Petition for Writ of Certiorari — Gonzalez-Mesias v. Holder (No. 08-605)

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Supreme

p um he gis U.S.

No. 087 08-605 ocr 31 20

OFFICE OF THE CLERK

IN THE

Gnited States Supreme Court

pre

ROBINSON WLADIMIR GONZALEZ-MESIAS,

Petitioner,

o,

MICHAEL B. MUKASEY,

United States Attorney General

Respondent.

On Petition for a Writ of Certtorari to the

United States Court of Appeals for the First Circutt

PETITION FOR A WRIT OF CERTIORARI

Parick D. O’Neill

Jason P. Ramos

E. Joshua Rosenkranz

Counsel of Record

O’NEILL & GILMORE, P.S.C. ORRICK, HERRINGTON

Edif. Citibank Tower & SUTCLIFFE LLP

252 Avenue Ponce de Leon 666 Fifth Avenue

Suite 1701 New York, NY 10103-0001

San Juan, PR 00918-2019 (212) 506-5000 ©

(787) 620-0670

MALAIKA M. EATON

1911 North 44th Street

Seattle, WA 98103

(206) 229-3555

October 31, 2008

Counsel for Petitioner

QUESTION PRESENTED

Petitioner, a lawful permanent resident, was

deported for a crime he committed 23 years ago. He

sought a waiver of deportation under § 212(c) of the

Immigration and Naturalization Act, 8 U.S.C.

§ 1182(c) (repealed 1996). All the courts of appeals

agree that equal protection demands that Petitioner

be eligible for a waiver of deportation if a similarly

situated alien would be eligible for a waiver of

exclusion, had he left the country and returned. If

Petitioner had been convicted of exactly the same

crime under exactly the same circumstances, and

subsequently left the country and returned, he

would have been eligible for a waiver of exclusion.

Should he, therefore, be eligible for a waiver of

deportation, on the ground that it is irrational to

treat him more harshly just because he never left the

country?

PARTIES

All parties to this case are listed in the caption.

i

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

RI iach cas is i cat use re dees 1

STATEMENT OF THE CASE............ccccccoescccscoscsees 2

The Struggles of the Executive and the

Courts to Implement § 212(c) Relief............ 3 '

Section 212(c) Waivers Before 1996 ............ 4

Section 212(c) Waivers After 1996............... 8

The Government Begins Deportation

Proceedings Against Mr. Gonzalez-

I isi in cnet cremate sraeaendited ia 9

Intervening BIA Authority Undermines

the Bid for a Waiver, But Is Overturned... 12

The BIA and First Circuit Affirm .............. 15

REASONS FOR GRANTING THE PETITION ... 16

I. THE CIRCUITS ARE SPLIT OVER

WHETHER THE STATUTORY

COUNTERPART TEST FOR § 212(C)

RELIEF VIOLATES EQUAL

Fe EE ni cernrtnsasacicin cevecaivsenearrianeiaes 16

iV

The Second Circuit Has

Concluded That the Statutory

Counterpart Test for § 212(c)

Relief Violates Equal Protection

The Ninth Circuit Initially

Concluded That the Statutory

Counterpart Test Did Not Violate

Equal Protection, But Has Taken

the Issue Up for Rehearing En

The First, Third, Fifth, Seventh,

and Eighth Circuits Have

Concluded That the Statutory

Counterpart Test for § 212(c)

Relief Does Not Violate Equal

Protection

This Inter-Circuit Conflict Is

Widely Recognized and

Intractable

THE QUESTION PRESENTED

INVOLVES A RECURRING ISSUE OF

SUBSTANTIAL IMPORTANCE

CONCLUSION

APPENDIX

Gonzdlez-Mesias v. Mukasey,

529 F.3d 62 (1st Cir. 2008)

In re Gonzdlez-Mesias,

No. A22 230 921 - San Juan PR

(B.1.A. Aug. 2, 2008)

In re Gonzdlez-Mesias,

No. A 22 230 921

(Imm. Court Sep. 8, 2005)

U.S. Const. amend. V

8 U.S.C. § 1182(c)

pe A Bet of enamel App. 16-17

8 U.S.C. § 1227(a)(2)(A)

Eee f RBs iy & |: eee Perret App. 19

TABLE OF AUTHORITIES

Page(s)

Cases

Abebe v. Gonzales,

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

Abebe v. Mukasey,

514 F.3d 909 (9th Cir. 2008)

Alvarez v. Mukasey,

2008 U.S. App. LEXIS 13441

(10th Cir. June 24, 2008)

In re Blake,

23 I. & N. Dec. 722 (B.1.A. 2005)

Blake v. Carbone,

489 F.3d 88 (2d Cir. 2007) 14, 15, 16, 17, 18, 25, 30

In re Brieva,

231. &N. Dec. 766 (B.I.A. 2005)

Caroleo v. Gonzales,

476 F.3d 158 (3d Cir. 2007)

Chevron USA, Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984)

Dalombo Fontes v. Gonzales,

483 F.3d 115 (1st Cir. 2007)

Francis v. INS,

532 F.2d 268 (2d Cir. 1976)

In re G-A-,

71. & N. Dec. 274 (B.1.A. 1956)

INS v. St. Cyr,

Fe Br PE Dik vserccvisinacrnseieococosaiease 8, 9, 20, 26, 28

Kim v. Gonzales,

468 F.3d 58 (ist Cir. 2006)

Komarenko v. INS,

35 F.3d 432 (9th Cir. 1994)

In re Marin,

161.&N. Dec. 581 (B.1.A. 1978)

North Carolina v. Alford,

400 U.S. 25 (1970)

Palomino-Abad v. United States

227 FOG. Apps. S91 (11a Cir, 2007) 2.6....5.cccncceseoseesees

Plyler v. Doe,

457 U.S. 202 (1982)

Sanchez v. Gonzales,

473 F.3d 133 (Sth Cir. 2006)

In re Silva,

161. & N. Dec. 26 (B.I.A. 1976)

Soriano v. Gonzales,

489 F.3d 909 (8th Cir.

Valere v. Gonzales,

473 F.3d 757 (7th Cir.

Vo v. Gonzales,

482 F.3d 363 (Sth Cir.

Vue v. Gonzales,

496 F.3d 858 (8th Cir.

In re Wadud,

19 1.&N. Dec. 182 (B.LA. 1984)

Zamora-Mallari v. Mukasey,

514 F.3d 679 (7th Cir. 2008)

Vill

Federal Constitution, Statutes, and

Regulations

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8 U.S.C. § 1182(a)(2)(A)(i)(1)..--eceeseeceeeeee- 12, 13, 19, 29, 31

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2B U.S.C. § 1254(1) cecccccecece -sihvctcsiieaistes aoe

OG ee OS 2 cand aa\t

Illegal Immigration Reform and

Immigrant Responsibility Act

(“IIRTIRA’’), 110 Stat. 3009-546 (1996)... eee 8

1X

Miscellaneous

Administrative Office of the United States

Courts, 2007 Annual Report of the Director:

Judicial Business of the United States

oda sided Secihdepseneeusansasesivscevons 30, 31

TRAC, “New Data on The Processing of

Aggravated Felonies (Jan. 5, 2007),” available

at http://trac.syr.edu/immigration/reports

Gast VieWEG ON Aug. 18. ZO08).........ccccrscrssescorereeeeveees 27

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The decision of the United States Court of

Appeals for the First Circuit is published at 529 F.3d

62 and is reproduced in the appendix (“App.”) at

App. 1-6. The decision of the Board of Immigration

Appeals is unpublished and is reproduced in the

appendix at App. 7-8. The decision of the

Immigration Judge is unpublished and is reproduced

in the appendix at App. 9-14.

