Opposition Brief — Abebe v. Holder

— . ~

9-600

Jn the Supreme Court of the Anited States

Y EWHALASHET ABEBE, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

KLENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DONALD FE. KEENER

SAUL GREENSTEIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdo).gov

(202) 514-2217

QUESTION PRESENTED

Whether the denial of relief from removal under for

mer Section 212(¢) of the Immigration and Nationality

Act (INA), 8 U.S.C. 1182(¢) (1994) (repealed 1996), vio

lates the equal protection component of the Due Process

Clause, when an alien who is removable because he com

mitted a specific aggravated felony is not being treated

differently from other aliens who are similarly remov

able on grounds that have no statutory counterpart in

the INA’s grounds for inadmissibility

TABLE OF CONTENTS

Opinions helow

Jurisdiction .. .

Statement

Argument

Conclusion

TABI

Agquilar-Ramo

2010)

Alvarez v. Mukasey

20038)

Avilez-Granados '

2007 )

RBaldera ln re , 2U [

Birkett v. Holder,

Blake \

2007 )

Blake. l)

remanaea,

Brive va Ps YE 2 I) re,

petition for revie'

2007)

(Clarhoriu F

oo | W

1X9 |

re

C'arolea v. G

De la Pei Sd V.

(llth Cir

CLL

LTnate

N » OY 54

aw ru

POLO

led

Holder

ODEN

v. Holder, §

2009). pet

JA OF AUTHORITIES

94 I.

$d 701 (9th Cir

,

N. Dec. 722

(B.1.A. 2005),

ition for cert.

Nov. 13, 2009)

denied, No. O9

pendlny,

Cert 265

282 Fed. Appx. 718 (10th Cir.

(ronzals 1s] F.3d 869 (Sth Cir

& N. Dee. 389 (BT A. 199]

129 S. Ct. 20438 (2009) . .

489 FF 3d 8&8 (2d Cir

3d 88 (2d Cir. 2007) 4,11.

22 1&N. Dec. 766(B LA. 2005

W denied, 48? F.3d 356 (Sth Ci

176 | 1158 (3d Cir. 200%

d State: Att'y Gi y TES

Cases—Continued:

Page

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006 . 19

Fiallo v. Bell, 430 U.S. 787 (1977) . ae 13, 15

Francis v. INS, 532 F.2d 268 (2d Cir. 1976) .. ee 2 a

Gonzalez-Mesias v. Holder, 129 8. Ct. 2042 (2009) . 10, 18

Granados, In re, 161. & N. Dee. 726 (B.1.A. 1979) i.

INS v. St. Cyr, 533 U.S. 289 (2001) ......... Z, 3, 19

Kim v. Gonzales, 468 F.3d 58 (1st Cir. 2006 10)

Kleandienst v. Mandel, 408 U.S. 753 (1992 13

Komarenko v. INS, 35 F.3d 432 (9th Cir

So) re Sy ee ee ee 1,14, 15, 16

Koussan v. Holder, 556 F.3d 403 (6th Cir. 2009) 10)

lL, Inve, 11. & N. Dee. 1 (B.I.A. 1940) |

LaGuerre v. Reno, 164 F.3d 1035 (7th Cir 1998),

cert. denied, 528 U.S. 1158 (2000)

Le al-Rodrigue > v. INS, 990 F.2d 939 (7th Cj

19933) 14, 16

Vohna-De La Villa v. Holder, cert. denied. No. 09

640 (Mar. 22, 2010)

Moreno-Escobosa, In re, 25 1. & N. Dec. 114 (B.A

Z009) l |

Oceanic Steam Navigation Co. v. Stranahan.

214 U.S. 320 (1909

Ramirez-Cana Vv ey, 517 | 1904 (6t

2008) -

Requena Rodri Pasqua 190 F.8d 299

Cases—Continued Page

Tapia Acuna v. INS, 640 F.2d 223 (9th Cir. 1981 7

United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166

PRIS, CO ae Pir ae a ee eer tn ld

Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007 lO

Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007

Wadud, In re, 19 1. & N. Dee. 182 (B.1L.A. 1984)

Zamora-Mallan v. Mukasey, 514 b.38d 679 (7th Cu

Z008 bas Cy ee i LQ, |

Constitution, statutes and regulation

LIS. Const. Amend. V (Due Process Clause 1?

Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, § 440(d

110 Stat. 1277 .. Ife A ;

lllegal Immigration Reform and Immigrant Resp

sibility Act of 1996, Pub. L. No. 104-208, Div. (

110 Stat. 3009-546

S$ 303-306. 110 Stat. 3009-585

304(b). 110 Stat. 8009-597

[Immigration and Nationality Act, & U.S. 0

CY

8 ULS.C. 1101(a 43). A

8 US.C. 1182 ;

§ U.S.C. 1182(a) (§ 212(a 16, 17

S$ US.C. 118&2(¢) (1994) (§ 212¢ pau

S | os 122 6 14

Jn the Supreme Court of the Cinited States

No. 09-600

YEWHALASHET ABEBE, PETITIO!

