apr. 1,
1997) (App. 54a); and

d. 8 U.S.C. § 1227(a) (App. 54a-55a).
38. 8 C.F.R. § 1212.3(f)(5) is reproduced at App.

57a.

INTRODUCTION

This case presents an important question of immi-
gration law on which the courts of appeals have split
three ways. Prior to 2005, the BIA had repeatedly held
that individuals in Petitioner De la Rosa’s position
could seek discretionary relief from removal under
former Section 212(c) of the Immigration and National-
ity Act (INA). In Petitioner’s own case, government

3

counsel conceded that Petitioner appeared to be “eligi-
ble” for relief under Section 212(c). App. 48a.'

In 2005, however, reacting to this Court’s reaffir-
mance of the availability of Section 212(c) relief to cer-
tain aliens (see INS v. St. Cyr, 533 U.S. 289, 294-298
(2001)), the BIA sought to curtail Section 212(c) relief
in a way that disqualified numerous previously eligible
individuals, including Petitioner. Purporting to inter-
pret a 2004 regulation promulgated to implement Sz.
Cyr, the BIA ruled that deportable lawful permanent
residents (LPRs) who had not traveled abroad after
their convictions could only seek discretionary relief if
the government charged them under a deportation
provision in the INA that used similar language to an
exclusion provision. Matter of Blake, 23 I. & N. Dec.
722 (BIA 2005). The BIA has acknowledged that Biake
was a “change in law.” E.g., Matter of Cardona, 2005
WL 3709244 (BIA Dec. 27, 2005), appeal docketed, No.
08-70736 (9th Cir. Feb. 22, 2008).

The practical result was suddenly to foreclose Sec-
tion 212(c) relief for large numbers of LPRs whose at-

' Before April 1, 1997, the INA distinguished between depor-
tation proceedings, applicable to individuals already present in the
United States, and exclusion proceedings, applicable to individuals
seeking to enter the United States. The Illegal Immigration Re-
form and Immigrant Responsibility Act, Pub. L. No. 104-208,
§ 304, 110 Stat. 3009-548, 3009-589 (1996) (IIRIRA), replaced both
with “removal” proceedings and also replaced the term “exclud-
able” with “inadmissible.” Nonetheless, the statutory distinction
between the two categories of individuals remains. Compare 8
U.S.C. § 1182(a) (defining class of inadmissible individuals) with 8
U.S.C. § 1227(a) (defining class of deportable individuals). The
terms “deportation” and “exclusion” and their variants are used
where necessary to the analysis under former Section 212(c).

4

tachment to the United States was so strong that they
had not left the country at all following their conviction.
Meanwhile, under an established BIA practice that
Congress has long accepted, Section 212(c) relief re-
mains available to similarly situated LPRs who did
leave the country following their conviction, reentered
the United States, and were subsequently placed in
removal proceedings. Such individuals have been able
to seek Section 212(c) relief “nunc pro tunc” for nearly
sixty years, as long as their conviction was for an of-
fense that would have rendered them inadmissible upon
reentry.

The Second Circuit has correctly rejected the
BIJA’s new position, because it creates an irrational dis-
tinction inconsistent with equal protection. The Ninth
Circuit, in a sharply divided en bance decision, held that
Section 212(c) does not apply to deportable LPRs at
all—a position that neither the BIA nor the govern-
ment has endorsed. The other circuits to address the
question, including the Eleventh Circuit in this case,
have affirmed the BIA’s new approach.

Although Section 212(c) was repealed in 1996, it
remains of critical importance to numerous longstand-
ing residents of this country, many of whom—like Peti-
tioner De la Rosa—are rehabilitated, have worked hard
for decades, are supported by US. citizen family mem-
bers, have U.S. citizen children, and have made valu-
able contributions to their communities. The BIA
would now deny them the right to apply for relief that
this Court reaffirmed in St. Cyr, based solely on the ar-
bitrary nature of their travel history. The fact that Mr.
De la Rosa did not leave the United States after 1995 is
no reason to deprive him of an opportunity to seek dis-
cretionary relief from removal—relief that he would in
all likelihood receive were he allowed to apply for it.

5

This Court should grant certiorari to review the
judgment of the Eleventh Circuit and bring much-
needed uniformity to this important question.

STATEMENT
A. Factual Background

Petitioner Jose Erasmo De la Rosa, a native of the
Dominican Republic, entered the United States
through New York as an LPR in 1989, when he was
sixteen years old. App. 2a-3a. He resided continuously
in the United States for nearly twenty years. See App.
39a. He is married and is the father of three U.S. citi-
zen children. Mr. De la Rosa owns a home in Orlando,
Florida and has had a consistent work history. See id.
His parents and siblings all live in the Orlando area; his
father and five of his six siblings are U.S. citizens, and
his mother and eldest brother are LPRs. See id.

In 1993, when Mr. De la Rosa was twenty years
old, he had a relationship with a girlfriend who was
fourteen years old. C.A. A.R. 69-70. According to the
charge sheet filled out by police, the two had sexual in-
tercourse twice during an approximately eight month
relationship. Jd. The charge sheet does not assert any
coercion or violence. In 1995, Mr. De la Rosa pleaded
nolo contendere to “committing a lewd act upon a
child.” App. 3a (citing Fla. Stat. § 800.04(3)). Mr. De la
Rosa was sentenced to three years of supervised pro-
bation and served no jail time. C.A. A.R. 67. In 1998,
Mr. De la Rosa applied for naturalization.

On May 17, 2004, the government placed Mr. De la
Rosa in removal proceedings, charging that his 1995
conviction qualified as: (1) an aggravated felony relat-
ing to “sexual abuse of a minor” under Section
237(a(2)(A)lil) of — the INA (8 US.C.

6

§ 1227(a)(2)(A)(iii)); and (2) a crime of domestic violence
or child abuse under Section 237(a)(2)(E\(i) (8 U.S.C.
§ 1227(a)(2)(E)()). App. 3a.

Mr. De la Rosa was released on bond while his re-
moval proceedings were pending. An immigration
judge (IJ) rejected the government’s appeal from the
bond order, finding that Mr. De la Rosa “has lived in
and established positive ties in the Orlando community
for many years ... has the support of his family in the
United States, a good work history, and it appears that
[he] has been rehabilitated.” App. 39a (emphasis
added).

At an initial hearing on February 15, 2005, Mr. De
la Rosa conceded his removability and applied for dis-
cretionary relief from removal under Section 212(c).
App. 43a. Government counsel stated that Mr. De la
Rosa “appears eligible” for Section 212(c) relief. Id.

The IJ scheduled a merits hearing for March 1, 2007.
During the intervening two years, the BIA radically
altered its approach to Section 212(c).

B. Availability Of Discretionary Relief Before
2005

Prior to its repeal in 1996, Section 212(c) provided:
“Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not un-
der 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 Attor-
ney General[.]” 8 U.S.C. § 1182(c).

Although the terms of Section 212(c) envision relief
only for excludable LPRs, it has long been applicable to
persons who, like Mr. De la Rosa, are deportable due to
convictions that would also render them excludable.

7

1. Section 212(c)’s predecessor was the Seventh
Proviso to Section 3 of the Immigration Act of 1917,
which permitted a discretionary waiver of exclusion for
“aliens returning after a temporary absence to an unre-
linquished United States domicile of seven consecutive
years.” Pub. L. No. 64-3801, 39 Stat. 874, 878. “Al-
though that provision applied literally only to exclusion
proceedings, and although the deportation provisions of
the statute did not contain a similar provision, the INS
relied on [the Seventh Proviso] to grant relief in depor-
tation proceedings involving aliens who had departed
and returned to this country after the ground for de-
portation arose.” St. Cyr, 533 U.S. at 294 (emphasis
added). The law treated the deportable LPR as if he
had been placed in exclusion proceedings upon reentry,
such that relief was available “nunc pro tunc.” Matter
of L-, 11. & N. Dee. 1, 5-6 (Att’y Gen, 1940).’

2. Section 212 of the Immigration and Nationality
Act of 1952 “replaced and roughly paralleled § 3 of the
1917 Act.” St. Cyr, 5383 U.S. at 294. Its discretionary
relief provision, Section 212(c), closely tracked the Sev-
enth Proviso. The BIA soon ruled that Section 212(c)
permitted relief for LPRs in deportation proceedings
who had traveled abroad after their conviction and be-
fore being placed in deportation proceedings. Matter of
G-A-, 71. & N. Dec. 274, 276 (BIA 1956). The BIA also
made clear that, if Section 212(c) “is exercised to waive
a ground of inadmissibility based upon a criminal con-

? The Attorney General determined that Congress did not in-
tend the Seventh Proviso to operate in a “capricious and whimsi-
cal” fashion to deny an eligible LPR relief merely because the gov-
ernment had failed to place the LPR in exclusion proceedings upon
reentry. L-, 11. & N. Dec. at 5.

8

viction, a deportation proceeding cannot thereafter be
properly instituted based upon the same criminal con-
viction.” Id. at 275.

The BIA initially refused to permit deportable
LPRs who had not traveled abroad after their convic-
tion to seek Section 212(c) relief. Matter of Arias-
Uribe, 13 I. & N. Dec. 696, 697-698 (BIA 1971). In 1976,
the Second Circuit rejected that approach, ruling that
LPRs who had traveled abroad and those who had not
were “in like circumstances, but for irrelevant and for-
tuitous factors,” and therefore equal protection re-
quired that they be “treated in a like manner.” Francis
v. INS, 532 F.2d 268, 273 (2d Cir. 1976). The Second
Circuit noted that the government had proffered no
reason to distinguish between LPRs based on a “failure
to travel abroad following ... conviction” and concluded
that “[rJeason and fairness would suggest 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[.]” Jd. The BIA and all of the courts
of appeals followed Francis.’

* See St. Cyr, 583 U.S. at 295; Matter of Silva, 16 I. & N. Dec.
26, 30 (BIA 1976); see also Anwo v. INS, 607 F.2d 435, 436 n.3
(D.C. Cir. 1979) (per curiam); Lozada v. INS, 857 F.2d 10, 11 n.1
(Ist Cir. 1988); Katsis v. INS, 997 F.2d 1067, 1070 (8d Cir. 1993);
Chiravacharadhikul v. INS, 645 F.2d 248, 248 n.1 (4th Cir. 1981);
Carrasco-Favela vy. INS, 563 F.2d 1220, 1221 n.8 (5th Cir. 1977)
(per curiam); Rodriguez-Reyes v. INS, 1993 WL 8150, at *2 (6th
Cir. Jan. 15, 1993) (unpublished); Variamparambil v. INS, 831
F.2d 1862, 1864 n.1 (7th Cir. 1987); Varela-Blanco v. INS, 18 F.3d
584, 586 (8th Cir. 1994) (per curiam); Tapia-Acuna v. INS, 640
F 2d 223, 224-225 (9th Cir. 1981), overruled, Abebe v. Mukasey, 554
F.3d 1208 (9th Cir. 2009) (en banc) (per curiam); Vissian v. INS,
548 F.2d 325, 328 n.2 & n.3 (10th Cir. 1977); Yeung v. INS, 76 F.3d

9

Consequently, for nearly twenty years before Mr.
De la Rosa pled guilty, Section 212(c) relief was avail-
able to deportable LPRs who could have sought relief
nunc pro tunc had they left the United States and re-
turned, regardless of whether they had actually done
so. See, e.g., Cabasug v. INS, 847 F.2d 1321, 1327 (9th
Cir. 1988) (Wallace, J., concurring) (explaining that it
would violate equal protection “to distinguish between
aliens who had committed the same crime on the basis
of whether they traveled abroad recently” (emphasis
added)).

Although Francis made Section 212(c) relief avail-
able to many deportable LPRs, it did not apply to
LPRs who were deportable for convictions that did not
make them inadmissible. Persons in that situation
would not have been eligible for Section 212(c) relief
mune pro tune even if they had traveled abroad, and

there was accordingly no irrational distinction in deny-
ing relief in such cases. See, ¢.g., Matter of Jimenez-
Santillano, 21 1. & N. Dec. 567, 574-575 (BIA 1996)
(stating that Section 212(c) relief was not available “to
an alien in deportation proceedings when that same
alien would not have occasion to seek such relief were
he in exclusion proceedings instead”).