JURISDICTION

The United States Court of Appeals for the First

Circuit filed its opinion on June 18, 2008.

Mr. Gonzalez-Mesias sought and was granted an

extension of time to file this petition until October

31, 2008. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

This case involves application of the Fifth

Amendment to the United States Constitution,

which is reproduced in relevant part in the Statutory

Appendix at App. 15.

The statutory provisions at the center of this case

are former § 212(c) of the Immigration and

Naturalization Act, 8 U.S.C. § 1182(c) (repealed

1996), as well as 8 U.S.C. § 1182(a)(2)(A), and 8

U.S.C. § 1227(a)(2)(A). These provisions are

reproduced in the Statutory Appendix at App. 15-19.

Also, 8 C.F.R. § 1212.3(f)(5) is reproduced in the

Statutory Appendix at App. 19.

STATEMENT OF THE CASE

Every year the Immigration and Naturalization

Service (“INS”) deports thousands of lawful

permanent residents (“LPRs”) like Petitioner

Robinson Wladimir Gonzalez-Mesias for offenses—

often youthful and long-forgotten indiscretions

committed years, even decades, earlier. The only

hope for many of these LPRs to remain in the United

States is a waiver of removal under § 212(c) of the

Immigration and Naturalization Act (“INA”), 8

U.S.C. § 1182(c). Although this provision was

repealed in 1996, it continues to dictate the outcome

of countless immigration cases. The provision’s

application to the common fact-pattern presented in

this case has vexed the courts of appeals for years.

The circuits are hopelessly split. Whether or not

an LPR in Mr. Gonzalez-Mesias’s position is

deported depends on the accident of geography. Had

Mr. Gonzalez-Mesias lived in New York or anywhere

else in the Second Circuit, he would be eligible for a

waiver of deportation. Because he lived in Puerto

Rico, he is not eligible for a waiver; the First Circuit,

like five others, follows a rule that bars him from

seeking a waiver no matter how compelling a case he

can make.

The Struggles of the Executive and the Courts

to Implement § 2!2(c) Relief

The confusion arises from the struggles of the

Bureau of Immigration Appeals and the judiciary to

implement § 212(c) relef in a manner that is

consistent with constitutional strictures—

specifically, with the constitutional imperative not to

draw irrational distinctions between = similarly

situated individuals. The challenge has been to

ensure that an LPR who never left our country after

he immigrated is not subjected to harsher treatment,

by virtue of that constancy alone, as compared to an

otherwise identical LPR who once left and came

back.

The possibility of differential treatment arises

because, under the INA, the Government can expel

an alien from the United States on either of two sets

of statutory grounds—grounds of deportation or

grounds of exclusion (also referred to as grounds of

‘“Inadmissibility”). All almens present in the United

States may be subject to the statutory grounds for

deportation. Only aliens who are seeking entry into

the country for the first time, however, or who, after

lawfully entering, have left the country and

returned, may be subject to the statutory grounds for

exclusion.

One basis on which the Government might move

either to deport or exclude an LPR is if the LPR was

convicted of a crime while in the United States. The

list of offenses that serve as grounds for deportation

is similar to the list of offenses that serve as grounds

for exclusion, but the two lists are not identical.

Compare 8 U.S.C. § 1227(a)(2) (enumerating 33

deportation grounds) with 8 U.S.C. § 1182(a)(2)

(enumerating 46 grounds of exclusion).!

1 Under current law (and since 1996), immigration judges

decide both deportability and excludability in “removal”

4

Even if an LPR is removable, the Attorney

General has discretion under certain statutes to

grant a waiver. Until 1996, the central provision

governing waivers was § 212(c) of the INA. Even

since Congress repealed § 212(c) in 1996, the

provision has continued to play a significant role in

many immigration proceedings. We describe the old

regime first, and then explain the form in which

§ 212(c) persists after repeal.

Section 212(c) Waivers Before 1996. Section

212(c) granted the Attorney General discretion to

waive exclusion, under certain circumstances, for

“lajhens 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). Thus, § 212(c)’s explicit language

only applied to exclusion proceedings and not to

deportation proceedings. ”

proceedings, rather than strictly “deportation” proceedings or

“exclusion” proceedings. See 8 U.S.C. § 1229a. The statutory

grounds for deportation nonetheless remain separate from the

statutory grounds for exclusion.

2 In the deportation context, § 244 of the INA gave the Attorney

General discretion to suspend the deportation of a person who

(1) resided in the United States for at least 10 years straight

after committing a deportable offense, and (2) possessed “good

moral character,’ if (3) the deportation would “result in

exceptional and extremely unusual hardship to the alien or to

his spouse, parent, or child.” 8 U.S.C. § 1254(a)(2) (repealed

1996).

A literal reading of § 212(c) gave rise to an

anomaly: If an LPR committed an _ offense

constituting a basis for exclusion, left the country

and upon reentry was put into exclusion

proceedings, the LPR could seek a waiver of

exclusion under § 212(c). If, however, that same

LPR was allowed to reenter the country, but was

subsequently put into deportation proceedings,

§ 212(c) relief would not be _ available. The

availability of a waiver, in other words, depended

upon the accident of whether the Government

decided to exclude an alien at the border (in which

case he could get a waiver) or let him enter and later

decided to deport him (in which case he could not).

Over 50 years ago, the Bureau of Immigration

Appeals (“BIA”) resolved this anomaly by holding

that a § 212(c) waiver would be available to an LPR

in either circumstance. See In re G-A-, 71. & N. Dec.

274, 275-76 (B.LA. 1956). Treating the two similarly

situated classes of aliens differently, the BIA held,

“would be clearly repugnant.” Jd. at 276. An LPR

who committed an offense in the United States that

would be a basis for exclusion, then departed and

was permitted to return to the United States after

commission of the offense, was thus eligible for a

waiver even if he was subjected to deportation

proceedings, rather than exclusion proceedings, after

reentry. Jd. at 275-76. Under this ruling, eligibility

for a § 212(c) waiver in the deportation context still

depended on whetuer the LPR had physically left

and reentered th: country after committing the

relevant offense, but it no longer depended on the

fortuity of whether the Government chose _ to

institute exclusion or deportation proceedings.

6

While this BIA ruling resolved one anomaly, it

gave rise to another: An LPR who had left the

country and reentered could get a § 212(c) waiver of

deportation, whereas an LPR who was otherwise

identically situated, but had never left the country,

could not. A pair of twins could immigrate to the

United States together, acquire LPR status together,

commit a youthful crime together, and face removal

from the country together decades later, but still be

treated differently. One of the twins could be

treated more harshly simply because he never left

the United States once he immigrated, while his

brother gets preferential treatment merely because

he left the country for a few days and returned.

The courts interceded to resolve this anomaly.

More than 30 years ago, the Second Circuit held that

if a § 212(c) waiver is available to an LPR who

departs and reenters the country and later ends up

in deportation proceedings, it should be available to

an LPR who has never left the country. See Francis

v. INS, 532 F.2d 268 (2d Cir. 1976). The court ruled

that any distinction between those two groups of

LPRs in regard to the availability of a § 212(c)

waiver violated equal protection, because there was

no rational basis for such a distinction. Jd. at 269.