ERIC H. HOLDER, JR... ATTORNEY GENERA

IN PETITION FOR A WRIT OF CE RTIORAR

/ ) } Ji A / / } LS] y } vy a / ¢ >} j jj

OR THE NINTH CIRCI

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The en bane decision of the court of appr als (Pet

\pp. 1-36), as amended, is reported at 554 F.8d 1208

The prior, now vacated, panel decision of the court of

appeals (Pet. App. 3 8%) is reported at 4938 F.3d 1092

\ contemporaneous, also vacated, panel deeision re

‘

~~ Ee

‘ ‘

manding the case to the Board of Immigration Appeal

for reconsideration of petitioner's application for wit!

holding of removal (Pet \pp (Y-80) is not published nu

the Federal Reporter but is reprinted in 241) Fed. App»

198. Lhe order of the court of appeals denying a petitior

for rehearing (Pet. App. 92-113), is reported at 577 F.3d

1113. The orders of the Board of Immigration Appea

(Pet. App. 81-84) and the immigration judge (Pet. App

S-9 ire unreporte

—

JURISDICTION

The judgment o1 the court of appeals was entered on

January 5, 2009. A petition for rehearing was denied on

August 18, 2009 (Pet. App. 92). The petition for a writ of

certiorari was filed on November 16, 2009. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

l. Former Section 212(c) of the Immigration and

Nationality Act (INA), 8 U.S.C, 1182(¢c) (1994) (repealed

1996), authorized some permanent resident aliens domi-

ciled in the United States for seven consecutive years to

apply for discretionary relief from exclusion. By its

terms, Section 212(c) applied only to certain aliens in

exclusion proceedings (7.e., proceedings in which aliens

were seeking to “he admitted” to the United States after

“temporarily proceed{ing| abroad voluntarily”). In 1976

however, the Second Cireuit determined that making

that discretionary relief available to aliens who had de

parted the United States while denying it to aliens who

remained in the United States violated equal protection

Francis v. INS, 582 F.2d 268, 273. The Board of Immi

vration Appeals (Board) adopted that rationale on ana

tionwide basis in /n re Silva, 16 T. & N. Dee. 26 (B.1.A

1976), so that Section 212(¢) was generally construed as

being available in both deportation and exclusion pro

ceedings. See lNS v. St. Cyr, 533 U.S. 289, 295 (2001).

In applying the principle of treating those in depor

tation proceedings like those in exelusion proceeding

the Board has long maintained that an alien in deporta

tion proceedings can obtain Section 212(c) reliet only if

the ground for his deportation has a comparable ground

among the statutory grounds of exclusion. See, e.g., /

re Wadud,19 1. & N. Dee. 182 (B.1.A. 1984): J re Gra

nados, 16 1. & N. Dee. 726 (B.I.A. 1979). That practice

is Known as the “comparable ground” or “statutory coun

terpart” test, and it has been codified by regulation at

C.F.R. 1212.3(f)(5).’

[In 1996, in the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110

Stat. 1277, Congress amended Section 212(c) to make

ineligible for discretionary relief aliens previously con

\ — of certain offenses, including aggravated felonies

Lui in 1996, in the [Illegal Immigration Reform and

dt igrant Responsibility Act of 1996 (IIRIRA), Pub. L.

No. 104-208, Div. C, § 304(b), 110 Stat. 3009-597, Con

gress repealed Section 212(c) in its entirety. ILRIRA

also did away with the distinction between “deportation”

and “exclusion” proceedings, designating them both as

“removal” proceedings. See §§ 308-306, 110 Stat. 3009

In 7NS v. St. Cyr, supra, this Court held, based on

principles of non-retroactivity, that II[RIRA’s repeal of

Section 212(c) should not be construed to apply to an

alien convicted of an aggravated felony on the basis of a

plea agreement that the alien made at a time when he

night have relied on his possible eligibility for Section

212(c) relief in spite of the resulting conviction. 533 U.S

t 314-326. Although some aliens necessarily benefitted

was not

from the conelusion that Section Z212(¢)'s repea

retroactively applicable, the Court did not suggest that

liens would not still be subject to any pre-existing limi

| , . { int _ I a <

A ')) ler chion21Z \ i

j t | . | i dep t l¢ t Tt

or } al \ rref, it f ] wor } the 7

‘ iT) ‘ 4

tations on their eligibility for relief under Section 212(¢),

including the “statutory counterpart” test.

As relevant to the circumstances of this case, the

operation of that test was further clarified by the Board

of Immigration Appeals in /n re Blake, 23.1. & N. Dee.