That limitation came to be known as the “statutory
counterpart” rule: Section 212(c) relief was available in
removal proceedings if the LPR was deportable for a
conviction that fell under a “counterpart” exclusion

337, 340 n.4 (11th Cir. 1995); accord Tapia-Acuna v. INS, 449 U.S.
945 (1980) (vacating and remanding in light of Solicitor General’s
change of position); Abebe, 554 F.3d at 1214-1215 (Thomas, J., dis-
senting) (noting government’s concession in Tapia-Acuna that
Francis was correct).

10

provision. Because most crimes that are grounds for
deportation are also grounds for exclusion, the statu-
tory counterpart rule was satisfied by all but a limited
group of LPRs—generally, only those deportable for
certain firearms convictions‘ and entry without inspec-
tion.” The Attorney General stated as much in 1991,
when he identified only “two grounds for deportation
[that] have no analogue in the grounds for exclusion,”
namely entry without inspection and firearms offenses.
Matter of Hernandez-Casillas, 20 1. & N. Dec. 262, 282
n.4 (Att’y Gen. 1991); see also Aleinikoff, Martin, & Mo-
tomura, Immigration: Process & Policy 703-704 (3d ed.
1995) (“The two most significant deportation grounds
without comparable exclusion grounds are entry with-
out inspection and firearms violations.”).

3. In 1996, Congress repealed Section 212(c). Ille-
gal Immigration Reform and Immigrant Responsibility
Act, Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-548,
3009-597 (1996) (IIRIRA). In 2001, this Court held that
the repeal was prospective only and that LPRs who
were deportable on account of convictions obtained
through guilty pleas prior to April 1, 1997 (IIRIRA’s

* See, e.g., Drax v. Reno, 338 F.3d 98, 101, 108-109 (2d Cir.
2003); Cato v. INS, 84 F.3d 597, 600 (2d Cir. 1996); Gjonaj v. INS,
47 F.3d 824, 825, 827 (6th Cir. 1995); Campos v. INS, 961 F.2d 309,
311-314 (1st Cir. 1992); Matter of Esposito, 21 I. & N. Dec. 1, 9-10
(BIA 1995); Matter of Montenegro, 20 1. & N. Dec. 603, 605-606
(BIA 1992); Matter of Granados, 16 I. & N. Dec. 726, 728-729 (BIA
1979).

* See, ¢.g., Farquharson v. U.S. Attorney General, 246 F.3d
1317, 1825 (11th Cir. 2001); Leal-Rodriguez v. INS, 990 F.2d 939,
948, 952 (7th Cir, 1993); Matter of Hernandez-Casillas, 20 I. & N.
Dec. 262, 281, 286-287 (Att’y Gen. 1991).

1]

effective date) could still seek Section 212(c) relief. See
St. Cyr, 5383 U.S. at 326.

In 2004, the Department of Justice (DOJ) promul-
gated a regulation implementing St. Cyr and setting
out the criteria for Section 212(c) relief. The regulation
included a statutory counterpart requirement. 8 C.F.R.
§ 1212.3(f)(5) (“An application for relief under former
section 212(c) of the Act shall be denied if ... [t]he alien
is deportable ... on a ground which does not have a
statutory counterpart in section 212 of the Act.”).

4. Up to and including 2004, the BIA repeatedly
held that persons deportable for certain “aggravated
felonies” (see 8 U.S.C. § 1227(a)(2)(A)(iii)) satisfied the
“statutory counterpart” requirement, generally be-
cause the crime of conviction was also a “crime involv-
ing moral turpitude” that would render the LPR inad-
missible under Section 212(a)(2)(A)(i). Although the
provisions governing inadmissibility did not list aggra-
vated felonies as a basis for exclusion, the BIA held
that a Section 212(c) waiver was “not unavailable to an
alien convicted of an aggravated felony simply because
there is no ground of exclusion which recites the words,
‘convicted of an aggravated felony.’ ” Matter of Meza,
20 I. & N. Dec. 257, 259 (BIA 1991). The BIA accord-
ingly ruled that LPRs could seek waivers of deporta-
tion for aggravated felony convictions, including
“crimes of violence” under 8 U.S.C. § 1101(a)(43)(F)°

° See, e.g., Matter of Rodriguez-Cortes, 20 1. & N. Dec. 587,
590-591 (BIA 1992) (noting that an LPR convicted of attempted
murder “is not barred from applying for section 212(c) relief”);
Matter of A-A-, 20 1. & N. Dec. 492, 500-501 (BIA 1992) (concluding
that an LPR convicted of murder was not disqualified from seek-
ing Section 212(c) relief on that basis); Matter of S-Lei, No.
A38139424 (BIA May 27, 2004) (App. 79a-80a) (affirming grant of

12

and “sexual abuse of a minor” under § 1101(a)(48)(A).’
The courts of appeals likewise noted the availability of
Section 212(c) relief to persons convicted of such
crimes. See e.g., Hem v. Maurer, 458 F.3d 1185, 1187-
1189 (10th Cir. 2006) (crime of violence); De Araujo v.

Section 212(c) relief to an LPR convicted of attempted robbery, a
crime of violence); Matter of Reyes Manzueta, 2003 WL 23269892
(BIA Dec. 1, 2003) (affirming a Section 212(c) waiver of a convic-
tion for voluntary manslaughter, a crime of violence); see also Mat-
ter of Caro-Lozano, 2004 WI 1298661 (BIA Apr. 22, 2004) (reach

ing the merits of a Section 212(c) application in a crime of violence
case); Matter of Hussein, 2004 WL 1069601 (BIA Mar. 15, 2004)
(remanding for consideration of Section 212(c) relief where convic-
tion was a crime of violence); Matter of Martinez, 20048 WL
1167082 (BIA Feb. 18, 2004) (“(I]}t does appear that Section 212(c)
could waive the burglary offense[.)"); Matter of Loney, 2004 WL
1167256 (BIA Feb, 10, 2004) (an LPR convicted of a crime of vio-
lence was “not precluded” from seeking Section 212(c) relief where
the crime was also a crime involving moral] turpitude); Matter of
Orrosquieta, 2008 WL 23508672 (BIA Dec. 19, 2003) (recognizing
that a petitioner deportable for extortion, a crime of violence,
would be “entitled” to seek Section 212(c) relief); Matter of Munoz,
No. A35279774, 28 Immig. Rptr. Bl-1 (BIA Aug. 7, 2003) (App.
59a-69a) (remanding for consideration of Section 212(c) relief
where the crime of violence was also a crime involving mora] turpi

tude); Matter of Rowe, No. 37749964 (BIA May 9, 2008) (App. 75a-
78a) (rejecting government’s argument that a crime of violence
was not waivable).

” See, e.g., Hussein, 2004 WL 1059601 (an LPR convicted of
indecency with a child was eligible for Section 212(c) relief because
he could have been excluded due to a crime involving mora] turpi-
tude); Matter of Rodriguez-Symonds, 2004 WL 880246 (BIA Mar.
9, 2004) (remanding for consideration of whether an LPR con-
victed of a lewd act upon child was eligible for Section 212(c) relief
because the conviction was also a crime involving moral turpitude);
Matter of Ashley, 2003 WL 23521830 (BIA Nov. 4, 2003) (noting
apparent Section 212(c) eligibility for an LPR convicted of a sexual
offense against a child).

13

Gonzales, 457 F.3d 146, 154-155 (1st Cir. 2006) (crime of
violence); United States v. Ortega-Ascanio, 376 F.3d
879, 886-887 (9th Cir. 2004) (sexual battery); United
States v. Ubaldo-Figueroa, 364 F.3d 1042, 1051 (9th
Cir. 2004) (burglary). This Court also recognized the
importance of Section 212(c) in aggravated felony
“crime of violence” cases. St. Cyr, 533 U.S. at 295-296
& n.4.

C. The BIA Changes Course In 2005

On April 6, 2005—fewer than two months after the
government conceded that Mr. De la Rosa appeared
eligible for Section 212(c) relief—the BIA, purporting
to interpret the 2004 DOJ regulation, abruptly changed
the rules. In Blake, the BIA decided that an LPR who
was deportable for a “sexual abuse of a minor” aggra-
vated felony was categorically ineligible for Section
212(c) relief, regardless of whether the crime would
provide a basis for inadmissibility as a crime involving
moral turpitude. 23 I. & N. Dec. at 727-728. Without
addressing its numerous decisions upholding discre
tionary waivers in similar circumstances, the BIA held
that the “statutory counterpart” requirement could
only be satisfied if the LPR was deportable under a

* Although Congress imposed limits on Section 212(c) relief
prior to its 1996 repeal, Congress never sought to limit it to ex-
cludable LPRs only. See Immigration Act of 1990, Pub. L. No. 101-
649, § 511, 104 Stat. 4978, 5052 (providing that LPRs convicted of
aggravated felonies could seek Section 212(c) relief only if they did
not serve a term of imprisonment of five years or more); 136 Cong.
Rec. 56586, S6604 (daily ed. May 18, 1990) (statement of Sen. Dole)
(“Section 212(c) provides relief from exclusion, and by court deci-
sion from deportation[.} This discretionary relief is obtained by
numerous excludable and deportable aliens[.}’’).

14

subsection of INA § 237 that was phrased similarly to
an inadmissibility subsection in INA § 212(a). Jd. at
728. Purporting to rest its conclusion on decisions of
the Second Circuit, the BIA barred the LPR in Blake
from applying for relief because the words “sexual
abuse of a minor” do not appear in any inadmissibility
provision. Jd. at 728-729. The BIA did not consider
whether Blake’s conviction would render him exclud-
able and therefore eligible to seek Section 212(c) relief
nune pro tunc had he left the country and returned.
Shortly thereafter, the BIA applied the same reasoning
to “crime of violence” aggravated felonies. Matter of
Brieva-Perez, 23 1. & N. Dec. 766 (BLA 2005),

The BIA acknowledged that Blake was a retroac-
tive change in its Section 212(c) jurisprudence—a fact
that was confirmed by the BIA’s later reversal of deci-
sions to grant relief under the BIA’s prior (correct) ap-
proach to Section 212(c). In one case, the BIA itself had
affirmed an IJ’s decision granting relief to an LPR con-
victed of a “sexual abuse of a minor” crime, but then
vacated its decision on the government’s motion, refer-
ring to Blake as “a change in law that appears to pre-
clude a grant of 212(c) relief.” Cardona, 2005 WL
3709244; see also Matter of Gomez-Perez, 2006 WL
901334 (BIA Mar. 1, 2006) (vacating IJ’s decision to
grant Section 212(c) waiver because LPR is “no longer
eligible for relief’), appeal docketed, No. 07-72569 (9th
Cir. June 27, 2007); Matter of Rangel-Zuazo, No.
A90640428 (BIA May 25, 2005) (App. 71la-73a) (revers-
ing IJ’s decision to grant relief because “intervening
precedent renders the respondent statutorily ineligible
for section 212(c) relief’), appeal docketed, No. 07-72316
(9th Cir. June 11, 2007); Matter of Banuelos-Delena,
2006 WL 901335 (BIA Mar. 2, 2006) (reversing IJ’s de-

15

cision to grant Section 212(c) waiver based on “inter-
vening Board precedent”).

D. The Circuit Split

The courts of appeals have divided three ways in
response to Blake. Although the BIA claimed to base
Blake on Second Circuit precedent, that court reversed
the BIA in Blake itself. Blake v. Carbone, 489 F.3d 88,
103 (2d Cir. 2007). In 2008, the Second Circuit heard
28% of the total number of appeals from the BIA. See
Judicial Business of the United States Courts: 2008
Annual Report of the Director, Table B-3 (2009), at
http://www.uscourts.gov/judbus2008/appendices/B03Se
p08.pdf (2008 Annual Report). Eight other courts of
appeals, which together heard 25% of all appeals from
the BIA (id.), have affirmed the Blake rule.” And the
Ninth Circuit, which heard 45% of the appeals from the
BIA (id.), recently discarded Francis altogether, ruling
that Section 212(c) relief is unavailable to deportable
LPRs—a position neither the government nor the BIA
advocated. Abebe v. Mukasey, 554 F.3d 1203, 1207 (9th
Cir.) (en banc) (per curiam), reh’g and full court reh’g
en banc denied, 577 F.3d 1118 (9th Cir. 2009)."°

> Kim v. Gonzales, 468 F.3d 58, 63 (1st Cir. 2006); Caroleo v.
Gonzales, 476 F.3d 158, 167-168 (8d Cir. 2007); Vo v. Gonzales, 482
F.3d 363, 368-369 (5th Cir. 2007); Koussan v. Holder, 556 F.3d 403,
412-414 (6th Cir. 2009), reh’g and reh’g en banc denied (May 29,
2009); Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir. 2007); Vue v.
Gonzales, 496 F.3d 858, 862-863 (8th Cir. 2007); Falaniko v. Mu-
kasey, 272 Fed. Appx. 742, 746-748 (10th Cir. 2008) (unpublished);
App. 25a-28a.