The BIA almost immediately acquiesced in the

Second Circuit’s decision, declaring that it would

treat similarly situated aliens equally with respect

to their applications for § 212(c) relief, without

regard for whether they had left the country after

their offense. In re Silva, 16 1. & N. Dec. 26, 30

(B.I.A. 1976).

The Second Circuit’s decision in Francis and the

BIA’s subsequent decision in Silva, however, did not

mean that all aliens in deportation proceedings were

eligible for § 212(c) relief. Rather, a waiver was

available to a deportable LPR who had never left the

country, only if a waiver would have been available

to a “similarly situated” excludable LPR who had left

the country and returned. Because the grounds for

deportation and exclusion are set forth in separate

statutes with different lists of offenses, however, a

conviction that would render an alien deportable

would not necessarily render the same _ alien

excludable, and vice versa. So the key question

became: How does one determine whether a

deportable LPR is “similarly situated” to an

excludable LPR?

The BIA adopted a test that has come to be

known as the “statutory counterpart” test, which

focuses on the statutory language defining the basis

of expulsion. See, e.g., In re Wadud, 19 1. & N. Dec.

182, 185-86 (B.1.A. 1984). Specifically, an LPR

facing deportation was similarly situated to one

facing exclusion only if the statutorily defined

ground of deportation charged by the government

was also a statutorily defined ground of exclusion.

See, e.g., id. The INS eventually codified the BIA’s

statutory counterpart rule. See 8 C.F.R.

§ 1212.3(f)(5) (published on Sept. 28, 2004). Under

this rule, an LPR is ineligible for a § 212(c) waiver if

“(t]he alien is deportable under former § 241 of the

Act or removable under § 237 of the Act on a ground

which does not have a statutory counterpart in § 212

of the Act.” Jd.; see also In re Brieva, 23 1. & N. Dec.

766, 772-73 (B.1.A. 2005) (applying this test to deny

eligibility for § 212(c) relief); In re Blake, 23 1. & N.

Dec. 722, 729 (B.1.A. 2005) (same). The focus is

exclusively on comparing the statutory language in

the separate lists of grounds for exclusion and

deportation.

Section 212(c) Waivers After 1996. In 1996,

Congress amended the INA to withdraw the

Attorney General’s § 212(c) authority. See Illegal

Immigration Reform and Immigrant Responsibility

Act (“IIRIRA”), 110 Stat. 3009-546, 597 (1996). But

§ 212(c) continued to apply in some circumstances

even from the statutory grave. In particular, this

Court heid that it was unfair to deprive an LPR of

eligibility for a waiver of deportation under § 212(c)

if he had pled guilty to an offense in reliance on the

assumption that he could seek a waiver. See INS v.

St. Cyr, 5383 U.S. 289, 323-24 (2001). Accordingly,

the Court held that the repeal of § 212(c) was not

retroactive, and § 212(c) relief remained available

“for aliens...whose convictions were obtained

through plea agreements 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.” Jd. at 326.

The result was that an LPR who would have been

eligible for a § 212(c) waiver before 1996 was still

entitled to a waiver (at least if the basis for the

exclusion or deportation proceeding was a guilty

plea) despite the repeal.

In mandating this result, this Court recognized

that agency and judicial rulings over the previous

decades had extended § 212(c) relief beyond

exclusion proceedings, to the deportation context, as

well. Jd. at 294-96. The Court also acknowledged

that the extension of § 212(c) relief “has had great

9

practical importance, because deportable offenses

have historically been defined broadly.” Jd. at 295.

The Court noted, for example, that in 1988 Congress

specified that an alien was deportable upon

conviction for any “aggravated felony,” thereby

making “the class of aliens whose continued

residence in this country has depended on their

eligibility for § 212(c) relief... extremely large.” Id.

at 295-96. This Court did not, however, definitively

address the circumstances under which § 212(c)

relief would be available in the deportation context.

The Government Begins Deportation

Proceedings Against Mr. Gonzdlez-Mesias

Against this regulatory backdrop arose the

deportation proceedings against Mr. Gonzalez-

Mesias. Mr. Gonzalez-Mesias is a native and citizen

of Chile. A.R. 218.3 He entered the United States 30

years ago, in November 1978, as a visitor under a B-

2 visa. A.R. 378. Less than a year later, in

September 1979, Mr. Gonzalez-Mesias was granted

LPR status. Id.

In 1985, pursuant to ae plea _ bargain,

Mr. Gonzalez-Mesias entered an Alford plea (a no-

contest plea) to one count of sodomy and pled guilty

to aggravated sexual battery in a Virginia court.

A.R. 252-53; see North Carolina v. Alford, 400 U.S.

25 (1970). Although the Virginia court sentenced

Mr. Gonzalez-Mesias to concurrent 10-year prison

terms, the court suspended all but one month of the

concurrent sentences. A.R. 248-50. Mr. Gonzalez-

3“A R.” refers to the Administrative Record filed with the First

Circuit.

10

Mesias was thus required to serve one month in jail.

He has had no other brushes with the criminal

justice system in his 30 years in this country.

For 20 years, the Government did nothing to

change Mr. Gonzalez-Mesias’s immigration status.

Suddenly, in 2005, the U.S. Immigration and

Customs Enforcement Department (“ICE”) decided it

was time to expel him on the basis of those ancient

convictions. Because Mr. Gonzalez-Mesias has never

left the United States since his immigration, ICE’s

only option was to place him in deportation

proceedings. According to ICE, Mr. Gonzalez-

Mesias’s guilty pleas subjected him to deportation on

two statutory grounds: (1) for violating a law

relating to “sexual abuse of a minor” and (2) for

committing a “crime of violence... for which the

term of imprisonment... is at Jeast one year.” A.R.

70-71.; see also 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any

alien who is convicted of an aggravated felony at any

time after admission is’ deportable.”); itd.

§ 1101(a)(43)(A) (defining “sexual abuse of a minor”

as an “aggravated felony”); id. § 1101(a)(43)(F)

(defining a “crime of violence .. . for which the term

of imprisonment is at least one year” as an

“aggravated felony”).

Mr. Gonzalez-Mesias apphed for a waiver

pursuant to § 212(c). A.R. 178-79. Jf such relief was

permissible, Mr. Gonzalez-Mesias was a_ strong

candidate. The criteria for granting § 212(c) rehef

include:

family ties within the United States,

residence of long duration in this country

(particularly when the inception of residence

11

occurred while the respondent was of young

age), evidence of hardship to the respondent

and family if deportation occurs, service in

this country’s Armed Forces, a history of

employment, the existence of property or

business ties, evidence of value and service

to the community, proof of a genuine

rehabilitation if a criminal record exists, and

other evidence attesting to a respondent’s

good character (e.g., affidavits from family,

friends, and responsible community

representatives).

In re Marin, 16 I. & N. Dec. 581, 584-85 (B.1LA.

1978). Mr. Gonzalez-Mesias has lived in the United

States for all of his adult life, since his immigration

in 1978 at the age of 18. A.R. 373. He has been

married to a United States citizen for over 14 years,

except for a brief six month period when they

divorced and remarried each other. A.R. 58-65.

While in the United States, he maintained an

excellent employment record and owned his own

business. A.R. 279-80. Since his 1985

transgressions, Mr. Gonzalez-Mesias’s record has

been completely clean. A.R. 66-67.

But all this begs the key question: whether

Mr. Gonzalez-Mesias was eligible for a waiver. That

inquiry turns on whether he would have been

eligible for a waiver of deportation before 1996,

which, in turn, depends upon whether he was

similarly situated to an LPR who would have been

entitled to a waiver from exclusion.