722 (2005), remanded, 489 F.3d && (2d Cir. 2007), and J»

re Brieva- Perez, 23 1. & N. Dec. 766 (2005), petition for

review denied, 482 I°.3d 356 (Sth Cir, 2007). Those cases

held that a statutory ground of exclusion or inadmissibil

ity is a “comparable ground[]|” to the charged ground of

deportation only if the two grounds use similar language

to describe “substantially equivalent categories of of-

fenses.” /d. at 771; In re Blak , 231. & N. Dec. at 7

In /n re blake, the Board held that the “crime involving

moral turpitude” ground of inadmissibility was not com-

parable to the ground of removal of having an aggra

vated felony conviction for sexual abuse of a minor. /d

at 729. In Jn re Brieva-Perez, the Board similarly held

that the “crime involving moral turpitude” ground of

inadmissibility was not comparable to the ground of re

moval of having an aggravated felony conviction for a

crime of violence. 23 1. & N. Dec. at 773. Wel! before

the Board published those precedential decisions, how

ever, the analytical underpinnings of its interpretation

had been confirmed by, among others, the Ninth ¢

cuit’s decision in Komarenko v. INS, 35 F.3d 482 (1994)

In 2007, the Second Circuit disagreed with Aomar

enko and the “several other circuits” that had followed

it. Blake v. Carbone, 489 F.3d 88, 103-104. The Second

Circuit recognized that the statutory-counterpart test

codified in 8 C.F.R. 1212.8(f)(5) did “nothing more than

crystallize the agency's preexisting body of law and

therefore leould not have an impermissible retroactive

effect’: but the Second Circuit held that, whe Anal\ 2e(]

on the basis of a “particular criminal offense[],” the

ground of inadmissibility for a “crime involving moral

turpitude” was sufficiently comparable to an aggravated

felony of sexual abuse of a minor to permit relief under

former Section 212(c). Blake, 489 F.3d at 98-99, 101,

105.

2. Petitioner is a native and citizen of Ethiopia who

was accorded lawful permanent resident status in 1984.

Pet. App. 2. In 1992, petitioner pleaded guilty to two

counts of lewd and lascivious conduct upon a child under

the age of 14, in violation of California law. /d. at 2, 82,

86-87. Based on his conviction, petitioner was placed in

removal proceedings in 2005, and an immigration judge

ruled that petitioner was subject to removal under

8 U.S.C. 1227(a)(2)(A)Cili) as an alien who has been con-

vieted of an aggravated felony (specifically, “sexual

abuse of a minor,” 8 U.S.C. 1101(a)(43)(A)). Pet. App.

86. The immigration judge also denied petitioner’s ap

plication for relief under former Section 212(c), and or

dered him removed to Ethiopia. /d. at 82, 86.

On June 10, 2008, the Board dismissed petitioner's

appeal. It agreed with the immigration judge that, pur

suant to the Board’s reasoning in /n re Blake, petitioner

was statutorily ineligible for relief under former Section

212(c), because the charge of deportability on the basis

of a conviction for sexual abuse of a minor has no statu-

tory counterpart among the grounds of inadmissibility.

Pet. App. 81-82. The Board expressly observed that

“former [Slection 212(c) * * * did not pardon or waive

crimes, per se, it waived grounds of inadmissibility,

some of which arose from crimes.” /d. at 82-83; accord

In re Balderas, 20 1. & N. Dee. 389, 391 (B.I.A. 1991)

(explaining that “a grant of |Slection 212(c) relief

‘waives’ the finding of excludability or deportability

rather than the basis of the excludability itself |7.e., the

1°

criminal offense]”). Thus, “it is not enough that the

alien's particular offense could have constituted a valid

factual predicate for a charge of inadmissibility.” Pet

\pp. 838. Rather, “the applicant for [Sjection 212(¢) re

lief must demonstrate with respect to the ground ol

deportability at issue in his case that Congress has em

ployed similar language to describe substantially equiva

lent categories of offenses in the grounds of inadmissibil

ity.” Ibid

. Petitioner sought judicial review of the Board’

lecision, and a panel of the Ninth Circuit dented his pe

tition with respect to his application for relief under for

mer section Z12(¢ Pet App 3-7/8. Lhe court accepted

the Board’s decision in /n re Blake, concluding that it

tatutoryv-counterpart test is consistent with the statute

th &§ C.F.R. 1212.31 nd with “past administrative

nad jud l interpret t ’ it tine tute Pot \pp 4

Hh. 56-5, 62: that the test aor not result ir equ

protect nN \ | nN } iL | Of na " t aoe ! f

pre it an retroactivity problem” becat cr

he L9Y7Os a! Lit uld

i had I t I f | et

| a L hb

hi irt o } Dal

nJanual » ZOOM, ce ed i! rt and ! eC

evil ! pet nm i eV Bour de

Pet. App. 1-36. Alth ht rit { the «

inc court reached thi result as t] rigit pane

if isoning differed fro " e pane d fro

Lila dvanced b ne povernit he court reexam

ned previous Case quiring that Section 212(¢) eligibil

Ne | ended to certaln ’ deport ie alte

if inding S mn Ziz re ren )

]

7

seeking to “be admitted.” In particular, the court “re-

consider|ed]” circuit precedent that had “reasoned that

there is no rational basis for granting additional immi

gration relief to aliens who temporarily leave the United

States and try to reenter (i.e., aliens facing inadmissibil

ity), and not to aliens who remain in the United States

(i.e., aliens facing deportation),” 2d. at 5 (citing T'ama-

Acuna v. INS, 640 F.2d 223, 225 (9th Cir. 1981)), us

well as the Second Circuit’s similar decision in Francis,

supra. Finding that the “plain language” of former Sec-

tion 212(¢c) “gives the Attorney General discretion to

grant lawful permanent residents relief only from inad-

messibility—not deportation,” Pet. App. 4, the court

concluded that it was “not convinced that F’rancis and

Tapia-Acuna accorded sufficient deference to this com-

plex legislative scheme.” /d. at 5.