'° The Ninth Circuit in Abebe suggested that LPRs could still
seek relief under the 2004 regulation (see 554 F.3d at 1207), and

16

E. Proceedings Below

In 2007, at the merits hearing on Mr. De la Rosa’s
Section 212(c) application, the government argued that
Mr. De la Rosa was categorically ineligible for Section
212(c) relief based on the BIA’s Blake decision. App.
44a. The IJ agreed and ordered Petitioner removed.
App. 36a. The BIA affirmed. App. 31a.

Mr. De la Rosa sought review in the Eleventh Cir-
cuit and moved to stay his order of removal; the gov-
ernment cross-moved for summary affirmance. The
court of appeals found that no “binding precedent” di-
rectly resolved the case and denied the government’s
motion for summary affirmance, but it also refused to
stay Mr. De la Rosa’s removal order. App. 41la-42a.
The government removed Mr. De la Rosa to the Do-
minican Republic on or about October 16, 2008.”'

The court of appeals summarized Mr. De la Rosa’s
arguments on the merits as follows: (1) the BIA’s deci-
sion violated his due process right to equal protection of
the laws; and (2) the BIA’s decision in Blake departed
from prior agency and federal court precedent, which
permitted LPRs convicted of aggravated felonies that
are crimes involving moral turpitude to apply for Sec-
tion 212(c) relief. App. 19a-22a. The government did
not deny that Mr. De la Rosa’s conviction was for a
crime involving moral turpitude that would provide a
basis for inadmissibility. Resp. C.A. Br. 12.

the BIA has agreed (Matter of Moreno-Escobosa, 24 1. & N. Dee.
114, 116-117 (BIA 2009)).

'' Mr. De la Rosa’s removal does not moot his Section 212(c)
request. See, e.g., Spina v. DHS, 470 F.3d 116, 124-125 (2d Cir.
2006); Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001).

17

The Eleventh Circuit denied Mr. De la Rosa’s peti-
tion for review. The court recognized that Blake was a
“watershed moment in § 212(c) jurisprudence.” App.
12a. Nonetheless, the court stated that Blake “did not
represent a departure from prior BIA practice” (App.
19a) and concluded that “De la Rosa’s implicit equal
protection argument fails” (App. 28a). The panel ac-
knowledged the “three-way circuit split” on the issue.
App. 17a.

REASONS FOR GRANTING THE PETITION

Section 212(c) continues to be an important source
of relief for numerous legal permanent residents. See
St. Cyr, 583 U.S. at 296 n.6. In the four and one-half
years since Blake, the issue has arisen in over 120 cases
and produced published opinions in almost every cir-
cuit. App. 45a-52a (listing representative circuit and
BIA cases in which Blake or its progeny have been ad-
dressed). Ten circuits, which overall hear 98% of the
petitions for review from the BIA (see 2008 Annual Re-
port at Table B-3) are irreconcilably split three ways on
the proper application of Section 212(c) to LPRs de-
portable as a result of an aggravated felony conviction.
This Court’s guidance is urgently needed to restore a
uniform application of Section 212(c).

The BIA’s novel and unprecedented reinterpreta-
tion of the statutory counterpart test in Blake—
ostensibly based on a 2004 regulation designed to im-
plement this Court’s ruling in St. Cyr—was in fact an
evident effort to undermine St. Cyr and accomplish
through agency and judicial decision what Congress
had not done through legislation. The BIA’s new ap-
proach, ratified by the Eleventh Circuit, creates an ar-
bitrary and capricious distinction that is inconsistent
with the settled interpretation of Section 212(c) and

18

resurrects the unconstitutional practice of discriminat-
ing between similarly situated LPRs on the irrelevant
basis of travel history. It also improperly gives retro-
active effect to an (erroneous) interpretation of the
2004 regulation. The Court should grant certiorari and
reverse the judgment of the Eleventh Circuit.

I. THE THREE-WAY CIRCUIT SPLIT ON THE APPLICATION
OF SECTION 212(c) TO DEPORTABLE LEGAL PERMA.
NENT RESIDENTS IS DEEPLY ENTRENCHED AND THE
ISSUE HAS FULLY PERCOLATED

Since the BIA’s 2005 decision in Blake, ten courts
of appeals have considered whether and under what
circumstances an LPR who is deportable on the basis of
an “aggravated felony” conviction is eligible for Section
212(c) relief. In answering this question, the courts of
appeals have split three ways. App. 17a (acknowledg-
ing the “three-way circuit split”).

First, the Second Circuit has recognized that the
BIA’s decision in Blake revived the equal protection
problem—first identified in Francis—of giving worse
treatment to LPRs who had not departed the United
States. Blake v. Carbone, 489 F.3d at 102-104. To cure
the BIA’s constitutional violation, the Second Circuit
restored the law to its pre-2005 posture: Section 212(c)
relief is available if the “particular offense” that ren-
dered the LPR deportable “would render a similarly
situated [LPR] excludable.” Jd. at 103. As the Second
Circuit observed, “what makes one alien similarly situ-
ated to another is his or her act or offense, which is cap-
tured in the INA as either a ground of deportation or
exclusion.” Jd. at 104 (explaining that equal protection
principles “require[] [the court] to examine the circum-
stances of the deportable alien, rather than the lan-
guage Congress used to classify his or her status”).

19

The Second Circuit left to the BIA in the first instance
the task of determining whether a particular aggra-
vated felony would render an LPR excludable. /d.'?

Second, eight other courts of appeals, including the
Eleventh Circuit below, affirmed the BIA’s formulaic
approach in Blake. Instead of determining whether the
underlying offense would also make the deportable
LPR inadmissible, those circuits compare only the
words used in the particular deportation provision
charged by the government to the words used in the
inadmissibility provisions of Section 212(a). See, e.g.,
Caroleo v. Gonzales, 476 F.3d 158, 164-165 (3d Cir.
2007). Under this “rather mechanical reading of the
law” (Kim v. Gonzales, 468 F.3d 58, 63 (1st Cir. 2006)),
Section 212(c) relief is only available if one of the inad-
missibility provisions uses language that is substan-
tially identical to the deportation provision charged.
E.g., App. 24a. Because the inadmissibility provisions
do not use the words “sexual abuse of a minor” or
“erime of violence,” LPRs who are charged as deport-
able under those provisions are held categorically ineli-
gible for a waiver of removal, even if the underlying
criminal conviction would render them inadmissible for
having committed a “crime involving moral turpitude.”
See, e.g., Caroleo, 476 F.3d at 164-165.

However, if LPRs with such convictions leave the
country, they can seek Section 212(c) relief—either

“ Judges in other circuits have praised the Second Circuit’s
reasoning. See, e.g., Abebe, 554 F.3d at 1217-1219 (Thomas, J.,
joined by Pregerson, J., dissenting); Vwe, 496 F.3d at 863 (Bye, J.,
concurring); Abebe v. Gonzales, 493 F.3d 1092, 1168-1109 (9th Cir.
2007) (Berzon, J., concurring), vacated, Abebe v. Mukasey, 514
F.3d 909 (9th Cir. 2008).

20

upon return if they are charged as inadmissible or nunc
pro tune if they are charged as deportable—as long as
their conviction is for a crime that would make them
inadmissible, such as a crime involving moral turpitude.
See G-A-, 7 Il. & N. Dec. at 276; see also Lovan v.
Holder, 574 F.3d 990, 996 & n.5 (8th Cir. 2009) (noting
that under the nunc pro tunc analysis, “the focus is on
whether the [LPR] when he returned from a trip
abroad was in fact excludable for any reason, including
prior conviction of a crime involving moral turpi-
tude”).'"

Third, the Ninth Circuit (in a fractured en banc de-
cision) recently overruled decades of agency decisions
and its own precedent to hold that Section 212(c) does
not apply to deportable LPRs at all. Abebe, 554 F.3d at
1207. Under that view, Section 212(c) relief should not
even be available as a nunc pro tunc correction for de-
portable LPRs who traveled abroad between their con-
victions and the initiation of deportation proceedings.
As the concurring and dissenting opinions observed,
the Ninth Circuit majority failed to observe stare de-
cisis, ignored consistent agency practice applying Sec-
tion 212(c) relief to deportable LPRs, and disregarded
Congress’s acceptance of that settled construction of
the statute. See id. at 1209-1211 (Clifton, J., concur-
ring); id. at 1213-1217 (Thomas, J., dissenting). Seven
judges dissented from the Ninth Circuit’s denial of

- Although eight circuits have adopted Blake, their number
is misleading in terms of the significance of the present three-way
circuit split. In 2008, those circuits heard only 25% of the total
number of petitions for review from the BIA, whereas the Second
Circuit alone heard 28%. See 2008 Annual Report at Table B-3.

21

Abebe’s request for full court rehearing en banc. Abebe
v. Holder, 577 F.3d 1113 (9th Cir. 2009).'*

II. THE ELEVENTH CIRCUIT AND THE BIA INCORRECTLY
AND UNCONSTITUTIONALLY RESTRICTED THE SCOPE
OF SECTION 212(c) RELIEF

The Eleventh Circuit was correct in one respect:
the BIA’s Blake decision “proved to be a watershed
moment in [Section] 212(c) jurisprudence.” App. 12a.
Before 2005, the BIA consistently held that an LPR
deportable on the basis of an aggravated felony convic-
tion for “sexual abuse of a minor” or a “crime of vio-
lence” was eligible for Section 212(c) relief from re-
moval if the underlying conviction would have been a
basis for inadmissibility (e.g., as a “crime involving
moral turpitude” under INA § 212(a)(2)(A)(i)). See su-
pra nn.6-7.

In Blake, however, the BIA sought to change the
law retroactively by eliminating Section 212(c) relief for
LPRs who were charged under a deportation provision
that used language that was not similar to the language
of an inadmissibility provision. By doing so, the BIA
(and the Eleventh Circuit below) categorically fore-
closed large categories of previously eligible individuals
from seeking Section 212(c) relief, even though relief is
available nunc pro tunc to otherwise similarly situated
persons who have left the country and reentered before

'* The Fourth and D.C. Circuits have yet to address the ques-
tion presented, but those courts hear only a tiny fraction of the
total number of petitions for review from the BIA. Between Sep-
tember 30, 2005 and September 29, 2008, the Fourth Circuit heard
less than 2.7% of all BIA appeals, and the D.C. Circuit heard none
at all. See 2008 Annual Report at Table B-3.

22

the removal proceeding commenced. The decision be-
low should be reversed.

1. The BIA’s Blake decision creates an irrational
distinction between LPRs who have traveled abroad
and LPRs who have not, contrary to Section 212(c) as it
has consistently been interpreted and contrary to equal
protection.

Congress has long accepted the BIA’s application
of Section 212(c) to deportable LPRs who traveled
abroad after their convictions and before the initiation
of proceedings. When Congress enacted Section 212(c)
in 1952, the BIA had interpreted its predecessor—the
Seventh Proviso to Section 3 of the Immigration Act of
1917—to provide relief to an LPR in deportation pro-
ceedings who had previously traveled abroad, just as it
would have applied if he had been placed in exclusion
proceedings at the border. L-, 1 I. & N. Dec. at 5-6; see
also St. Cyr, 583 U.S. at 294 (noting that the INS “re-
lied on [the Seventh Proviso] to grant relief 1m deporta-
tion proceedings involving aliens who had departed and
returned to this country after the ground for deporta-
tion arose” (emphasis added)).

Congress is presumed to have been aware of the
BIA’s interpretation of the discretionary waiver as ap-
plicable to deportable LPRs. Lorillard v. Pons, 434
U.S. 575, 580-581 (1978). As the BIA explained shortly
after Section 212(c)’s enactment, Congress conducted a
“comprehensive study” of the Seventh Proviso before
enacting Section 212, “[yJet there is nothing to indicate
that Congress wished to cut off this unique relief in de-
portation proceedings.” Matter of S-, 6 I. & N. Dec.
392, 396 (BIA 1955). Congress thus “effectively rati-
fied” the BIA’s practice of granting discretionary relief
from deportation as well as from exclusion. F'DA v.