12

Intervening BIA Authority Undermines the Bid

for a Waiver, But Is Overturned

While the deportation proceedings were pending

against Mr. Gonzalez-Mesias, the BIA issued two

rulings that undermined his bid for § 212(c) relief: In

re Brieva, 23 1. & N. Dec. 766 (B.1.A. 2005); and Jn re

Blake, 23 1. & N. Dec. 722 (B.1.A. 2005).

Blake involved an alien who was deportable due

to a conviction for sexual abuse of a minor. In

keeping with its statutory counterpart rule, the BIA

held that whether an alien was similarly situated to

aliens in exclusion proceedings turned upon

“whether Congress has employed similar language

to describe substantially equivalent categories of

offenses.” 23 1. & N. Dec. at 728 (emphasis added).

The inquiry did not turn upon whether the alien’s

actual conduct would have fallen within a ground for

exclusion.

In the case of the alien in Blake, the basis for his

deportation was that his sexual abuse offense

constituted an “aggravated felony.” Jd. at 722; 8

U.S.C. § 1227(a)(2)(A)G@iil) (‘Any alien who is

convicted of an aggravated felony at any time after

admission is deportable.”). If he had been in

exclusion proceedings, the basis for his exclusion

could have been that the same offense was a crime of

“moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)()()

(providing, with exceptions not relevant here, that

“any alien convicted of...a crime involving moral

turpitude (other than a purely political offense) or an

attempt or conspiracy to commit such a crime... is

inadmissible”). Under the statutory cintenmar

rule, the BIA held, the alien was not similarly

13

situated to an excludable alien who would have been

eligible for waiver from exclusion. “[T]he moral

turpitude ground of exclusion,” the BIA held,

“addresses a...much broader category of offenses

than the aggravated felony sexual abuse of a minor

charge.” 23 1. & N. Dec. at 728. Accordingly, the

BIA held that the LPR was ineligible for a § 212(c)

waiver. Id. at 729.

The BIA reached the same _ result under

comparable facts in Brieva. That case involved an

alien who was deportable due to a conviction for

“unauthorized use of a motor vehicle.” 23 1. & N.

Dec. at 767 (citation omitted). That offense made

the LPR deportable because it constituted a “crime of

violence.” 8 U.S.C. § 1227(a)(2)(A)Gn) (“Any alien

who is convicted of an aggravated felony at any time

after admission is deportable.”); id. § 1101(a)(43)(F)

(defining a “crime of violence... for which the term

of imprisonment is at least one year” as an

“aggravated felony”). If he had ever left the country,

he could have been excludable on the ground that he

had committed a crime of “moral turpitude,” id.

§ 1182(a)(2)(A)G)(1), and he would have been eligible

for a waiver of exclusion. But the BIA held that he

was not eligible for a waiver of deportation. It

reasoned: “Although there need not be perfect

symmetry 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(a)(2)(A)(i)(1)

(crime involving moral turpitude).” 23 I. & N. Dec.

at 773.

14

Bound by the BIA’s decisions in Blake and

Brieva, the Immigration Judge (“IJ”) denied

Mr. Gonzalez-Mesias’s application for a § 212(c)

waiver. App. 13. Relying on Brieva and Blake, she

reasoned:

[T]he respondent is barred from receiving

relief under Section 212(c) because the [BIA]

has specifically stated that a crime of sexual

abuse of a minor... places him in a position

that he would be ineligible for relief under

Section 212(c) inasmuch as there’s no

comparable ground between his deportation

ground and an inadmissibility ground.

kkk

The Court has made a determination

that both [of Mr. Gonzaélez-Mesias’s] crimes

involve violence, and as such, the Court

made a finding that he was also deportable

because he was an aggravated felon because

he had committed a crime of violence to

which he was sentenced for 10 years.

Therefore, under Matter of Brieva this

respondent is definitely barred from filing

relief under former Section 212(c) inasmuch

as there’s no comparable ground for a crime

of violence under Section 212(c).

App. 12-13.

But then, after the IJ issued this ruling, the

Second Circuit reversed the BJA’s ruling in Blake.

See Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). It

held that the statutory counterpart rule that the BIA

had been applying still yielded irrational distinctions

15

based upon whether or not the LPR had ever left the

country. Jd. at 104.

The BIA and First Circuit Affirm

On appeal of the IJ’s determination in his case,

Mr. Gonzalez-Mesias urged the BIA to overrule its

rulings in Brieva and Blake, in light of the Second

Circuit's reversal of Blake. App.4. The BIA

dismissed Mr. Gonzalez-Mesias’s appeal, declining to

revisit Blake and Brieva. App. 8. The BIA reasoned:

We recognize that the United States Court of

Appeals for the Second Circuit disagrees

with the Board’s analysis in Matter of Blake,

but we decline to follow the Second Circuit’s

holding in cases arising outside of that

Circuit. See Blake v. Carbone, 489 F.3d 88

(2d Cir. 2007). Accordingly, the appeal is

dismissed.

App. 8.

Mr. Gonzalez-Mesias appealed the BIA’s decision

to the First Circuit. He urged the First Circuit to

adopt the Second Circuit’s rationale in Blake and

reject the statutory counterpart test. App. 5. The

First Circuit, however, followed its recent precedent

upholding the statutory counterpart test. App. 6

(citing Dalombo Fontes v. Gonzales, 483 F.3d 115

(Ist Cir. 2007), and Kim v. Gonzales, 468 F.3d 58

(Ist Cir. 2006)). In doing so, the First Circuit

recognized that its decision was in direct conflict

with the Second Circuit’s decision in Blake. App. 5.

16

REASONS FOR GRANTING THE PETITION

I THE CIRCUITS ARE SPLIT OVER

WHETHER THE STATUTORY

COUNTERPART TEST FOR § 212(C)

RELIEF VIOLATES EQUAL PROTECTION.

This case presents an inter-circuit conflict over

whether the application of the statutory counterpart

test violates equal protection. Today seven circuits

have addressed the question in published opinions.

The Second Circuit has concluded that the BIA’s

application of the statutory counterpart test violates

equal protection by failing to treat similarly situated

aliens equally. Five circuits, including the First

Circuit in this case, have concluded to the contrary

that the statutory counterpart test does not violate

equal protection. A split Ninth Circuit panel has

agreed with the majority rule, but the court will be

addressing this issue en banc.

A. The Second Circuit Has Concluded

That the Statutory Counterpart Test for

§ 212(c) Relief Violates Equal

Protection.

In Blake v. Carbone, the Second Circuit

acknowledged that the LPR before it would not be

eligible for a waiver under the statutory counterpart

test: “An aggravated felony need not be a crime

involving moral turpitude. A crime involving moral

turpitude similarly need not be an aggravated

felony.” Jd. at 102. Nevertheless, the court held that

the LPR was eligible for a waiver because the

statutory counterpart test did not sufficiently

safeguard the right to equal protection. Jd. at 103.