Applying rational-basis review to Congress’s appar-

ent decision to accord excludable but not deportable

aliens the right to seek Section 212(c) relief, the court of

appeals observed that “Congress could have limited

[Slection 212(e) relief to aliens seeking to enter the

country from abroad in order to ‘create|| an incentive

for deportable aliens to leave the country.’” Pet. App. 6

(quoting Requena-Rodriguez v. Pasquarell, 190 F.3d

299, 309 (5th Cir. 1999), and LaGuerre v. Reno, 164 F.3d

1035, 1041 (7th Cir. 1998), cert. denied, 528% U.S. 1158

(2000)). The court further explained:

A deportable alien who wishes to obtain [Slection

212(c) relief will know that he can’t obtain such relief

so long as he remains in the United States; if he de-

parts 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 arresting and deporting

8

these aliens[,] * * * [which] is certainly a legiti-

mate congressional objective.

Id. at 6-7 (internal citations omitted). The court ex-

plained that, although the government might later

choose to admit an alien who had thus departed, “[t]he

rationality of the statute lies in giving that discretion, on

a case by case basis, to an agency that can assess the

likelihood of the alien’s success and the cost of his re-

moval.” Jd. at 7. For those aliens who apply for and do

not receive Section 212(c) relief, “it makes perfect sense

to want them to be outside our borders when they get

the bad news.” /d. at 8. Accordingly, the court “over-

rule[d] Tapza-Acuna’s holding that there’s no rational

basis for providing [S]ection 212(c) relief from inadmis-

sibility, but not deportation,” and it held that the Board

“didn’t violate petitioner’s right to equal protection by

finding him ineligible for [SJection 212(c) relief from de-

portation.” /d. at 9. Although petitioner had sought

reconsideration of whether the court’s earlier decision

in Komarenko had appropriately limited Tapra-Acuna

to instances in which the ground for an alien’s deporta-

tion has a statutory counterpart in a ground for inadmis-

sibility, the court concluded that it was unnecessary to

decide Komarenko’s continuing constitutional validity

because “its only purpose was to fill a gap created by

Tapia-Acuna.” Ibid.

Finally, the court of appeals left intact the Board’s

statutory-counterpart rule by expressly acknowledging

the continuing legitimacy of 8 C.F.R. 1212.3(f)(5). Pet.

App. &-9. It stated: “nothing we say today casts any

doubt on the regulation,” 7d. at 9, which would thus al-

low an otherwise-qualified deportable permanent resi-

dent alien in the Ninth Cireuit to apply for Section

212(c) relief when there is a comparable ground of inad-

missibility.

Judge Clifton concurred, in an opinion joined by

Judges Silverman and Gould. Pet. App. 11-23. They

agreed with the original panel decision and its reliance

on Komarenko, because they coneluded that “aliens who

could have been, but were not, charged with removal on

grounds equivalent to a ground for inadmissibility are

not similarly situated to aliens who were actually so

charged.” Jd. at 12. The coneurring judges reasoned

that “Lajn alien is no more entitled to [Slection 212(c)

relief when charged with a ground of removal that has

no statutory counterpart under the INA’s inadmissibil-

ity provisions than a defendant is entitled to a sentenc-

ing range consistent with the least serious crime with

which he could have been charged.” Jd. at 20-21. Be-

cause “two aliens who have been charged with removal

on different statutory grounds are not similarly situ-

ated,” the concurring judges concluded that petitioner

had suffered no equal protection violation. /d. at 19-20

A dissent by Judge Thomas, joined by Judge Preger-

son, concluded that the majority’s application of former

Section 212(c) to aliens who are inadmissible but not to

those who are deportable lacked a rational basis and

thus violated equal protection. Pet. App. 23-24. The dis-

senters would, in their words, have “overruie|d] Aoma-

renko (applying a comparable grounds test), and fol-

low[ed] the lead of the Second Circuit’s well-articulated

opinion in Blake [v. Carbone] (applying an offense-spe-

cifie test).” Jd. at 33 (citations omitted).

5. Petitioner sought rehearing by the full court. On

August 18, 2009, the court. denied that request. Pet.

App. 92. Judge Berzon, joined by six other judges, dis-

sented. 7d. at 92-113.