23

Brown & Williamson Tobacco Corp., 529 U.S. 120, 144
(2000); see also Boeing Co. v. United States, 537 U.S.
437, 456-457 (2003) (Congress’s failure to override a
seven-year-old regulation when amending relevant
statutory provisions “serves as persuasive evidence
that Congress regarded that regulation as a correct
implementation of its intent”).'°

Following the Second Circuit’s 1976 decision in
Francis, the BIA and all of the courts of appeals agreed
that deportable LPRs who had mot traveled abroad
were constitutionally entitled to the same treatment
under Section 212(c) as LPRs who had. Francis, 532
F.2d at 278 (ruling that LPRs who had not traveled
abroad were “in like circumstances, but for irrelevant
and fortuitous factors,” to LPRs who had and therefore
should be “treated in a like manner”); see supra n.3.
The BIA implemented Francis using the “statutory
counterpart” test, which meant that Section 212(c) re-
lief was available to LPRs who were deportable for a
conviction that fell under a “counterpart” exclusion
provision.

Section 212(c) relief was widely available to LPRs
charged with being deportable on the basis of aggra-
vated felony convictions, including convictions for
crimes involving “sexual abuse of a minor,” because
most such convictions are also grounds for exclusion—

'S The Ninth Circuit, which recently held Section 212(c) inap-
plicable to deportable LPRs (Abebe, 554 F.3d at 1207), ignored
congressional acquiescence in the BIA’s interpretation of Section
212(c) as applicable to deportable LPRs. Indeed, under the Ninth
Circuit’s rationale, Mr. St. Cyr would have been ineligible for Sec-
tion 212(c) relief because he was charged as deportable. 533 U.S.
at 293.

24

“crimes involving moral turpitude” under INA
§ 212(a)(2)(A)(i). The BIA and numerous court of ap-
peals decisions recognized the proper application of
Section 212(c) relief in such aggravated felony cases.
See supra pp. 11-18, nn.6-7. Although Congress
amended the INA after Francis, it has not cast doubt
on that consistent interpretation of Section 212(c). See
supra n.8.

After the 1996 repeal of Section 212(c), the BIA at-
tempted to apply the repeal retroactively to LPRs who
had pled guilty before the repeal was enacted. EF.g., St.
Cyr v. INS, 229 F.3d 406, 409 (2d Cir. 2000) (observing
that the BIA denied St. Cyr’s application for Section
212(c) relief “specifically” because IIRIRA repealed
that provision), affd, 5383 U.S. 289 (2001). After this
Court reversed that practice in St. Cyr, the BIA tried
another tack, claiming for the first time that eligibility
“turns on whether Congress has employed similar lan-
guage to describe substantially equivalent categories of
offenses.” Blake, 23 I. & N. Dec. at 728 (emphasis
added). While acknowledging that “there may be con-
siderable overlap” between deportation provisions like
“sexual abuse of a minor” offenses and inadmissibility
provisions like “crime[] involving moral turpitude,” the
BIA claimed that the “two categories of offenses [were]
not statutory counterparts.” Id.

The BIA has admitted that this was “a change in
law.” Cardona, 2005 WL 3709244. It was also contrary
to the settled interpretation of Section 212(c) acknow!-
edged in the BIA’s own decisions. The BIA never at-
tempted to explain why differences in the wording of
deportation and inadmissibility provisions—most of
which were independently amended at different
times—should control whether an LPR is eligible for
Section 212(c) relief. See Blake v. Carbone, 489 F.3d at

25

102 (“Congress did not employ similar terms when
writing the grounds of exclusion and grounds of depor-
tation 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.”). Indeed,
the BIA held decades ago that a waiver of exclusion
based on a particular criminal conviction also waived
any basis for deportation based on “the same criminal
conviction,” without regard to the language of the
statutory subsections. G-A-, 71. & N. Dec. at 275; see
Abebe, 493 F.3d at 1109 (Berzon, J., concurring).

The BIA’s new approach, like that of the Eleventh
Circuit below, draws an arbitrary and irrational line
based on recent travel abroad. LPRs who pled guilty
to a pre-1997 offense that qualifies as both a “sexual
abuse of a minor” aggravated felony and a “crime in-
volving mora! turpitude” may still seek Section 212(c)
relief if they depart the country and return, by invok-
ing the nunc pro tunc procedure. But under Blake,
identically-situated LPRs who did not depart the coun-
try are categorically ineligible for relief. Making Sec-
tion 212(c) relief turn on whether a person has or has
not left the country, in the face of consistent and con-
trary judicial and agency decisions before 2005, is arbi-
trary and capricious. See 5 U.S.C. § 706(2)(A). That is
particularly the case given that Section 212(c) is de-
signed to favor those LPRs who have strong ties to the
United States. See Francis, 5382 F.2d at 278; see also
Rosario v. INS, 962 F.2d 220, 225 (2d Cir. 1992) (noting
the government’s position that Section 212(c)’s purpose
is to provide relief to “aliens who have developed such
strong ties to this country that exclusion or deportation

26

would be unjustly harsh” (internal quotation marks
omitted)).'°

The BIA’s new approach is also inconsistent with
the guarantee of equal protection in the Due Process
Clause of the Fifth Amendment, which protects LPRs
as well as citizens. Mathews v. Diaz, 426 U.S. 67, 77-78
(1976); Wong Wing v. United States, 163 U.S. 228, 238
(1896). The BIA may not make discretionary waivers
of deportation available only to a subcategory of simi-
larly situated deportable LPRs on the basis of an irra-
tional classification, such as recent travel abroad. See
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 482,
440 (1985) (“The general rule is that legislation ... will
be sustained if the classification drawn by the statute is
rationally related to a legitimate state interest.”); Yick
Wo v. Hopkins, 118 U.S. 356, 373-374 (1886) (“Though
the law itself be fair on its face ... if it is applied and
administered by public authority ... so as practically to
make unjust and illegal discriminations between per-
sons in similar circumstances, material to their rights,

'© Blake is also arbitrary and capricious in that it gives the
government an exclusive right to determine whether Section
212(c) relief will be available in many cases. Because a criminal
conviction can often render an individual deportable under more
than one provision—e.g., assault may be both a “crime involving
mora) turpitude” (waivable under Blake) and a “crime of violence”
(not waivable under Blake and Brieva-Perez)—the B1A’s new rule
places Section 212(c) eligibility entirely under the government's
control. In applying Blake, courts of appeals have conceded that
certain LPRs would be eligible for a Section 212(c) waiver if the
government had chosen to assert a criminal conviction as a crime
involving moral turpitude rather than an aggravated felony. See
Dalombo Fontes v. Gonzales, 483 F.3d 115, 122 (1st Cir. 2007); see
also Kim, 468 F.3d at 62-63.

27

the denial of equal justice is still within the prohibition
of the constitution.”).

Mr. De la Rosa’s conviction is indisputably for a
crime involving moral turpitude (see Ramsey v. INS, 55
F.3d 580, 582 (11th Cir. 1995)), which is a ground of in-
admissibility that would have allowed him to seek Sec-
tion 212(c) relief nunc pro tunc had he left the country.
Neither the government nor the decision below sug-
gested otherwise. Yet the Eleventh Circuit offered no
rational] reason for affording worse treatment to an
LPR like Mr. De la Rosa who never left the country af-
ter his arrival than to LPRs who did. See Mathews, 426
U.S. at 83 (noting that it is “of greatest importance” in
the equal protection analysis that “those who qualify
under the test Congress has chosen miy reasonably be
presumed to have a greater affinity with the United
States than those who do not”).

The Second Circuit’s approach, by contrast, is faith-
ful to the BIA’s longstanding and accepted interpreta-
tion of Section 212(c), and it avoids the irrational dis-
tinction inherent in the Eleventh Circuit’s decision. As
the Second Circuit held, an LPR should be eligible to
apply for Section 212(c) relief “if his or her particular
aggravated felony offense could form the basis of exclu-
sion under § 212(a) as a crime of moral turpitude.”
Blake v. Carbone, 489 F.3d at 104.

That approach, which the BIA and the courts fol-
lowed for nearly thirty years under F'rancis, does not
create any distinction based on departure from the
United States. Rather, it simply continues the long-
accepted rule that an LPR who would be entitled to
seek relief nunc pro tunc from deportation, had he de-
parted, remains eligible if he did not depart. See, e.g.,
Matter of Fuentes-Campos, 21 I. & N. Dec. 905, 913

28

(BIA 1997) (“In Francis ... [the Second Circuit] con-
cluded that the Board violated the constitutional re-
quirement of equal protection when if. permitted one
alien in deportation proceedings to apply for a waiver
but denied permission to another alien in deportation
proceedings, based solely on the fact that one had de-
parted and returned prior to the deportation proceed-
ings while the other had not.”)."’

The Second Circuit accordingly directed the BIA to
determine whether the LPR’s conviction was a “crime
involving moral] turpitude” that would have been waiv-
able nunc pro tunc had he departed the United States
and returned, and, if it was, to consider the Section
212(c) application on the merits. 489 F.3d at 105. The
BIA’s failure to do likewise in Mr. De la Rosa’s case
was arbitrary and capricious, inconsistent with the set-
tled interpretation of Section 212(c), and unconstitu-
tional.’®

2. The BIA’s Blake decision was also an improper
retroactive application of an erroneous interpretation
of the 2004 DOJ regulation, which sought to implement
St. Cyr, not to confine it. The regulation provides that
Section 212(c) relief “shall be denied if ... [t]he alien is
deportable under former section 241 of the Act or re-

The Ninth Circuit performed the wrong comparison: it
compared deportable LPRs with inadmissible LPRs. Abebe, 554
F.3d at 1206. The correct comparison is between two groups of
deportable LPRs: one group that has left the country and reen-
tered, and one that has not. Blake v. Carbone, 489 F.3d at 95;
Francis, 532 ¥ 2d at 273.

'® On remand from the Second Circuit, an IJ found Mr. Blake
eligible for a Section 212(c) waiver and granted relief. The gov-
ernment did not appeal.

29

movable under [Slection 237 of the Act on a ground
which does not have a statutory counterpart in
[Slection 212 of the Act.” 8 C.F.R. § 1212.3(f)(5). On its
face, this regulation is consistent with the BIA’s prior
rulings that an LPR deportable for an aggravated fel-
ony conviction was eligible for Section 212(c) relief if
the conviction wouid also fall under a counterpart in-
admissibility provision.

In Blake, the BIA purported to interpret the regu-
lation differently, not based on anything in the regula-
tion itself, but on an anonymous commenter’s opinion,
cited in the preamble to the final regulation, that Sec-
tion 212(c) relief should be denied “ ‘if there is no com-
parable ground of inadmissibility for the specific cate-
gory of aggravated felony charged. ... [Flor example,
the rule should not apply to aggravated felons charged
with deportability under specific types or categories of
aggravated felonies such as “Murder, Rape, or Sexual
Abuse of a Minor” or “Crime of Violence” aggravated
felonies.’” 23 I. & N. Dec. at 726 (quoting 69 Fed. Reg.
57,826, 57,831 (Sept. 28, 2004)).

The commenter misinterpreted the statutory coun-
terpart test by focusing on the category of aggravated
felony charged rather than the underlying offense. The
commenter did not identify a single decision forbidding
an LPR with a conviction in any of the identified ag-
gravated felony categories from seeking Section 212(c)
relief. As noted above, the statutory counterpart rule
affected LPRs with convictions for firearms offenses or
entry without inspection. See supra p. 10, n.4 & n.5;
Hernandez-Casillas, 20 I. & N. Dec. at 282 n.4. And
contrary to the commenter’s assertion, Section 212(c)
can be used to waive deportation for crimes such as
murder and rape, although such serious offenses re-
quire a heightened showing in order to warrant a fa-

30

vorable exercise of discretion. See 6 Gordon, Mailman
& Yale-Loehr, Immigration Law & Procedure
§ 74.04[1][a], [2][g¢] (2007).””

But even if the commenter’s interpretation were
correct and constitutional (and it is neither), the BIA
cannot use an adjudicatory proceeding to apply a regu-
lation retroactively, when no statutory or regulatory
language envisions retroactive application. See Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 208-209 (1988)
(“{[A]dministrative rules will not be construed to have
retroactive effect unless their language requires this
result. .... Even where some substantial justification
for retroactive rulemaking is presented, courts should
be reluctant to find such authority absent an express
statutory grant.”).