17

The Second Circuit reasoned that the statutory

counterpart tests emphasis on finding similar

language in the lists of offenses in 8 U.S.C. § 1182

and 8 U.S.C. § 1227 missed the point of the equal

protection analysis. Jd. at 102. The point of the

equal protection analysis is that LPRs must receive

similar access to § 212(c) relhef regardless of whether

they were in deportation proceedings or exclusion

proceedings—specifically, regardless of whether or

not they left the country for a brief trip. Jd. (citing

Francis, 532 F.2d at 273). The equal protection

analysis did not turn on the particular language

Congress chose to describe categories of crimes, the

court held. Jd.‘

Instead, the court held, the focus must be on the

offense the LPR committed—.e., on his actual

conduct. Jd. Specifically, “petitioners’ eligibility for

4 The court in Blake also noted that the BILA’s interpretation of

§ 212(c) was not entitled to deference under Chevron USA, Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

489 F.3d at 100. Under Chevron, the court’s first step is to

determine whether the statutory language is clear. If it is

clear, “that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent

of Congress.” 467 U.S. at 842-43. If, however, the language is

not clear, then the court should defer to an agency's

interpretation of a statute if the agency has provided a

reasonable interpretation. Jd. In Blake, the Second Circuit

concluded that § 212(c) was never intended to apply to LPRs in

deportation proceedings, so there was no ambiguity in the

statutory language. 489 F.3d at 100. Because § 212(c) relief

had been extended to deportation proceedings as a result of

constitutional necessity—not the result of statutory

interpretation—the court found no basis to defer to the BIA’s

interpretation. Zd.

18

a § 212(c) waiver must turn on their particular

criminal offenses. If the offense that renders a

[LPR] deportable would render a similarly situated

[LPR] excludable, the deportable [LPR] is eligibie for

a waiver of deportation.” Id.

In holding that the statutory counterpart test

was unconstitutional, the Second Circuit recognized

that it was parting ways with other circuits. See id.

at 103. (citing as contrary authority, Caroleo v.

Gonzales, 476 F.3d 158, 168 (3d Cir. 2007); Kim, 468

F.3d at 62, Vo v. Gonzales, 482 F.3d 363 (5th Cir.

2007); Sanchez v. Gonzales, 473 F.3d 133 (5th Cir.

2006); and Komarenko v. INS, 35 F.3d 432 (9th Cir.

1994)). Nonetheless, the Blake court observed that it

was “bound by Francis’s mandate to ensure that

‘{(LPRs] who are in like circumstances, but for

irrelevant and fortuitous factors, be treated in a like

manner.” Jd. at 104 (quoting Francis, 532 F.2d at

273).

B. The Ninth Circuit Initially Concluded

That the Statutory Counterpart Test

Did Not Violate Equal Protection, But

Has Taken the Issue Up for Rehearing

En Banc.

Although the Ninth Circuit initially concluded

that the statutory counterpart test did not violate

equal protection, the court has decided to hear this

issue en banc. Two decisions are relevant to

understanding the Ninth Circuit’s current analysis

of this issue.

In Komarenko, the _ petitioner conceded

removability because he was convicted of a “firearms

charge” under 8 U.S.C. § 1251(a)(2)(C) (deportation

19

provisions subsequently amended and transferred to

§ 1227(a)(2)(C)), but he sought a waiver under

§ 212(c) because his offense could also constitute a

ground of exclusion as a “crime involving moral

turpitude” under 8 U.S.C. § 1182(a)(2)(A)@i)(). See

35 F.3d at 434-35. The Ninth Circuit rejected this

argument, stating that “when courts have found an

equal protection violation, the excludability and

deportation provisions have been’ substantially

identical,” while “[i]n the instant case, the provisions

are entirely dissimilar, and the distinction between

the two classes is not arbitrary or unreasonable.”

35 F.3d at 435. The court concluded by stating that

“the linchpin of the equal protection analysis in this

context is that the two provisions be substantially

identical.” Jd. (internal quotation omitted). Thus,

under Komarenko, the BIA’s statutory counterpart

test passed constitutional muster.

In Abebe v. Gonzales, 493 F.3d 1092 (9th Cir.

2007), the Ninth Circuit reaffirmed its holding in

Komarenko that the deportation and _ exclusion

provisions must be substantially identical. See id. at

1104-05. The Court interpreted the equal protection

analysis in Francis to require only “that the

government give the same benefit (the waiver of a

particular ground of inadmissibility) to aliens

whether or not they depart the United States.

Komarenko establishes that ‘the linchpin of the

equal protection analysis in this context is that the

[deportation and exclusion] provisions be

substantially identical.” Id. at 1105 (quoting

Komarenko, 35 F.3d at 435).

In a concurring opinion, Judge Berzon wrote

separately to explain that she “would decide this

20

case differently than does the majority” if the panel

was “not constrained by Komarenko.” 493 F.3d at

1106. In Judge Berzon’s view “Komarenko...was

wrongly decided, in large part for the reasons that

the Second Circuit recently explained in a thorough

analysis of the equal protection issue underlying this

case.” Id. Judge Berzon agreed with the Second

Circuits focus on the crime committed, and

advocated rejecting the approach of focusing on

statutory language. In Judge Berzon’s view, “we

should simply ask whether a deportable alien would

also have been excludable for the offense that

rendered him deportable, regardless of the statutory

ground under which that offense falls.” Id.

Judge Berzon stated an additional reason for

reconsidering the Ninth Circuit’s decision in

Komarenko and joining the Second Circuit’s decision

in Blake:

Although the Supreme Court has not directly

addressed the issue in this case, it has

assumed a premise consistent only with the

offense-specific approach of the Second

Circuit. INS v. St. Cyr, 533 U.S. 289 (2001),

observed that “[t]he extension of § 212(c)

relief to the deportation context has had

great practical importance, because

deportable offenses have historically been

defined broadly.” Jd. at 295. As an example

of the crimes that could be waived under

§ 212(c), the Court cited a particularly large

and growing category of deportable offenses:

aggravated felonies. Jd. at 295 & n.4. Yet, it

is precisely this category of offenses that

21

co

Matter of Blake and Komarenko are most

likely to render unwaivable.

Id. at 1109-10.

On January 25, 2008, a majority of the active

judges on the Ninth Circuit decided to take the case

for rehearing en banc. See Abebe v. Mukasey, 514

F.3d 909 (9th Cir. 2008). The case was argued and

submitted to the en banc Ninth Circuit on March 25,

2008. No opinion has yet been issued.

C. The First, Third, Fifth, Seventh, and

Eighth Circuits Hav: Concluded That

the Statutory Counterpart Test for

§ 212(c) Relief Does Not Violate Equal

Protection.

Five other circuits have held in _ published

opinions that the statutory counterpart test for

§ 212(c) relief does not violate equal protection. The

circuits that have so held are the First, Third, Fifth,

Seventh, and Eighth circuits.®

The Seventh Circuit was the first to address the

constitutionality of the statutory counterpart test

after the BIA’s decisions in Blake and Brieva. See

5 In an unpublished opinion, the Tenth Circuit has also

concluded that the statutory counterpart test for § 212(c) relief

does not violate equal protection. See Alvarez v. Mukasey, No.

07-9528, 2008 U.S. App. LEXIS 13441, at *13-14 (10th Cir.

June 24, 2008). In an unpublished opinion, the Eleventh

Circuit remanded to the BIA rather than deciding the issue.

See Palomino-Abad v. United States, 229 Fed. Appx. 891, 892

(11th Cir. 2007). The Fourth, Sixth, and D.C. Circuits have not

reached the issue.

22

Valere v. Gonzales, 473 F.3d 757 (7th Cir. 2007).

The court stated that “the requirement of a

comparable ground of exclusion in § 212(a)—a

‘statutory counterpart—is what makes a removable,

nondeparting alien similarly situated to an

inadmissible alien in the first place.” Jd. at 762.