10

ARGUMENT

The decision of the court of appeals correctly left in

place the Board’s statutory-counterpart test, codified in

a regulation that sets forth criteria for granting relief

under former Section 212(c) of the INA. The issue pre-

sented concerns a statutory section that was repealed

more than 13 years ago, and that therefore is of greatly

diminished importance. Moreover, every court of ap-

peals to have addressed the question (except the Second

Circuit) would deny petitioner relief. This court has

recently denied certiorari in two cases presenting a sim-

ilar question. See Birkett v. Holder, 129 S. Ct. 20438

(2009) (No. 08-6816); Gonzalez-Mesias v. Holder, 129

S. Ct. 2042 (2009) (No. 08-605). Further review is simi-

larly unwarranted in this case. Petitioner repeats much

of the argument from the pending petition for a writ of

certiorari in De la Rosa v. Holder, No. 09-594 (filed Nov.

13, 2009). Petitioner asks (Pet. 18, 21) for his petition to

be held for the disposition of that ease, which he says

(Pet. 21) “squarely address[es] the underlying issue” he

wants this Court to consider. Just as certiorari should

be denied in De la Rosa, certiorari should be denied in

this case.

1. As petitioner acknowledges (Pet. 19), the First,

Third, Fifth, Sixth, Seventh, Eighth, and Eleventh Cir-

cuits have concluded in published opinions that the

Board’s application of the statutory-counterpart test

constitutes a permissible interpretation and implemen-

tation of former Section 212(c) and does not violate

equal protection. See, e.g., Azm v. Gonzales, 468 F.3d

58, 62-63 (1st Cir. 2006); Caroleo v. Gonzales, 476 F.3d

158, 162-163 (38d Cir. 2007); Vo v. Gonzales, 482 F.3d 363,

371-372 (5th Cir. 2007); Koussan v. Holder, 556 F.3d

403, 412-414 (6th Cir. 2009); Zarmora-Mallari v. Mu-

1]

kasey, 514 F.3d 679, 691-692 (7th Cir. 2008); Vue v. Gon-

zales, 496 F.3d 858, 860-862 (8th Cir. 2007); De la Rosa

v. United States Att’y Gen., 579 F.3d 1327, 1835 (11th

Cir. 2009), petition for cert. pending, No. 09-594 (filed

Nov. 13, 2009).°

Although the Ninth Circuit’s legal analysis in this

case Was different, petitioner acknowledges (Pet. 20)

that “there is no practical difference between the en

banc |cJourt’s holding” and the holding of these other

circuits, which have approved the Board’s practice fol-

lowing I” re Blake, 23 1. & N. Dec. 722 (2005), because

both approaches “leave in place the implementing regu-

lations and their interpretation by the |[Board],” Pet. 20.

The court of appeals expressly stated that its decision

did not “cast|| any doubt on the regulation” that codified

the Board’s statutory-counterpart rule. Pet. App. 9.

And subsequent decisions from the Ninth Circuit and

the Board bear out that result. See Aguilar-Ramos v.

Holder, 594 F.3d 701, 706 (9th Cir. 2010) (applying

8 C.F.R. 1212.3(f)(5) and finding alien ineligible for Sec-

tion 212(c) relief because the grounds for his removal

did not have statutory counterparts among the grounds

of inadmissibility); 7x re Moreno-E'scobosa, 25 1. & N.

Dee. 114, 117 (B.1L.A. 2009) (“[T]Jhe Ninth Circuit’s deci-

sion in Abebe v. Mukasey can be fairly read as rejecting

the equal protection challenge to the application of the

statutory counterpart rule.”).

The only court of appeals to have reached a different

result is the Second Circuit, in Blake v. Carbone, 489

F.3d 88, 103-104 (2007).

* The Tenth Circuit has applied the statutory-counterpart rule in an

unpublished decision. Alvarez v. Mukasey, 282 Fed. Appx. 718, 723

(2008).

lz

2. Although petitioner concedes (Pet. 21) that “the

Ninth Circuit does not squarely address the underlying

issue,’ he contends (Pet. 21-27) that the statutory-

counterpart rule applied by the Board violates the equal

protection component of the Fifth Amendment’s Due

Process Clause. Petitioner argues (Pet. 22) that the

Board’s decision in In re Blake “creates an irrational

distinction between [lawful permanent residents] who

have traveled abroad and [those] who have not, contrary

to Section 212(c) as it has consistently been interpreted

and contrary to equal protection.” Petitioner thus es-

sentially contends as follows: If he had left the United

States and attempted to return, his conviction for com-

mitting a lewd act upon a child could have subjected him

to removal based on a charge of inadmissibility for hav-

ing committed “a crime involving moral turpitude” un-

der Section 212(a)(2)(A)()(T) of the INA, 8 U.S.C.