II. THIS CASE PRESENTS AN ISSUE OF EXCEPTIONAL
AND CONTINUING IMPORTANCE TO NUMEROUS LEGAL
PERMANENT RESIDENTS

The LPRs most affected by the BIA’s decision in
Blake include many who have strong claims for a dis-
cretionary waiver of removal. As this Court has ob-
served, Section 212(c) relief is granted based on criteria
including “the seriousness of the offense, evidence of
either rehabilitation or recidivism, the duration of the
alien’s residence, the impact of deportation on the fam-

‘The DOJ , in the “supplementary information” accompany-
ing the final regulation, agreed that “ ‘an alien who is deportable or
removable on a ground that does not have a corresponding ground
of exclusion or inadmissibility is ineligible for section 212(c) re-
lief’ ” Blake, 23 I. & N. Dec. at 726-727 (quoting 69 Fed. Reg.
57,831). It did not, however, take any position on the commenter’s
enumeration of the various offenses that the commenter believed
lacked a statutory counterpart.

31

ily, the number of citizens in the family, and the charac-
ter of any service in the Armed Forces.” St. Cyr, 533
US. at 296 n.5 (citing Matter of Marin, 16 1. & N. Dec.
581 (BIA 1978)). Mr. De la Rosa’s offense, which took
place when he was twenty (he is now 36), did not in-
volve coercion or violence. An IJ found him to be “re-
habilitated.” App. 39a. He lived in the United States
for nearly twenty years, has three U.S. citizen children
aged three, seven, and ten who depend on him, and has
a U.S. citizen father and several U.S. citizen siblings,
nieces, and nephews. The record is replete with sup-
porting statements and financial information attesting
to his strong work ethic and good standing in his com-
munity. C.A. A.R. 100-169.

Mr. De la Rosa is not alone. Because deportable
“aggravated felony” offenses have been defined broadly
and “without regard to how long ago they were com-
mitted[,] ... the class of aliens whose continued resi-
dence in this country has depended on their eligibility
for § 212(c) relief is extremely large, and not surpris-
ingly, a substantial percentage of their applications for
§ 212(c) relief have been granted.” St. Cyr, 533 U.S. at
295-296 (noting that from 1989 to 1995, Ҥ 212(c) relief
was granted to over 10,000 aliens”). Despite its repeal
in 1996, Section 212(c) continues to provide critical re-
lief to numerous LPRs who were convicted of a crime
long ago, but are otherwise deserving members of their
local United States communities. See id. at 296 n.6
(noting increased importance of Section 212(c) relief fol-
lowing 1996 expansion of “aggravated felony” definition
to include “more minor crimes which may have been
committed many years ago”).

Petitioner does not contend that he has a legal right
to relief; Section 212(c) remains and has always been a
discretionary provision. But he does have a right to

32

have the agency exercise that discretion following an
evidentiary hearing on the merits—a hearing that he
was entitled to as of February 2005 and was only de-
nied because of the BIA’s retroactive “change in law.”
Cardona, 2005 WL 3709244; see also App. 43a-44a.

Absent this Court’s intervention, numerous deserv-
ing legal immigrants will be unlawfully denied relief
from removal based only on an accident of geography—
the jurisdiction in which their immigration proceedings
happened to be held. See App. 45a-52a (non-exhaustive
list of cases affected by BIA’s decision in Blake). But
for Mr. De la Rosa’s and his wife’s decision to raise
their family in Florida rather than New York, this “re-
habilitated” individual would most likely still be work-
ing productively and supporting his U.S. citizen chil-
dren and family.”°

CONCLUSION

The petition for a writ of certiorari should be
granted.

20 ‘This Court denied certiorari in Gonzalez-Mesias v. Holder,

129 S. Ct. 2042 (2009), but at that time the Eleventh Circuit had
not addressed the issue (see App. la (noting that the question pre-
sented was “an issue of first impression”)), and the Ninth Circuit
was still considering the petition for full court rehearing in Abebe.
The views of those circuits are now known and have only deepened
the circuit split, and no further percolation among the circuits
should be expected. Moreover, the petition in Gonzalez-Mesias
may not have fully apprised the Court of the frequency with which
the issue arises. App. 45a-52a. We submit that this issue is now
fully ripe for this Court’s review.

oo
Respectfully submitted.

SETH P. WAXMAN MARK C, FLEMING
PAUL R. Q. WOLFSON Counsel of Record
WILMER CUTLER PICKERING MEGAN BARBERO

HALE AND DORR LLP ELIZABETH KENT CULLEN
1875 Pennsylvania Ave. NW WILMER CUTLER PICKERING
Washington, DC 20006 HALE AND DORR LLP
(202) 663-6000 60 State Street

Boston, MA 02109
MARIA I. CASABLANCA (617) 526-6000
CASABLANCA LEGAL GROUP
444 Brickell Ave., Suite 416
Miami, FL 33131
(305) 577-4220

NOVEMBER 2009

APPENDIX

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 08-13861
Agency No. A42-086-274
[579 F.3d 1327]

JOSE ERASMO DE LA ROSA,
Petitioner,
v.

U.S. ATTORNEY GENERAL,
Respondent.

Petition for Review of a Decision of the
Board of Immigration Appeals

[STAMP: FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 20, 2009
THOMAS K. KAHN
CLERK]

(August 20, 2009)

Before DUBINA, Chief Judge, and BIRCH and WIL-
SON, Circuit Judges.

PER CURIAM:

This case presents us with an issue of first impres-
sion in our circuit. Jose Erasmo De la Rosa (“De la
Rosa”) petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration

2a

Judge’s (“IJ”) determination that he was statutorily in-
eligible for a waiver of his deportation charge. He con-
tends that his conviction of the aggravated felony of
sexual abuse of a minor qualifies him to apply for a
waiver of deportation pursuant to the former Immigra-
tion and Nationality Act (“INA”) § 212(c), 8 U.S.C.
§ 1182(c) (repealed 1996) (“S$ 212(c) waiver”). We dis-
agree and AFFIRM.

I. BACKGROUND!

In June 2004, De la Rosa was issued a Notice to
Appear (“NTA”). The NTA alleged that De la Rosa,
although having been legally admitted to the United
States, was deportable’ because (1) he was from the

' We conclude that we have jurisdiction to entertain De la
Rosa’s appeal because, although he is a convicted felon, his claims
“are constitutional and legal in nature.” Alexandre v. U.S. Att’y
Gen., 452 F.3d 1204, 1205 (per curiam) (citing 8 U.S.C.
§ 1252(a)(2)(C), (D)).

The respondent provides a useful tutorial on terminology,
which we recite in full:

Prior to the 1996 amendments to the INA, aliens
who were ineligible to be admitted to the United States
were referred to as “excludable” while aliens who had
gained admission but were no longer eligible to remain in
the United States were referred to as “deportable.” See
United States v. Lopez-Gonzalez, 183 F .3d 933, 934-35 n.4
(9th Cir. 1999). The INA also provided for separate
types of immigration proceedings, depending on whether
an alien was excludable or deportable. /d.

Under current nomenclature, aliens previously re-
ferred to as “excludabie” are now referred to as “inad-
missible.” Jd.; INA § 21%, 8 U.S.C. § 1182. Moreover, the
separate exclusion and deportation proceedings have
now been consolidated into “removal proceedings.” /d.;

3a

Dominican Republic and was not a citizen or a national
of the United States; (2) he was admitted to the United
States in March 1989 as an immigrant; and (3) in 1995,
he was convicted in a Florida court of committing a
lewd act upon a child under the age of sixteen in viola-
tion of Florida Statute § 800.04(3). The NTA charged
that De la Rosa was subject to deportation from the
United States pursuant to INA §§ 237(a)(2)(A)(iii)’ and
237(a\X(2)(E)(i) because he had been convicted both of an
aggravated felony as defined in INA § 101(a)(43)(A)—a
law relating to murder, rape, or sexual abuse of a mi-
nor—and a crime of domestic violence, 7.¢e., child abuse.
The record indicates that De la Rosa pled nolo conten-
dere to his aggravated felony charge.

De la Rosa admitted to the allegations in the NTA
and conceded that he was deportable but sought relief
in the form of a § 212(c) waiver. The government
moved to pretermit his application for a § 212(c) waiver
and maintained that De la Rosa’s aggravated felony
conviction rendered him ineligible for § 212(c) relief in
accordance with the BIA’s decision in In re Blake, 23 I.
& N. Dec. 722 (BIA 2005). The IJ agreed, pretermitted

INA § 240, 8 U.S.C. § 1229a.... [TJhere is no significant
difference between the terms “excludable” and “inadmis-
sible.” Nor is there any significant differen[ce] between
“removal” proceedings and “exclusion” or “deportation”
proceedings.

Respondent’s Brief at 9 n.7. We use these terms interchangeably
throughout our opinion.

> Under INA § 237(a)(2)(A)iii), 8 U.S.C. § 1227(a)(2)(A)(iii),
“{a)ny alien who is convicted of an aggravated felony at any time
after admission is deportable.”

4a

De la Rosa’s application for § 212(c) relief, and ordered
him removed from the United States.

De la Rosa appealed to the BIA and claimed, inter
alia, that his aggravated felony conviction constituted a
“erime involving moral turpitude” as contemplated by
INA § 212(a)(2), thus allowing him to apply for the
§ 212(c) waiver. Administrative Record (“AR”) at 11-
138. The BIA disagreed, dismissed the appeal, and
found that Blake precluded De la Rosa from obtaining a
§ 212(c) waiver. The BIA reasoned that “[a]s the ag-
gravated felony ground of removal applicable in this
case ... has no statutory counterpart in the grounds of
inadmissibility under section 212(a) of the Act, the ag-
gravated felony charge cannot be waived as a ground of
deportability under former section 212(c).” Jd. at 2.

Although the question presented in this case con-
cerns De la Rosa’s eligibility for a § 212(c) waiver, our
full consideration of that issue demands a close analysis
of both the history of INA § 212(c) and how that provi-
sion has been interpreted by our sister circuits. Ac-
cordingly, we indulge in a brief survey of the legal land-
scape in this area.

A. History of INA § 212(c), 8 U.S.C. § 1182(c)

INA § 212(c) concerns only persons in exclusion
proceedings. The statutory language in INA § 212(a)
lists classes of excludable aliens who are ineligible for
admission to the United States.* INA § 212(a); 8 U.S.C.
§ 1182(a). INA § 212(c), however, vests the Attorney
General with the discretion to waive exclusion for

* One of these excludable classes includes aliens convicted of
“a crime involving moral turpitude.” INA § 212(a)(2)A)i)(1);
8 U.S.C. § 1182(aX2)(A)i TD).

T_T — ©

5a

“{ajliens 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). Even
though INA § 212(c) was repealed by the Illegal Immi-
gration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”),° relief remains available to aliens
“whose convictions were obtained through plea agree-
ments 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.” JNS v. St.
Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293, 150 L. Ed.
2d 347 (2001); see also Alexandre, 452 F.3d at 1207
(stating that those who had pled nolo contendere prior
to April 1997 could seek § 212(c) relief pursuant to 8
C.F.R. § 1008.44). Because De la Rosa pled nolo con-
tendere to the crime rendering him deportable in 1995,
he was eligible to apply for § 212(c) relief.

As we have noted, on its face § 212(c) applies only
to exclusion proceedings. That said, the Department of

> We note that the Attorney General is accorded similar dis-
cretion to suspend deportation of a person if that person meets a
ten-year residence requirement, possesses good moral character,
and would be subject to exceptional and extremely unusual hard-
ship if deported. INA § 244; 8 U.S.C. § 1254(a)(2) (repealed 1996).

: Congress cut back on the availability of § 212(c) relief prior
to its eventual repeal by the IIRIRA. In the Immigration Act of
1990, Pub. L. No. 101-649, 104 Stat. 4978, 5052, Congress limited
§ 212(c) relief to aliens who had served fewer than five years in
prison. The Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), then made
§ 212(c) relief unavailable to aliens convicted of aggravated felo-
nies and other specified crimes. See AEDPA § 440(d).

6a

Homeland Security (formerly the Immigration and
Naturalization Service (“INS”)) has, for several dec-
ades, permitted aliens subject to deportation to seek
§ 212(c) relief nune pro tunc.’ The rationale for the ex-
pansion was that if the INS allowed a resident alien to
reenter the country even though he was excludable and
then tater sought to deport him, the alien should not be
put in a worse position than if he had been excluded in
the first instance. See Matter of G-A-, 71. & N. Dec.
274, 275-76 (BIA 1956). In a previous recitation of §
212(c)’s tortuous history, we explained how this exten-
sion produced inequities in its application. See Farqu-
harson v. U.S. Att'y Gen., 246 F.3d 1317, 1323 (11th Cir.
2001). “While one resident alien who became deport-
able and then voluntarily left the country became eligi-
ble for waiver upon reentry, another alien who was de-
portable for the same reason but never left the country
had no recourse.” /d.