However, the Seventh Circuit then promptly

confused the issue by stating: “If the removable

alien’s crime of conviction is not substantially

equivalent to a ground of inadmissibility under

§ 212(a), then the removable alien is not similarly

situated for purposes of claiming an equal protection

right to apply for § 212(c) relief.” Jd. at 762

(emphasis added). Of course, this language suggests

that the Second Circuit’s offense-based approach is

the only approach that would satisfy equal

protection.

Despite the confusion in its analysis in Valere,

the Seventh Circuit has since unequivocally rejected

the Second Circuit’s approach in Blake. In Zamora-

Mallari v. Mukasey, 514 F.3d 679 (7th Cir. 2008),

decided after the Second Circuit’s decision in Blake,

the Seventh Circuit reaffirmed its holding in Valere,

noted that the Ninth Circuit's reasoning in

Komarenko was “particularly persuasive,” and

rejected the Second Circuit’s analysis in Blake as in

“conflict{] with every other circuit that has

confronted the issue.” Id. at 691-92.

The Third Circuit has reached the same

conclusion, with a more straightforward analysis,

drawing on the Ninth Circuit’s decision in

Komarenko:

23

As Komarenko, Brieva, and Blake make

clear, the underlying crime for which Caroleo

was convicted plays no role in this inquiry.

It is therefore irrelevant that Careoleo’s

conviction for attempted murder could have

subjected him to removal as an alien

convicted of a crime of moral turpitude under

INA § 237(a)(2)(A)(i). Once the government

has categorized his offense as a “crime of

violence” in removal proceedings, and that

categorization has been upheld, our § 212(c)

inquiry focuses on whether this statutory

ground for removal is __ substantially

equivalent to any of the statutory grounds

for exclusion contained in INA § 212(a).

Caroleo, 476 F.3d at 168 Gnternal citation omitted).

The Fifth Circuit has followed suit in equally

emphatic language, noting that “[e]ven if deportable

and excludable aliens can be considered similarly

situated, there is a rational basis for distinguishing

between the two” because “Congress’s more lenient

treatment of excludable as distinct from deportable

aliens ...creates an incentive for deportable aliens

to leave the country.” Vo, 482 F.3d at 371 (citation

omitted). The court added that “Congress chose to

make certain excludable aliens’ eligible for

discretionary relhef under §212(c), and the

expansion of that provision, required by Francis and

Silva, has only been extended to those for whom the

ground of deportability has a comparable ground of

inadmissibility.” Jd. at 372.

In ruling the same way in this case, the First

Circuit was building upon preexisting precedent that

24

reached the same conclusion. See Dalombo Fontes,

483 F.3d at 123. And then, in this case, as noted

above, the First Circuit acknowledged its conflict

with the Second Circuit’s intervening in Blake, but

steadfastly reaffirmed its own earlier holding.

App. 5-6.

The Eighth Circuit, too, followed its sister circuits

before the Second Circuit decided Blake. See

Soriano v. Gonzales, 489 F.3d 909, 909-10 (8th Cir.

2006). Later, the Eighth Circuit acknowledged the

conflict with Blake, but nevertheless reaffirmed its

position and declined to follow the Second Circuit’s

lead. See Vue v. Gonzales, 496 F.3d 858, 860 (8th

Cir. 2007) (“Vue’s conviction of an aggravated

felony—a crime of violence—made him deportable.

Because this ground of deportation does not have a

statutory counterpart in § 212(a), he cannot claim

§ 212(c) relief. This also defeats his equal protection

claim.”).

D. This Inter-Circuit Conflict Is Widely

Recognized and Intractable.

In reaching its decision in Blake, the Second

Circuit recognized that it was parting ways with

other circuits:

We recognize our holding is at odds with that

reached by several other circuits.... We

cannot follow the lead of the Ninth Circuit

and the other courts that have considered

the issue because we are bound by Francis’s

mandate to ensure that “permanent

residents who are in like circumstances, but

for irrelevant and fortuitous factors, be

25

treated in a like manner.” Were we to

approve of these other courts’ formulaic

approach—limiting ourselves only to the

language in the _ relevant grounds of

deportation and exclusion—we would be

ignoring our precedent that requires us to

examine the circumstances of the deportable

alien, rather than the language Congress

used to classify his or her status.

489 F.3d at 103-04 (internal citation omitted).

Court of appeals decisions since Blake have

recognized the continuing circuit split. The Seventh

Circuit recognized that “two circuits have rejected

Blake’s approach in published opinions,” Zamora-

Mallari, 514 F.3d at 688, although the Ninth Circuit

later vacated its decision in Abebe to allow the court

to take the case en banc, 514 F.3d 909. The First

Circuit in this case noted that its reasoning was

consistent with the majority of the circuits, but “the

Second Circuit’s decision in Blake v. Carbone is at

odds.” App. 5. The First Circuit also noted that the

BIA had “declined to overrule its decisions in Brieva

and Blake, and while it recognized the Second

Circuit’s decision to the contrary, the BIA noted that

it ‘decline[d] to follow the Second Circuit's holding in

cases arising outside of that Circuit.” App. 4

(quoting App. 8). ‘

In two of the circuits that have declined to follow

Blake, panel members have issued concurring

opinions advocating the Second Circuit’s approach in

the Blake decision, but recognizing that Blake was at

odds with the controlling opinions in their circuits.

26

Abebe, 493 F.3d at 1106 (Berzon, J., concurring);

Vue, 496 F.3d at 863 (Bye, J., concurring).

In short, the issue has fully percolated in the

courts of appeals. Circuits on either side have

considered, and rejected, the opposing arguments.

The split is intractable and the courts are

entrenched. Only this Court can break the impasse.

Il. THE QUESTION PRESENTED INVOLVES A

RECURRING ISSUE OF SUBSTANTIAL

IMPORTANCE.

Despite the unavailability of § 212(c) relief under

current law, § 212(c) relief continues to be critically

important to those LPRs whose criminal convictions

pre-date its repeal. As this Court recognized in St.

Cyr, the “extension of §212(c) relief to the

deportation context has had_ great practical

importance.” 533 U.S. at 295. In recognition of this

importance, St. Cyr ensured that § 212(c) relief

would remain available to aliens who pled guilty to a

deportable crime before the enactment of ITRIRA.

In St. Cyr, this Court predicted that a large

number of individuals would be affected by the

Court’s decision: “Since the 1996 statutes expanded

the definition of ‘aggravated felony’ substantially—

and retroactively—the number of individuals now

subject to deportation absent § 212(c) relief is

significantly higher than these figures would

suggest.” 533 U.S. at 296 n.6. Although there are no

clear statistics revealing the bases of removal for

LPRs, there is reason to believe that this Court was

correct in its prediction that the number of removal

orders issued for “aggravated felons” would increase.

ai

According to the Transactional Records Access

Clearinghcuse (“TRAC”), which has conducted a

comprehensive study of cases, an estimated 300,000

non-citizens have been ordered deported from the

United States in the last decade and a half based on

crimes categorized as “aggravated felonies.” The

number of removal orders issued for “aggravated

felons” has been increasing progressively each year.

See TRAC New Data.

Although St. Cyr predicted that the preservation

of § 212(c) relief would be important for this

increasing number of individuals’ subject’ to

deportation because they have been convicted of an

“aggravated felony,” the statutory counterpart test

virtually guarantees that aliens who have committed

crimes classified by the BIA as aggravated felonies

will be ineligible for § 212(c) relief.