1182(a)(2)(A)(i)(1), and that would have made him eligi-

ble for Section 212(c) relief. Petitioner contends that it

is irrational for him to be ineligible for Section 212(c)

relief because he remained within the United States and

thus was subject to removal based on the charge of hav-

ing committed the aggravated felony of sexual abuse of

a minor—a ground that the Board holds is not compara-

ble to the inadmissibility ground of having committed a

crime involving moral turpitude. This argument is with-

out merit.

a. Asan initial matter, petitioner errs in contending

that:

Before 2005, the [Board] consistently held that [a

lawful permanent resident] deportable on the basis

of an aggravated felony conviction for “sexual abuse

of a minor” or a “crime of violence” was eligible for

Section 212(c) relief from removal if the underlying

13

conviction would have been a basis for inadmissibility

(e.g., as a “erime involving moral turpitude” under

[8 U.S.C. 1182(a)(2)(A)G))).

Pet. 21. Petitioner cites no Board precedent holding

that an alien who has been convicted of a crime render-

ing him deportable as an aggravated felon on the

grounds of “sexual abuse of a minor” or a “crime of vio-

lence” is categorically eligible for relief if his particular

crime could have served as a basis for inadmissibility.”

b. As this Court has repeatedly stated: “‘over no

conceivable subject is the legislative power of Congress

more complete than it is over’ the admission of aliens.”

Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic

Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339

(1909)). Thus, whether an immigration provision is con-

stitutional depends only on the existence of a “facially

legitimate and bona fide reason” for its enactment. /d.

at 794 (quoting AKleendienst v. Mandel, 408 U.S. 753, 770

(1992)).

As a general matter, Congress has determined that

the statutory regime that applies to an alien who has

already been admitted to the country is different from

the one that applies to an alien who is seeking admission.

Compare 8 U.S.C. 1182, with 8 U.S.C. 1227. It is thus

unsurprising that the categories of offenses that make

an alien inadmissible are not always the same as those

that may render an alien deportable from the country.

That fundamental legislative choice shows that aliens

* As the government noted in its brief opposing certiorari in De la

Rosa (at 11-12), the only precedential opinions cited by that petitioner

were distinguishable, and Jn re Blake is the only precedential decision

of the Board to have specifically addressed the ground of removai for

sexual abuse of a minor. See 23 1. & N. Dec. at 724-728.

14

who are inadmissible are not situated similarly to aliens

subject to removal on grounds of being deportable, even

though there may be some overlap between the underly-

ing conduct that renders an alien inadmissible and the

conduct that renders an alien deportable. [t is only

when a statutory ground that renders an alien deport-

able under the one regime has a statutory counterpart

that renders an alien inadmissible under the other re-

gime that the two aliens could be said to be similarly

situated for equal protection purposes (and thus warrant

the application of former Section 212(c) to the category

of aliens to whom it did not, by its own terms, apply).

The reasoning employed in Komarenko v. INS, 35

F.3d 482 (9th Cir. 1994), which was followed by the con-

curring opinion in the court of appeals (Pet. App. 11-23)

and has also been endorsed by most of the other courts

of appeals, is persuasive.“ In Komarenko, the Ninth

Circuit rejected a similar equal protection claim in find-

ing that two groups of aliens convicted of different

crimes were not similarly situated for purposes of eligi-

bility for Section 212(c) relief. 7d. at 435. The court

concluded that the “linchpin of the equal protection anal-

ysis in this context is that the two provisions be ‘substan-

tially identical.’” /bid.; see also Leal-Rodriguez v. INS,

990 F.2d 939, 952 (7th Cir. 1993). Komarenko contended

that the court was required to “focus on the facts of his

individual case and conclude that because he could have

been excluded under the moral turpitude provision, he

has been denied equal protection.” Komarenko, 35 F.3d

at 485. The court, however, refused “to speculate

In light of its decision to overrule the Ninth Circuit’s decision in

Tapia-Acuna, the en bane majority opinion in the court of appeals

found it unnecessary to reconsider Aomarenko, as petitioner had in-

vited. Pet. App. Y.

1

Whether the I.N.S. would have applied this broad ex-

cludability provision to an alien in Komarenko’s posi-

tion,” because engaging in such speculation “would ex

tend discretionary review to every ground for deporta-

tion that could constitute ‘the essential elements of a

crime involving moral turpitude.’” /btd. Such an ap-

proach, the Ninth Circuit explained in AKomarenko,

would be tantamount to “judicial legislating,” would

“vastly overstep” the courts’ “limited scope of judicial

inquiry into immigration legislation,” and “would inter-

fere with the broad enforcement powers Congress has

delegated to the Attorney General.” /hid. (quoting

Fiallo, 4380 U.S. at 792). Accordingly, the court “de-

cline|d]| to adopt a factual approach to * * * equal pro-

tection analysis in the context of the deportation and

excludability provisions of the INA,” and it “conclude[d]

that Komarenko was not denied his constitutional right

to equal protection of the law.” /bid.

Thus, under the rational-basis standard of review,

Congress may draw lines on the basis of general catego-

ries without regard to the circumstances of a particular

individual. See, e.g., United States R.R. Ret. Bd. v.