In Francis v. INS, 532 F.2d 268, 272 (2d Cir. 1976),
the Second Circuit addressed this distinction and con-
cluded that it was “not rationally related to any legiti-
mate purpose of the statute.” Jd. Instead of striking
the statute, however, the Second Circuit elected to ex-
tend § 212(c) relief to deportable aliens regardless of
whether they had left the United States after commit-
ting the act rendering them deportable. See id. at 273.
The BIA quickly adopted the reasoning of Francis and
likewise extended § 212(c) relief to deportable aliens.
See Matter of Silva, 16 1. & N. Dec. 26, 30 (BIA 1976).

: “Having retroactive lega] effect through a court’s inherent
power.” Black’s Law Dictionary 1097 (7th ed. 1999).

7a

The BIA later qualified the extension in Matter of
Wadud, 19 I. & N. Dec. 182 (BIA 1984). In Wadud, the
BIA settled upon the comparable grounds test as a
means of determining whether a deportee and an ex-
cludee were similarly situated. Under the test, eligibil-
ity for § 212(c) relief turned on whether the “ground of
deportation charged is also a ground of inadmissibility.”
Id. at 184 (citations omitted). The BIA expressly “de-
cline[d] to expand the scope of section 212(c) relief in
cases where the ground of deportability charged is not
also a ground of inadmissibility.” /d. at 185.

In 1991, the BIA softened the comparable grounds
test somewhat in Matter of Meza, 20 I. & N. Dec. 257
(BIA 1991). In Meza, the BIA applied the statutory
framework to an alien deportable for an aggravated
felony conviction. Although no ground of exclusion ex-
pressly references “aggravated felonies,” the BIA
nonetheless concluded that “a waiver under section
212(c) is not unavailable to an alien convicted of an ag-
gravated felony simply because there is no ground of
exclusion [in § 212(a)] which recites the ““ords, ‘con-
victed of an aggravated felony.’” Jd. at 2). Instead,
the BIA looked to whether the “specific category of ag-
gravated felony at issue” had a comparable ground of
inadmissibility in § 212(a). Jd. The BIA ultimately de-
termined that an alien deportable for an aggravated
felony of “illicit trafficking in any controlled substance,”
as defined in INA § 101(a)(43)(B), 8 U.S.C.
§ 1101(a)(43)(B), was eligible for a § 212(c) waiver be-
cause the category of aggravated felony had a statutory

8a

counterpart of inadmissibility in INA § 212(a)(23), 8
U.S.C. § 1182(aX(23).* Id.

The comparable grounds test gathered ascendent
strength in Matter of Montenegro, 20 I. & N. Dec. 603
(BIA 1992), and Matter of Esposito, 21 I. & N. Dec. 1
(BIA 1995), both of which also effectively worked to
isolate Meza. In Montenegro, the respondent was
found deportable based on his conviction for assault
with a firearm. See Montenegro, 20 1. & N. Dec. at 605.
The respondent argued eligibility for § 212(c) relief un-
der Meza because his assault conviction constituted a
crime of moral turpitude—a comparable ground of ex-
clusion for purposes of § 212(c) eligibility. See id. The
BIA disagreed and distinguished Meza, limiting it to
“the unique situation created by the language and legis-
lative history of an amendment to section 212(c) by [the
Immigration Act of 1990], which indicated that some
aggravated felons are eligible for a section 212(c)
waiver in deportation proceedings even though there is
no single comparable ground of exclusion based on con-
viction of an aggravated felony.” Jd.

Likewise, in Esposito, the BIA again rejected the
respondent’s argument that his ineligibility for § 212(c)
relief due to a lack of a comparable exclusion ground
was cured because his offense supported some ground
of excludability. See Esposito, 21 I. & N. Dec. at 9. As
stated by the BIA, “[wJhile the respondent could be
deemed inadmissible within the meaning of section
212(a)(10) of the Act based in part on his firearms viola-
tion, this does not make him eligible for section 212(c)

* In 1990, INA § 212(aX23), 8 U.S.C. § 1182(a)(23) was revised
and redesignated at INA § 212(aX2A)iXID, 8 U.S.C.
§ 1182(aX2MAMi)IL). See Meza, 201. & N. Dec. at 260 n.5.

9a

relief. [His] firearms conviction standing alone sup-
ports a charge of deportation under section 241(a)(14),
[he] has in fact been found deportable based on this
charge, and section 212(c) cannot waive a charge of
deportability under section 241(a)(14) because there is
no counterpart among the grounds of inadmissibility in
section 212(a).” Jd. at 8 (citation and alterations omit-
ted). As in Montenegro, the BIA also stressed the lim-
ited reach of its decision in Meza. See id. at 9 (“Meza ...
is limited to the question of eligibility for section 212(c)
relief in the case of a conviction for a drug-trafficking
aggravated felony and is based on the specific amend-
ment to section 212(c) regarding aggravated felonies.”).

In the period between Montenegro and Esposito,
the Second Circuit decided Bedoya-Valencia v. INS, 6
F.3d 891 (2d Cir. 1998). In Bedoya-Valencia, the court
concluded that because entry without inspection—the
charged grounds of deportation at issue—logically can-
not have an analogue in the exclusion grounds, “coher-
ence and consistency” dictated providing § 212(c) relief
to aliens whose deportable offense was entry without
inspection. Jd. at 897. In extending the Francis rule,
the court unambiguously articulated its view of the ju-
dicial function in this area:

Absent any Congressional indication to the
contrary, we believe that coherence and consis-
tency are promoted by allowing the exercise of
§ 1182(c) [§ 212(c)] discretion with respect to
the deportation ground of entry without in-
spection. Francis effected a significant altera-
tion of the legal framework in this area, and in
the absence of any Congressional revisitation of
that framework in the aftermath of Francis,
courts must cope with the interstitial issue
posed by grounds of deportation that have no

10a

counterparts among the statutory grounds for
exclusion.

We recognize, of course, as we did in Fran-
cis, the paramount authority of the executive
and legislative branches of our national gov-
ernment with respect to immigration matters,
and the correspondingly limited role of the ju-
diciary. We also recognize, however, that fed-
eral courts can play an important role in inter-
stitial implementation of a legislative design,
especially when that design has already been
altered by a constitutionally based court deci-
sion.

Id. at 897-88 (citations omitted).

Bedoya-Valencia is particularly important because
we expressly rejected its reasoning four months later
in Rodriguez-Padron v. INS, 13 F.3d 1455, 1460 (11th
Cir. 1994). In Rodriguez-Padron, the petitioners were
subject to deportation based on their convictions for
firearms violations for which there was no analogous
ground for exclusion. See id. at 1458. The petitioners
argued that they should be allowed to seek the § 212(c)
waiver and relied, in part, on Bedoya-Valencia. See id.
at 1458-59. In rejecting this reliance on the Second Cir-
cuit’s rationale, we observed that in Bedoya-Valencia,
“(t]he Second Circuit (unlike the Attorney General in
Hernandez-Casillas’ and at least two other circuits)

” See Matter of Heriandez-Casillas, 20 1. & N. Dec. 262, 280-
93 (BIA 1990), affd mem., 983 F.2d 231 (5th Cir. 1993). In Her-
nandez-Casillas, the Attorney General reversed a BIA decision
making § 212(c) relief available to aliens deportable on the ground
of entry without inspection, concluding, inter alia, that “there

lla

was untroubled by the lack of a basis for this extension
[of the Francis rule] in the statutory text.” Id. at 1460.
We added that “{iJn this context, we believe that a
statute should be stretched only as far as necessary to
prevent unconstitutionality.” Jd. We also noted that
Congress could have specified firearms violations as
grounds for exclusion but had elected not to do so. Fi-
nally, and perhaps most significantly, we accorded
Chevron deference to the Attorney General’s holding in
Hernandez-Casillas—-namely, that the “Section 212(c)
waiver is available in the deportation context only to
the extent that the grounds of deportation are analo-
gous to one of the grounds for exclusion.” Jd. at 1460-
61; see also Chevron USA, Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 848, 104 S. Ct. 2778, 2781-
82, 81 L. Ed. 2d 694 (1984).

We confirmed our determination to guard against
further judicial extension of § 212(c) relief in Farquhar-
son. See 246 F.3d at 1825. In that case, we upheld the
comparable grounds approach in response to an equal
protection challenge by a petitioner who was found de-
portable for entry without inspection. See id. at 1318.
We concluded, in part, that Ҥ 212(c) has already been
stretched beyond its language in response to equal pro-
tection concerns, and further judicial redrafting would
serve only to pull the statute further from its moorings
in the legislative will.” Jd. at 1825 (quotation marks
and citation omitted).

In 2004, 8 C.F.R. § 1212.3(f)(5) codified the case law
in the area and provided that an application for relief
under § 212(c) must be denied if “(t]he alien is deport-

[was] no constitutional justification for [such] a further departure
from the statutory text.” /d. at 293.

12a

able under 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.” Jd.
And so the statutory counterpart test was born. The
BIA’s application of this framework in early 2005
proved to be a watershed moment in § 212(c) jurispru-
dence and is of particular significance in our considera-
tion of the case before us. See In re Blake, 23 1. & N.
Dec. 722 (BIA 2005).

In In re Blake, the BIA applied the statutory coun-
terpart framework and concluded that an alien deport-
able based on an aggravated felony conviction for sex-
ual abuse of a minor was ineligible for a § 212(c) waiver.
See id. at 726-29. The BIA found that the respondent
was ineligible for § 212(c) relief because “the aggra-
vated felony offense of sexual abuse of a minor has no
statutory counterpart in the section 212(a) grounds
of inadmissibility.” Jd. at 723. The BIA expressly
rejected the respondent’s contention _ that
§ 212(a)(2)(A)(i)(J), the provision rendering aliens in-
admissible who have been convicted of a crime of moral
turpitude, was comparable to his aggravated felony
charge. See id. at 727. The BIA distinguished its deci-
sion in Meza, which the respondent cited in support of
his argument, explaining that “(t]he instant case differs
from Matter of Meza in that the moral turpitude ground
of exclusion addresses a distinctly different and much
broader category of offenses than the aggravated fel-
ony sexual abuse of a minor charge.” Id. at 728. The
BIA further articulated its statutory counterpart ap-
proach as follows:

(W]hether a ground of deportation or removal
has a statutory counterpart in the provisions
for exclusion or inadmissibility turns on
whether Congress has employed similar lan-

13a

guage to describe substantially equivalent
categories of offenses. Although many fire-
arms offenses may also be crimes of moral tur-
pitude, the category of firearms offenses is not
a statutory counterpart to crimes of moral tur-
pitude. Similarly, although there may be con-
siderable overlap between offenses categorized
as sexual abuse of a minor and those considered
crimes of moral turpitude, these two categories
of offenses are not statutory counterparts.

The coverage of the offenses described
need not be a perfect match in order to be
statutory counterparts under the regulation so
long as the ground of inadmissibility addresses
essentially the same category of offenses under
which the removal charge is based. In Matter
of Meza, ... for example, the language used in
describing the drug-related aggravated felony
provision covered substantially the same cate-
gory of drug-related offenses addressed in the
exclusion ground. Under the regulation and
our precedent decisions, however, the test for
comparability is not met merely by showing
that some or many of the offenses included in
the charged category could also be crimes in-
volving moral turpitude.

Id. at 728-29 (quotation marks omitted).
B. Section 212(c) in the Wake of In re Blake

The BIA’s decision in In re Blake was not uni-
formly recognized as the last word on the issue. Al-
though it largely crystallized the grounds-based or
categorical approach of the statutory counterpart test

l4a

(“categorical approach”), the Second Circuit rejected its
reasoning on appeal in Blake v. Carbone, 489 F.3d 88,
101-04 (2d Cir. 2007), and fashioned an offense-based
approach as a counterpoint to the BIA’s approach. A
recent opinion by the Ninth Circuit has introduced yet
another formula for handling § 212(c) waivers. See
Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en
banc). Having already considered the categorical ap-
proach in some detail, we now examine the alternative
views advanced by the Second and Ninth Circuits re-
spectively.