Aggravated felonies will most often fail the

comparable grounds test. Although the

category includes numerous crimes for which

an arriving alien could be excluded, the term

“aggravated felony” never appears as a

ground for exclusion. Furthermore, the

6 See TRAC, “New Data on the Processing of Aggravated

Felonies (Jan. 5, 2007),” available at

http://trac.syr.edu/immigration/reports/175/ (last viewed on

Aug. 18. 2008) (“TRAC New Data”). Additionally, 87,844 lawful

permanent residents were deported for criminal convictions

between April 1, 1997 and August 1, 2007, according to

Immigration and Customs Enforcement statistics obtained

through a Freedom of Information Act request by Human

Rights Watch, and to be published in a forthcoming report by

that organization.

28

category of aggravated felonies, as well as

the subcategories enumerated in the statute,

see 8 U.S.C. §1101(a)(43), imprecisely

overlap with the most similar category of

excludable offenses: crimes involving moral

turpitude.

Abebe, 493 F.3d at 1110 (Berzon, J., concurring).

The issue of statutory eligibility becomes more

important for LPRs as the years go by because the

individuals who would seek § 212(c) relief become

more likely to merit waiver. Some individuals in

removal proceedings because they have applied to

renew an expiring alien residence card or are

seeking to apply for citizenship may have old

convictions. Individuals with old convictions (often

minor), subsequent rehabilitation, and otherwise

good records of moral character would be strong

candidates for § 212(c) relief if they were not

otherwise ineligible. This Court also recognized that

“{ijn addition, the nature of the changes [to the

grounds of deportation] (bringing under the

definition more minor crimes which may have been

committed many years ago) suggests that an

increased percentage of applicants will meet the

stated criteria for § 212(c) relief.” St. Cyr, 533 U.S.

at 296 n.6.

Moreover, the BIA’s statutory counterpart test

creates an incentive for manipulation of the

deportation proceedings to prevent petitioners who

may otherwise be eligible for a § 212(c) waiver from

obtaining relief. Because the statutory counterpart

test turns on the ground of deportation on which the

Government elects to proceed (because the language

29

of that ground is then compared to the list of

grounds for exclusion to determine whether it is

sufficiently similar), the Government can choose to

categorize an offense in such a way as to foreclose

the LPR’s ability to seek relief under § 212(c). Many

criminal offenses could be classified within a number

of different categories. See generally 8 U.S.C. § 1182;

id. § 1227. Because the decision on which ground to

proceed is solely within the control of the

Government, the choice of how to categorize an

offense determines whether that offense will pass or

fail the statutory counterpart test. For example,

crimes of moral turpitude render an alien both

deportable and excludable. See id.

§ 1182(a)(2)(A)(G)(1) (listing crimes of moral turpitude

as a basis for exclusion); id. § 1227(a)(2)(A)(Q) 1)

(listing crimes of moral turpitude as a basis for

deportation). However, the Government can choose

to categorize offenses that would also constitute

crimes of moral turpitude under alternative grounds

of deportation, which then ensures that an LPR

cannot seek § 212(c) relief under the BIA’s statutory

counterpart test. Indeed, this appears to be exactly

what happened to Mr. Gonzalez-Mesias and the

petitioner in Blake.’

The importance of this circuit split is heightened

by the fact that a large percentage of the federal

courts’ immigration docket falls in the Second and

7 App. 12 (Government chose to proceed on sexual abuse of a

minor ground rather than categorizing offense as a crime of

moral turpitude, which has a statutory counterpart in the

grounds of exclusion); Blake, 23 I. & N. Dec. at 728 (same).

30

Ninth Circuits, two circuits that currently have

taken contrary positions on this issue. Compare

Komarenko, 35 F.3d at 435, with Blake, 489 F.3d at

104. The Second and Ninth Circuits review the vast

majority of appeals challenging decisions of the BIA.

In 2007, the federal courts reviewed 9,123 appeals of

BIA decisions. Administrative Office of the United

States Courts, 2007 Annual Report of the Director:

Judicial Business of the United States Courts at

Table B-3 (2008). Of this number, the Second

Circuit reviewed 2,177 appeals, 24% of the total

appeals. The Ninth Circuit reviewed 4,280 appeals,

constituting almost half of all the total appeals.

8 The Administrative Office of the United States Courts keeps

detailed statistics concerning the caseload of the federal courts.

For the years 2003 through 2007, the circuits handled the

following number of appeals of BIA decisions:

2003

2004

2005

DC Circuit

lst Circuit

7

1

0

140

140

222

2nd Circuit

2,081

2,632

2,090

3rd Circuit

471

518

690

4th Circuit

290

348

352

5th Circuit

393

483

593

6th Circuit

345

333

316

7th Circuit

234

255

257

8th Circuit

207

167

133

9th Circuit

4,206

5,368

6,583

10th Circuit

105

97

81

lith Circuit

354

470

572

Totals:

8,833

10,812

12,349

Id.

31

Combined, the Second and Ninth Circuit receive an

overwhelming 71% of the petitions for review

challenging decisions of the BIA. A split between

these two circuits alone would have a considerable

impact on the ability of the BIA to apply the INA

consistently across the country. On the other hand,

as demonstrated above, the few circuits that have

not yet reached the question presented here decide

relatively few immigration appeals each year. See

id.

There is an urgent need for this Court to resolve

this circuit split. Allowing this split to continue will

result in differential treatment of LPRs based solely

on what circuit will review their cases. Permitting

this split to continue will undermine the “scheme of

national regulation” established by the INA. See

generally Plyler v. Doe, 457 U.S. 202, 208 n.5 (1982)

(acknowledging that INA represents the federal

government’s “scheme of national regulation”).

The certainty of differential treatment is aptly

illustrated by this case. The First Circuit, following

the Ninth Circuit, found Mr. Gonzalez-Mesias

ineligible for § 212(c) relief because the ground of

deportability with which he was charged—the

aggravated felony ground of deportation for aliens

who have been convicted of “sexual abuse”’—had no

identical ground of exclusion. App. 5-6. If

Mr. Gonzalez-Mesias had been detained within the

jurisdiction of the Second Circuit rather than the

First Circuit, the question would have been whether

the offense that he committed would constitute a

ground of exclusion. In this case, Mr. Gonzalez-

Mesias could have—and almost certainly would

have—been able to show that his offense qualified

32

under INA § 212(a)(2)(A)G)D, 8 U.S.C.

§ 1182(a)(2)(A)@)d), as a crime involving moral

turpitude. In the Second Circuit, then,

Mr. Gonzalez-Mesias would have been eligible to

seek a waiver under § 212(c).

CONCLUSION

For the foregoing reasons, this Court should

grant a writ of certiorari to review the judgment of

the United States Court of Appeals for the First

Circuit.

Respectfully submitted,

Patrick D. O’Neill E. Joshua Rosenkranz

Jason P. Ramos Counsel of Record

O’NEILL & GILMORE, P.S.C. ORRICK, HERRINGTON &

Edif. Citibank Tower SUTCLIFFE LLP

252 Avenue Ponce de Leén 666 Fifth Avenue

Suite 1701 New York, NY 10103-0001

San Juan, PR 00918-2019 (212) 506-5000

(787) 620-0670

Malaika M. Eaton

1911 North 44th Street

Seattle, WA 98103

(206) 229-3555

Counsel for Petitioner

APPENDIX

App. |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ROBINSON WLADIMIR

GONZALEZ-MESIAS,

Petitioner,

No. 07-2346

ws OPINION

MICHAEL B. MUKASEY, UNITED

STATES ATTORNEY GENERAL

Respondent.