Fritz, 449 U.S. 166, 179 (1980). It is only when the stat

utory ground for a deportable alien’s removal from the

country has a statutory counterpart in the grounds for

inadmissibility that a deportable alien is arguably simi-

larly situated to inadmissible aliens. See Komarenko, 35

F.3d at 435. As the Seventh Circuit has explained:

[CJertain deportable aliens may receive exclusion-

type relief as if they were subject to exclusion rather

than deportation. But that fiction requires that the

aliens be excludable for the same reasons that render

them deportable—a situation not necessarily true for

all aliens facing deportations. Aceordingly, |S lection

1b

212(¢c) relief was not extended to aliens whose de-

portability was based on a ground for which a compa-

rable ground of exclusion did not exist.

Leal-Rodriguez, 990 F.2d at 949 (emphasis added). The

Seventh Circuit therefore held in Leal-Rodriguez that

an alien who was deportable for entering the United

States without inspection was not eligible for Section

212(c) relief because there was no ground of inadmissi-

bility that corresponded to that ground of deportation.

Id. at 948, 950.

In this case, petitioner’s argument similarly fails be-

cause his ground of deportation (for having been con-

victed of the aggravated felony of sexual abuse of a mi-

nor) is not “substantially equivalent” or “substantially

identical” to a ground of inadmissibility under Section

212(a) of the INA. Komarenko, 35 F.3d at 485. As the

Board correctly reasoned in /n re Blake, sexual abuse

of a minor under 8 U.S.C. 1101(a)(43)(A) lacks a stat-

utory counterpart among the grounds of inadmissibil-

ity in Section 212(a). Although sexual abuse of a minor

may constitute “a crime involving moral turpitude” un-

der Section 212(a)\(2)(A)\(i)C) of the INA, 8 U.S.C.

1182(a)(2)(A))(1), the latter category addresses a dis-

tinctly different and much broader category of offenses

than a charge for an aggravated felony of sexual abuse

of aminor. Thus, while the statutory-counterpart test

does not require a perfect match, the ground of inadmis-

sibility must address essentially the same category of

offense on which the removal charge is based.

Under the pertinent regulations and the Board’s de-

cisions, that test is not met merely by showing that some

(or even many) of the aliens whose underlying offenses

are included in a given category could also have their

crimes characterized as ones involving moral turpitude.

iw

See, e.g., Zamora-Mallari, 514 F.3d at 698 (holding that

the aggravated felony of sexual abuse of a minor has no

statutory counterpart in the grounds of inadmissibility);

Avilez-Granados v. Gonzales, 481 F.3d 869, 871-872 (5th

Cir. 2007) (same). That analysis is also firmly supported

by the unanimous opinions of the courts of appeals hold-

ing that a firearms offense (which is a ground of remov-

ability under 8 U.S.C. 1227(a)(2)(C)) has no statutory

counterpart under Section 212(a), even though “many

firearms offenses may also be crimes of moral turpi-

tude.” Jn re Blake, 23 |. & N. Dee. at 728.

Thus, because petitioner is not similarly situated to

an inadmissible alien who has been convicted of a crime

involving moral turpitude, and because he is not being

treated any differently from other aliens who are de-

portable upon grounds that themselves have no corre-

For the same reason, petitioner’s contention (Pet. 26) that the

Board erroneously interpreted 8 C.F.R. 1212.3(f£)(5) so as to “confine”

this Court’s decision in St. Cyr, rather than “implement” it, fails. Peti-

tioner argues that the Board, in/n re Blake, impermissibly interpreted

8 C.F.R. 1212.3(f)(5) inconsistently with its “prior practice of holding

that (a lawful permanent resident alien] deportable for having com-

mitted an aggravated felony was eligible for section 212(c) relief if the

conviction would also fall under a counterpart inadmissibility provi

sion.” Pet. 26 (emphasis omitted). But petitioner’s characterization of

the Board’s prior practice is flawed, because it overlooks the fact. that

the Board has always considered whether the charged statutory ground

of deportability compared with any statutory ground of inadmissibility,

and not whether the alien’s underlying crime could have formed the

basis for a different charge of inadmissibility. See Jn re Blake, 23 1. &

N. Dee. at 728; Pet. App. 59 (initial panel opinion) (“{TJhe BLA has not

recently changed course but rather has maintained a consistent position

for many vears.”). As aresult, petitioner's objections (Pet. 26) to an al

legedly “retroactive application” of 8C.F.R. 1212.38(7)(5) are unfounded.