1. Blake v. Carbone—An Offense-Based Approach

In Blake, the Second Circuit declined to accord def-
erence to the BIA’s interpretation of the statutory
counterpart rule, rejected the categorical approach as
violative of Francis, and set out its own offense-based
approach for determining a deportee’s eligibility for
§ 212(c) relief. After reciting Chevron’s familiar man-
date, the court concluded that because the statutory
counterpart rule “is a creature of constitutional avoid-
ance, arising from the ramifications of a prior constitu-
tional decision of this court, rather than the original
statute concerning whose interpretation the Attorney
General has conceded expertise,” deferring to the
BIA’s “determination of equal protection” would con-
stitute, in part, an abdication of its “responsibilit[y] to
uphold the Constitution.” Blake, 489 F.3d at 100 (quo-
tation marks and citation omitted).

In rejecting the categorical approach, the Second
Circuit observed that the BIA’s emphasis on the need
for substantially similar language in grounds of depor-
tation and grounds of exclusion was “strange” because
Congress “never contemplated that its grounds of de-
portation would have any connection with the grounds

15a

of exclusion.” Jd. at 102. As asserted by the court, be-
cause

the history of § 212(c) relief for deportees be-
gan not with an expression of congressional in-
tent but rather with Francis[,] ... Congress did
not employ similar terms when writing the
grounds of exclusion and grounds of deporta-
tion because it had no need to, making it an ex-
ercise in futility to search for similar language

to gauge whether equal protection is being af-
forded.

Id. (citation omitted).

The court also took issue with the BIA’s “incidental
overlap” language'® and concluded that the BIA’s re-
quirement that “all or substantially all of the offenses
under a particular ground of deportation must also fall
under the counterpart ground of exclusion” was not
supported by Francis:

The touchstone in Francis was the “irrelevant
and fortuitous” circumstance of traveling
abroad recently; the decision did not consider

'° The BIA further clarified its categorical approach in /n re
Brieva-Perez, 23 1. & N. Dec. 766, 773 (BIA 2005), aff'd sub. nom.
Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007). In Brieva,
the respondent was found deportable based on his conviction for
unauthorized use of a motor vehicle, an aggravated felony crime of
violence. See id. at 772. In applying the categorical approach, the
RIA determined that “[a]lthough there need not be perfect sym-
metry in order to find that a ground of removal has a statutory
counterpart in section 212(a), there must be a closer match than
that exhibited by the incidental overlap between section
101(a)(43)(F) (crime of violence) and section 212(aX2\A)i)(1)
(crime of moral turpitude).” Jd. at 773.

16a

whether equal protection requires that all or
even most offenses falling under a particular
ground of deportation must also fall under the
counterpart ground of exclusion. In short, eli-
gibility for relief in Francis turned on whether
the lawful permanent resident’s offense could
trigger § 212(c) were he in exclusion proceed-
ings, not how his offense was categorized as a
ground of deportation.

Id. (citation omitted).

The Second Circuit concluded its opinion in Blake
by staking out the contours of its offense-based ap-
proach to the statutory counterpart test:
“{PJetitioners’ eligibility for a § 212(c) waiver must turn
on their particular criminal offenses. If the offense that
renders a lawful permanent resident deportable would
render a similarly situated lawful permanent resident
excludable, the deportable lawful permanent resident is
eligible for a waiver of deportation.” /d. at 103.

2. Ninth Circuit’s Repudiation of the Francis Rule

The Ninth Circuit has taken a different tact alto-
gether. In Abebe, the court overruled its precedent
that both had adopted Francis and endorsed the statu-
tory counterpart test. See Abebe, 554 F.3d at 1207; see
also Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.
1981). In so doing, the court reassessed the “complex
legislative scheme” concerning § 212(c) waivers and af-
forded fresh consideration to “whether [it could] con-
ceive of a rational reason Congress may have had in
adopting it.” Abebe, 554 F.3d at 1206. The Abebe court
found that it could and explained as follows:

Congress could have limited section 212(c) re-
lief to aliens seeking to enter the country from

17a

abroad in order to create an incentive for de-
portable aliens to leave the country. A deport-
able alien who wishes to obtain section 212(c)
relief will know that he can’t obtain such relief
so long as he remains in the United States; if he
departs the United States, however, he could
become eligible for such relief. By encouraging
such self-deportation, the government could
Save resources it would otherwise devote to ar-
resting and deporting these aliens. Saving
scarce resources that would otherwise be paid
for by taxpayers is certainly a legitimate con-
gressional objective.

Id. (quotation marks, citations and alterations omitted).
By repudiating Francis and eliminating the statutory
counterpart rule altogether, the Ninth Circuit has
forged its own path and neatly avoids any consideration
of the relative merits of the Second Circuit’s offense-
based approach versus the categorical approach fol-
lowed by the majority of the other circuits who have
entertained the issue.

As it stands, there exists a three-way circuit split
on the question of whether certain deportees who have
not temporarily left the country are eligible for § 212(c)
relief. The BIA and the majority of our sister circuits
have adopted the Francis rule and have applied the
categorical approach when dealing with the resulting
statutory counterpart test.'' Under the categorical ap-

'! See, e.g., Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 64-65
(1st Cir. 2008); Caroleo v. Gonzales, 476 F.3d 158, 162-63 (3d Cir.
2007); Vo v. Gonzales, 482 F.3d 363, 372 (5th Cir. 2007); Koussan v.
Holder, 556 F.3d 403, 412-13 (6th Cir. 2009); Valere v. Gonzales,
473 F.3d 757, 762 (7th Cir. 2007); Soriano v. Gonzales, 489 F.3d 909
(8th Cir. 2006) (per curiam).

18a

proach, the central inquiry is whether a petitioner’s
ground of deportation has a comparable ground of ex-
clusion under § 212(a). This approach focuses on the
categorical similarity of the corresponding grounds and
avoids any examination of a petitioner’s underlying of
fense and whether it could render him excludable under
§ 212(a).

The Second Circuit also has adopted the Francis
rule but employs an offense-based approach when con-
sidering the resultant statutory counterpart test. Un-
der this approach, the inquiry focuses on a petitioner’s
underlying offense. If the underlying offense responsi-
ble for a petitioner’s deportation could render him ex-
cludable under § 212(a), then he is eligible for § 212(c)
relief.

Finally, the Ninth Circuit has abandoned the F'ran-
cis rule and its accompanying statutory counterpart
test altogether. In the wake of Abebe, deportable aliens
in the Ninth Circuit who have not left the country are
not eligible for § 212(c) relief. With this menu of op-
tions in mind, we now consider the ments of De la
Rosa’s petition for review.

Il. DISCUSSION

We review the BIA’s legal determinations de novo.
See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190,
1195 (11th Cir. 2006). However, our review of the
BIA’s interpretation of the statutes it administers “is
informed by the principle of deference articulated in
Chevron.”'? Id. (quotation marks and citation omitted).

'? We have held that Chevron deference is not appropriate in
cases in which a single member of the BIA issues a non-

19a

De la Rosa advances several arguments in support
of his central contention that the BIA erred in finding
him ineligible for § 212(c) relief. First, he argues that
the BIA’s decision in Jn re Blake contradicts BiA and
federal circuit precedent on the issue. De la Rosa claims
that such precedent provides that § 212(c) relief is
available to waive non-drug aggravated felony convic-
tions that are also crimes involving moral turpitude.
Our view of the applicable BIA precedent is at odds
with De la Rosa’s interpretation. As early as 1984, the
BIA rejected the argument that a respondent could ob-
tain a § 212(c) waiver if his underlying offense consti-
tuted a crime of moral turpitude even if his charged
ground of deportability lacked a statutory counterpart
in the grounds of inadmissibility. See Wadud, 19 I. &
N. Dec. at 185-86. When addressing the statutory
counterpart test, the BIA consistently has followed a
categorical approach that focuses on the charged
ground of deportability rather than the underlying of-
fense. See Esposito, 21 I. & N. Dec. at 9; Montenegro,
20 I. & N. Dec. at 605; Meza, 20 I. & N. Dec. at 259;
Wadud, 19 I. & N. Dec. at 185-86. Consequently, /n re
Blake’s focus on the charged grounds of deportation
instead of the underlying offense did not represent a
departure from prior BIA practice. See Jn re Blake, 23
I. & N. Dec. at 729. De la Rosa’s reliance on unpub-
lished BIA decisions is misplaced as the BIA accords no
precedential value to its unreported decisions. See
Matter of Zangwill, 18 I. & N. Dec. 22, 27 (BIA 1981),

precedential decision that does not rely on existing BIA or federal
court precedent. See Quinchia v. U.S. Att'y Gen., 552 F.3d 1255,
1258 (11th Cir. 2008). Whereas the case before us was decided by a
single member of the BIA, it is distinguishable from Quinchia be-
cause it relied on the BIA’s precedent in Blake, See id.

20a

overruled on other grounds, Matter of Ozkok, 191. & N.
Dec. 546 (BIA 1988),

De la Rosa also asserts that Jn re Blake is inconsis-
tent with the Attorney General’s decision in Hernan-
dez-Casillas. See Hernandez-Casillas, 20 1. & N. Dee.
at 280-93. Seizing on the Attorney General’s comments
in a footnote’’, De la Rosa disregards the body of the
opinion which unambiguously supports the categorical
approach and expressly states that equal protection
does not require that discretionary relief be made
available “where the ground for deportation could not
be waived if asserted in an exclusion case.” Jd. at 288.

De la Rosa again attempts to glean support for his
position with a curious construction of § 212(c)’s plain
language. He contends that § 212(c) provides that an
alien convicted of an aggravated felony with a term of
imprisonment of less than five years could qualify for
§ 212(c) relief as long as his conviction caused inadmis-
sibility. So far, so good. But De la Rosa then asserts
that this language somehow implies that any aggra-
vated felon with a term of imprisonment of less than
five years qualifies for § 212(c) relief. We disagree and
point out that the language at issue merely excludes a
class of aggravated felons from eligibility for § 212(c)
relief. See INA § 212(c); 8 U.S.C. § 1182(c) (providing
that “[t]he first sentence of this subsection shall not ap-
ply 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”). In
any event, De la Rosa appears to agree that a de-

'> See id. at 282 n.4 (pointing out that two grounds of deporta-
tion—illegal entry and conviction of illegal possession of certain
firearms—-have no analogue in the grounds for exclusion).

2la

portee’s eligibility for § 212(c) relief is predicated on
whether, as he styles it, “the [deportee’s] conviction
caused inadmissibility.” Petitioner’s Brief at 4. In our
view, this admission marks De la Rosa’s argument as
superfluous and returns us to where we started.

As previously noted, De la Rosa maintains that
federal courts also have extended § 212(c) relief to de-
portees convicted of aggravated felonies unrelated to
drugs. He cites three cases from our circuit in support
of this argument—Adefemi v. Ashcroft, 358 F.3d 828
(llth Cir. 2004); Cunningham v. U.S. Att’y Gen., 335
F.3d 1262 (11th Cir. 2003) (per curiam); and Ramsey v.
INS, 55 F.3d 580 (11th Cir. 1995) (per curiam). We con-
clude that these cases are inapposite. We vacated the
Adefemi opinion cited by De la Rosa, reheard the case
en banc, and ultimately determined that the petitioner
was not eligible for § 212(c) relief. See Adefemi v.
Ashcroft, 386 F.3d 1022, 1031 (11th Cir. 2004) (en banc).
In Cunningham, the petitioner was denied the oppor-
tunity to apply for § 212(c) relief because the IJ applied
the wrong law. See Cunningham, 335 F.3d at 1264,
1268. We determined that the petitioner was entitled
to apply for relief and remanded the case so that the IJ
could apply the appropriate law. See id. at 1268. Fi-
nally, in Ramsey, we denied the petitioner’s application
for § 212(c) relief on the merits. See Ramsey, 55 F.3d at
582-83. De la Rosa transforms our lack of analysis re-
garding Ramsey’s statutory eligibility for § 212(c) relief
into a holding that deportees convicted of aggravated
felonies that are crimes of moral turpitude are statuto-
rily eligible for § 212(c) relief. We reject De la Rosa’s
expansive reading of our holding and conclude that
Ramsey lends no support to De la Rosa’s argument.