Ls

sponding ground of inadmissibility, his equal protection

claim is meritless.°

3. Although the Second Circuit has reached a dif-

ferent result, the “underlying issue” that petitioner

‘aises (Pet. 21) is not a question of sufficient importance

to warrant this Court’s review. The Seeond Circuit is an

outlier: eight other circuits, including the Ninth Circuit

below, have approved the Board’s approach in /n re

Blake. And this Court denied certiorari twice last year,

well after the Second Circuit had issued its decision in

Blake v. Carbone, supra. See Birkett, supra; Gonzalez-

Mesias, supra. Moreover, petitioner’s question con-

cerns an alien’s eligibility for a form of discretionary

relief under a statute that was repealed more than 13

Petitioner contends (let. 22) that the relevant comparison should

be between deportable aliens who have left the country and those who

have not, because a deportable alien who left the country could be

treated as if he had been put into proceedings upon reentry such that

relief was available mune pro tune. But, other than Blake v. Carbone,

the authority he offers is Jn re L-, 1 1. & N. Dee. 1 (B.A. 1940), which

addressed “the power to retroactively grant the Attorney General’s

discretion to permit an alien to reapply for admission after being

deported and subsequently reentering the country.” Ramirez-Canales

v. Mukasey, 517 F.3d 904, 910 (6th Cir, 2008), The cases in which the

Board has applied Section 212(c) or its predecessor provisions make

clear that, although “[i]t has long been the administrative practice to

exercise the discretion permitted by the foregoing provisions of law,

nunc pro tunc,” the Board does so only “where complete justice to an

alien dictates such extraordinary action.” Jn re 7T-,6 1. & N. Dee, 410,

413 (B.L.A. 1954). Thus, while “the equitable power to grant orders

nune pro tunc is conceptually broad,” Ramirez-Canales, 517 I.3d at

910, its application is wholly diseretionary and it ts limited to extraordi

nary cases—not every case in which an alien is otherwise eligible for

relief. For the same reasons that petitioner is not similarly situated to

an alien who departed and is seeking to re-enter, complete justice would

not mandate the application of nunc pro tune discretion,

19

years ago and Is only potentially applicable to him on the

theory that he might have relied on being eligible for it

had his removal proceedings been initiated before the

1996 enactments. See /NS v. St. Cyr, 533 U.S. 289, 325

(2001). But the statutory-counterpart test to which peti-

tioner objects is not new—indeed, it long predated the

repeal of Section 212(c) in 1996 (see pp. 2-3, supra;

Blake, 489 I'.3d at 98-99)—and petitioner could have

sasily avoided its effects by departing the country volun-

turily at any point before his removal proceedings were

initiated in 2005. Cf. Fernandez-Vargas v. Gonzales,

548 U.S. 30, 44 (2006) (“It is therefore the alien’s choice

to continue his illegal presence * * * that subjects him

to the new and less generous legal regime, not a past act

that he is helpless to undo up to the moment the Govern

ment finds him out.”).

In contending that his case presents an issue of ex

ceptional importance, petitioner cites a statistic about

10,000 grants of Section 212(¢) relief between 1989 and

1995. Pet. 28 (quoting St. Cyr, 533 U.S. at 296). That

figure is of little relevance here not only because of its

age but also because Section 212(c) was still in effect

between 1989 and 1995. [n recent years, the number of

grants of relief under former Section 212(¢) has been

smaller and declining. It went from 1905 grants in FY

2004 to 858 grants in FY 2009—a 55% decline. See Ex

ecutive Office for Immigration Review, U.S. Dep’t of

Justice, Y 2008 Statistical Year Book Table 15, at R8

(2009), http://www.justice.gov/eoir/stats pub/fyO8s yb. pdf;

Executive Office for Immigration Review, U.S. Dep't of

Justice, FY 2009 Statistical Year Book Table 15, at R38

(2010), http://www .justice.gov/eoir/stats pub/fy0Ys vb. pdf.

Over that same period, the number of applications for

relief under former Section 212(¢) fell even more dra

PAU

matically. In FY 2004, there were 2617 applications; in

IY 2008, there were 1281; and in FY 2009, there were

576. That reflects a 78% decline since FY 2004—and a

55% decline since FY 2008.

Of course, the number of aliens who could be affected

by the outcome of this case is necessarily even smaller,

since an alien would not become eligible for discretion

ary relief under petitioner’s theory unless he or she met,

at a minimum, each of the following criteria: (1) law-

ful-permanent-resident status; (2) a conviction predating

the repeal of Section 212(c) that (3) resulted from a plea

of guilty or no contest (rather than a trial);' and (4) a

removal charge that has no comparable ground of inad

missibility except when considered on the basis of the

facts of the underlying offense. Given the limited nature

of that class, there is no merit to petitioner’s assertion

(Pet. 27) that this case presents an issue of “[e]xcep

tional [alnd [clontinuing [i]mportance.”

Insome circuits, St. Cyr has been applied to allow some aliens who

were convicted after a trial to be eligible for relief under former Section

212(c). The Court most recently denied certiorari on that question in

Ferguson Vv. Holder, cert. denied, No, 09-263 (Mar. 8, 2010), and

Molina-De La Villa v. Holder, cert. denied, No. 09-640 (Mar 22, 2010)

"here is no evident reason why questions of statutory comparability

associated with granting relief under former Section 212(¢) are of any

greater continuing importance than the questions about retroactivits

analy is under former Section 212(¢) that were presented in Ferguson

af qd Moluv a Di / a! \

yA

~

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

MLENA KAGAN

Solicitor General

rONY WES’

Assistant Allorney General

DONALD E. KEBNER

SAUL GREENSTEIN

Allorn: “us

MARCH 2010