Although we have dispensed with the bulk of De la
Rosa’s explicit challenges, we now circle back and ad-

22a

dress the implicit argument underpinning his position.
De la Rosa’s petition for review expressly recites nei-
ther equal protection nor the Second Circuit’s decision
in Blake as a basis for appeal. That said, his argument
can be fairly read as a challenge to the BIA’s categori-
cal approach to the statutory counterpart test. He ar-
gues that he is eligible for § 212(c) relief because his
conviction of the aggravated felony of sexual abuse
could qualify as a crime of moral turpitude, a compara-
ble ground of inadmissibility under § 212(a). In urging
us to look to the conduct or offense underlying his con-
viction, De la Rosa effectively is asking us to adopt the
Second Circuit’s offense-based approach to the statu-
tory counterpart test. Because Blake’s holding rests on
a more expansive view of equal protection than we find
palatable, we must decline. Instead, we join the major-
ity of our sister circuits who have considered the issue
and adopt the categorical approach to the statutory
counterpart test.'*

Our decision is supported by the both our prece-
dent and the considered reasoning advanced by our sis-
ter circuits. We recognize that clarity in this area has
proven an elusive goal, given the complexity created by
overlapping administrative decisions, judicial opinions
and Congressional actions. We acknowledge that our
own reasoning on this issue has evolved over time, in
fits and starts, and has not lent itself to a bright-line

'* Our long-standing endorsement of Francis precludes us
from considering the route taken by the Ninth Circuit in Abebe.
See, e.g., Chuang v. U.S. Att'y Gen., 382 F.3d 1299, 1304 (11th Cir.
2004) (per curiam); Farquharson, 246 F.3d at 1324-25; Yeung v.
INS, 76 F.3d 337, 341 (11th Cir. 1995); see also Smith v. GT'E
Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001) (discussing our prior
panel precedent rule).

20a

rule. That, in part, is why we have labored to trace the
history of the law in this area, with all its attendant
twists and turns. Our study is directed at discerning
the trajectory of the law. In so doing, we must guard
against the temptation to cherry-pick those portions
along the continuum that we might find appealing or
convenient and remind ourselves that we are bound by
the canons of deference and judicial restraint to respect
the law’s contemporary terminus.

In our view, we parted ways with the Second Cir-
cuit in Rodriguez-Padron. See 13 F.3d at 1460. In that
case, we rejected any additional extension of the Fran-
cis rule—itself a judicially created extension on equal
protection grounds. We reiterated our aversion to
“stretch[ing] [§ 212(c)] beyond its language” again in
Farquharson, and observed that “further judicial re-
drafting would serve only to pull the statute further
from its moorings in the legislative will.” 246 F.3d at
1325 (quotation marks and citation omitted). Although
we consistently signaled our view that any additional
extension of § 212(c) beyond Francis is “not constitu-
tionally required,” we stress that we have in no way
abandoned our adoption of the equal protection ration-
ale of Francis itself. Jd. Indeed, we have affirmed our
commitment to the Francis rule on several occasions.
See, e.g., Chuang, 382 F.3d at 1304; Farquharson, 246
F.3d at 1324-25; Yeung, 76 F.3d at 340.

We read Francis as extending equal protection to
two classes of similarly situated deportable aliens—one
class in which an alien is convicted of a deportable of-
fense and is placed in deportation proceedings and an-
other class in which an alien is convicted of a deportable
offense, travels abroad, returns to the United States,
and then is placed in deportation proceedings. The Sec-
ond Circuit’s offense-based approach to the statutory

24a

counterpart test, however, departs from Francis in
several respects. Many of our sister circuits have con-
sidered this issue quite closely and we find much to
admire in their logic.

The Seventh Circuit’s observation that “not every
act that renders someone deportable makes him ex-
cludable, and vice versa” largely captures the thrust of
the first counter-argument to Blake’s rationale.
Zamora-Mallari v. Mukasey, 514 F.3d 679, 683 (7th
Cir. 2008). Simply put, a deportable alien usually is not
similarly situated to an excludable alien. This is be-
cause Congress delineated different grounds for depor-
tation and exclusion. If, however, an alien’s ground for
deportation has a statutory counterpart in a ground of
exclusion, then the two classes (deportable and exclud-
able aliens) are similarly situated and any distinction
between them would be arbitrary and violate equal
protection. This point is succinctly captured by the
Ninth Circuit in the following passage”:

Generally, when courts have found an equal
protection violation, the excludability and de-
portation provisions have been substantially
identical. That way, the only distinction be-
tween the two classes of persons the statute
created was that one class of individuals had
traveled abroad and returned, and the other
had not. It is this arbitrary distinction that vio-
lates equal protection. In the instant case, the

' We recognize that the Ninth Circuit has departed from its
holding in Komarenko. See Abebe v. Mukasey, 554 F.3d 1203 (9th
Cir. 2009). Komarenko’s reasoning, however, remains persuasive
for those circuits who continue to follow the BIA’s rationale in In
re Blake.

25a

provisions are entirely dissimilar, and the dis-
tinction between the two classes is not arbi-
trary or unreasonable. For this reason, the
linchpin of the equal protection analysis in this
context is that the two provisions be substan-
tially identical.

Komarenko v. INS, 35 F.3d 432, 435 (9th Cir. 1994)
(quotation marks and citation omitted), abrogated by
Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009).

Having established the statutory counterpart test
as the “linchpin” of the equal protection analysis in the
area, we next consider the merits of the categorical ap-
proach. We find the Third Circuit’s reasoning particu-
larly instructive. In Caroleo, 476 F.3d at 160-61, an
alien was found deportable for his conviction, among
other things, of an aggravated-felony crime of vio-
lence—attempted murder. The alien sought a § 212(c)
waiver and argued that attempted murder is a crime
involving moral turpitude, which is a ground of inad-
missibility under § 212(a). See id. at 164. The court re-
jected the argument and drew a distinction between
§ 237 of the INA, which lists the grounds upon which
the Attorney General may order an alien deported, and
the statutory counterpart test under § 212(c). See id.
“It is in this context [§ 237] that courts look to an alien’s
underlying criminal conviction to determine whether
if falls within one of § 237’s statutory grounds for re-
moval.” Id. The court explained the secondary analysis
under § 212(c) as follows:

The statutory counterpart requirement under
§ 212(c), on the other hand, presents an entirely
different question. In an application for
§ 212(c) relief—i.e. a discretionary waiver of
removal, the alien’s removability has already

26a

been established—i.e., it has already been de-
termined that the underlying crime for which
he has been convicted falls within one of INA
§ 237’s grounds for removal. The relevant
statutory counterpart inguiry then looks—not
to the underlying criminal conviction—but
rather to the statutory ground for removal con-
tained in INA § 237 and whether it has a coun-
terpoint in the statutory ground for exclusion
provisions of INA § 212(a). Under this cate-
gorical analysis, we compare the removal and
exclusion provisions of the INA to determine
whether they are substantially equivalent.

Id. (quotation marks omitted). The court concluded
that “the underlying crime for which [the petitioner]
was convicted plays no role in this inquiry. It is there-
fore irrelevant that [his] conviction ... could have sub-
jected him to removal as an alien convicted of a crime of
moral turpitude under INA § 237(a)(2)(A)(i).” Jd. at
168 (emphasis added). Comparing the underlying
criminal offense—instead of the statutory ground of
deportation—with the ground of inadmissibility haz-
ards the congruity between an alien in deportation pro-
ceedings and an alien in exclusion proceedings. This is
so because the underlying offense could be among a
wide array of inadmissible offenses, or not. With no
congruity established, the aliens in question are not
similarly situated, and equal protection is not impli-
cated.

We also are swayed by the Seventh Circuit’s ob-
servation that “if courts were to look beyond the
charged grounds of deportation to the underlying
criminal offense to determine whether the criminal of-
fense could have been treated as a crime of moral tur-
pitude, that would greatly expand the role Congress

27a

assigned the judiciary in immigration cases.” Zamora-
Mallan, 514 F.3d at 692 (referencing Komarenko).
This point is underscored in the following passage from
Abebe:

Congress has vested the executive branch
with discretion in whether, when, and how to
charge an alien with removal. How it exercises
that discretion will have a serious impact on the
life of a removable alien, whether it means
forcible removal from the country or the avail-
ability of section 212(c) relief. To hold that the
exercise of that discretion is unconstitutional
where it is not exercised in the most advanta-
geous way possible for a given alien under the
circumstances would open the door to a torrent
of claims. An alien is no more entitled to sec-
tion 212(c) relief when charged with a ground of
removal that has no statutory counterpart un-
der the INA’s inadmissibility provisions than a
defendant is entitled to a sentencing range con-
sistent with the least serious crime with which
he could have been charged.

Abebe, 554 F.3d at 1212 (Clifton, J., concurring).

Finally, we reiterate our aversion to the judicial
extension of a statute absent sufficient constitutional
justification. Extending it once does not empower a
court to extend it ad infinitum, without any foundation
in the statute or case law. When a rule, born of a series
of ad hoc judicial extensions to a statute, no longer
bears any passing resemblance to its parent legislation,
that rule is a creature of judicial legislation. We decline
to breathe further life into such a construct and hew to
the maxim that courts are charged with adjudication,
not legislation.

28a

De la Rosa was found deportable based upon his
conviction of the aggravated felony of sexual abuse of a
minor. Employing the categorical approach to the
statutory counterpart test, we look to whether the
grounds for his deportation have a statutory counter-
part to a crime involving moral turpitude under INA
§ 212(a). The BIA has determined that sexual abuse of
a minor does not have a statutory counterpart in the
crime of moral turpitude provision in § 212(a). See In re
Blake, 23 I. & N. Dee. at 729. Affording due deference
to the BIA’s interpretation of the INA, we conclude
that De la Rosa’s implicit equal protection argument
fails.

II. CONCLUSION

De la Rosa petitions for review of the BIA’s deci-
sion affirming the IJ’s determination that he was statu-
torily ineligible for a waiver of his deportation charge.
Applying the categorical approach to the statutory
counterpart test, we conclude that De la Rosa’s convic-
tion of the aggravated felony of sexual abuse of a minor
does not have a statutory counterpart in the grounds of
inadmissibility in § 212(a). Accordingly, he is ineligible
for § 212(c) relief.

AFFIRMED.

29a
APPENDIX B

U.S. Department of Justice
Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A42 086 274—Orlando, FLDate:[STAMP: JUN 10 2008]
In re: JOSE ERASMO DE LA ROSA a.k.a. Jose Delarosa

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Wilfred Calero,
Esquire

ON BEHALF OF DHS: Yon Alberdi
Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C.
§ 1227(a)(2)(A (iii) Convicted of ag-
gravated felony

Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C.
§ 1227(a)(2)(E)(i) Convicted of crime
of domestic violence, stalking, or child
abuse, neglect, or abandonment

APPLICATION: Section 212(c) waiver of inadmiss-
ability

ORDER:

PER CURIAM. The respondent, a native and citi-
zen of the Dominican Republic, conceded that he is re-

30a

movable from the United States under section
237(a)(2)(A (iii) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted
of an aggravated felony within the meaning of section
101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A), spe-
cifically, for sexual abuse of a minor. The factual basis
for this charge was the respondent’s 1995 Florida con-
viction for the offense of lewd act upon a child (child
under 16 years old) in violation of section 800.04(8) of
the FLORIDA STATUTES ANNOTATED. The respondent
appeals from an Immigration Judge’s March 16, 2007
decision. In that decision the Immigration Judge con-
cluded, inter alia, that the respondent was statutorily
ineligible for a waiver of inadmissibility under former
section 212(c) of the Act, 8 U.S.C. § 1182(c) (repealed
1996). The appeal is dismissed.

This Board, in 2005, issued a precedent decision
holding that aliens removable on the basis of convic-
tions for sexual abuse of a minor are not eligible for sec-
tion 212(c) relief because the sexual abuse of a minor
aggravated felony category has no statutory counter-
part in the grounds of inadmissibility under section
212(a) of the Act, 8 U.S.C. § 1182(a). Matter of Blake,
23 I&N Dec. 722 (BIA 2005). Because the respondent
is removable as an alien convicted of sexual abuse of a
minor, Matter of Blake precludes him from obtaining a
section 212(c) waiver, without regard to discretionary
considerations. The Immigration Judge determined, in
accordance with the rationale set forth in the Board’s
decision in Matter of Blake, supra, that section 212(c)
relief was unavailable to the respondent. See also 8
C.F.R. § 1212.3(f)(5). We find no reversible error in
this determination. The reasoning was rejected by the
Second Circuit in Blake v. Carbone, 489 F.3d 88 (2d Cir.
2007), but has been accepted by three other circuits.

sla

Ramora-Mallari [sic] v. Mukasey, 514 F.3d 679 (7th
Cir. 2008); Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007);
Brieva-Perez v. Gonzales, 23 I&N Dec. 766 (BIA 2005),
aff'd, 482 F.3d 356 (5th Cir. 2007).

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1251%3A1. Public record. Not legal advice.