Petitioned for Review from the Board of

Immigration Appeals

File: A22 230 921- San Juan, PR—

Sandra Lea Lynch, C.J., Presiding

Argued: June 5, 2008

Decided and Filed: June 18, 2008

Before TORRUELLA, and LIPEZ,

Circuit Judges.

App. 2

COUNSEL

Patrick D. O'Neill, Jason P. Ramos, and

O'Neill & Gilmore, P.S.C., for Petitioner.

Corey L. Farrell, Attorney, Jeffrey S.

Bucholtz, Acting Assistant Attorney General,

and Terri J. Scadron, Assistant Director,

U.S. Department of Justice, for Respondent.

OPINION

SANDRA LEA LYNCH, Circuit Judge.

Robinson Gonzalez—Mesias, a native and citizen

of Chile, petitions for review of an August 2, 2007

decision by the Board of Immigration Appeals

(“BIA”) finding him ineligible for a waiver of

deportability, under’ section 212(c) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. §

1182(c) (repealed in 1996 but applicable to

petitioner). We deny the petition on the basis of our

prior circuit precedent, which rejects the Second

Circuit’s rule in Blake v. Carbone, 489 F.3d 88 (2d

Cir. 2007). See Dalombo Fontes v. Gonzales, 483

F.3d 115 (1st Cir.2007); Kim v. Gonzales, 468 F.3d

58 (1st Cir.2006).

a

Gonzalez—Mesias entered the United States in

1978 on a tourist visa, and a year later, he became a

lawful permanent resident. In 1985, Gonzalez—

Mesias pled guilty in Virginia state court to two

felonies: one count of aggravated sexual battery,

Va.Code § 18.2—67.3, and one count of sodomy, id. §

App. 3

18.2-67.1. He was sentenced to ten years’

imprisonment on each charge with the sentences to

run concurrently. The court suspended nine years

and 335 days of each sentence.

In January 2005, Immigration and Customs

Enforcement initiated removal proceedings against

Gonzalez—Mesias. The agency charged Gonzalez—

Mesias with removability, pursuant to 8 U.S.C. §

1227(a)(2)(A)Gii), as an ahen convicted of an

aggravated felony. The first charge was based on

his 1985 conviction for aggravated sexual battery,

tying it to the definition of aggravated felony in 8

U.S.C. § 1101({a)(43)(A) (“murder, rape, or sexual

abuse of a minor”). The second charge was based on

the 1985 sodomy conviction and was tied to 8 U.S.C.

§ 1101(a)(43)(F) (‘a crime of violence... for which

the term of imprisonment [was] at least one year’”).!

Gonzalez—Mesias conceded his removability to

the Immigration Judge (“IJ”) as to the first charge,

but challenged the second charge, arguing that his

sodomy conviction was not for a “crime of violence.”

The IJ found that Gonzalez—Mesias was deportable

on both grounds, and denied the petitioner's

application for a waiver of deportation under former

INA section 212(c), 8 U.S.C. § 1182(c), finding that

Gonzalez—Mesias was ineligible.

The IJ relied on two BIA decisions, /n re Brieva—

1 The Notice To Appear also included a third charge, that

Gonzalez-Mesias was deportable as an alien convicted of a

crime of domestic violence, under 8 U.S.C. § 1227(a)(2)(E)Q),

but this charge was later withdrawn.

App. 4

Perez, 23 1. & N. Dec. 766 (B.1.A.2005), and Jn re

Blake, 23 1. & N. Dec. 722 (B.1.A.2005); which limit

waivers of deportation under section 212(c) to only

those grounds of deportability for which there is a

comparable ground of inadmissibility under 8

U.S.C. § 1182(a)(2). The IJ held that Gonzalez—

Mesias was barred from relief because his two

grounds of deportability, sexual abuse of a minor

and a crime of violence, had no comparable grounds

of inadmissibility. Gonzalez—Mesias appealed to the

BIA. He asked the BIA to reconsider its rulings in

Brieva and Blake in light of the Second Circuit’s

decision in Blake v. Carbone, 489 F.3d 88, which

disagreed with the “comparable grounds” test set

out in Brieva and Blake. The BJA adopted and

affirmed the IJ’s decision and rejected the appeal. It

declined to overrule its decisions in Brieva and

Blake, and while it recognized the Second Circuit’s

decision to the contrary, the BIA noted that it

“decline[d] to follow the Second Circuit’s holding in

cases arising outside of that Circuit.” This timely

petition followed.

II.

Our jurisdiction is limited by the provisions of

the REAL ID Act of 2005, Pub. L. No. 109-13, 119

Stat. 231 (2005). Under it, we may review only

constitutional claims or questions of law raised by

criminal aliens under removal orders. 8 U.S.C. §

1252(a)(2)(C)-(D).

Our review of constitutional issues is de novo;

our review of issues of law gives deference to the

BIA’s interpretation of the immigration statutes it

is charged with enforcing. INS v. Aguirre—Aguirre,

y App. 5

526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590

(1999).

Gonzalez—Mesias’s main argument is that we

should adopt the Second Circuit’s rationale in Blake

v. Carbone and overrule the “comparable grounds”

test. He recognizes, however, that this would

require us to overrule two prior First Circuit cases,

Dalombo Fontes, 483 F.3d 115, and Kim, 468 F.3d

58. The arguments that Gonzdalez—Mesias makes

were squarely presented in both Dalombo Fontes

and Kim. Those cases affirmed the BIA’s rule in

Brieva and rejected the arguments that the Second

Circuit adopted in Blake v. Carbone and that

Gonzalez—Mesias repeats here. See Dalombo Fontes,

483 F.3d at 122-23; Kim, 468 F.3d at 61-63. Our

upholding of the BIA’s comparable grounds test is

consistent with rules adopted by the Third, Fifth,

Seventh, Ninth, Tenth, and Eleventh Circuits. See

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

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

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

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

Mukasey, No. 07-9516, —— Fed.Appx. , 2008

WL 1696968 (10th Cir. Apr.9, 2008) (unpublished

opinion); Rubio v. U.S. Attorney Gen., 182

Fed.Appx. 925 (11th Cir. 2006). Only the Second

Circuit’s decision in Blake v. Carbone is at odds.

Regardless of the merits of Gonzalez—Mesias’s

arguments (and we do not find them convincing),

we are bound by the law of the circuit doctrine.

That doctrine “holds a prior panel decision inviolate

absent either the occurrence of a_ controlling

App. 6

intervening event (e.g., a Supreme Court opinion

on the point; a ruling of the circuit, sitting en banc;

or a statutory overruling) or, in extremely rare

circumstances, where non-controlling but

persuasive case law suggests such a_ course.”

United States v. Chhien, 266 F.3d 1, 11 (lst

Cir.2001).

Gonzalez—Mesias argues that our decisions in

Dalombo Fontes and Kim are contrary to the

Supreme Court’s decision in INS v. St. Cyr, 533

U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

First, St. Cyr precedes our decisions in Dalombo

Fontes and Kim, and therefore is not a controlling

intervening event which would allow this panel to

overrule the two cases in the absence of an en banc

sitting of this court. Second, in both those cases, we

specifically analyzed St. Cyr and held that the

comparable grounds test was consistent with the

Court’s reasoning in St. Cyr. See Dalombo Fontes,

483 F.3d at 122—23; Kim, 468 F.3d at 61-63.

To the extent Gonzalez—Mesias is making

independent constitutional arguments, they are

without merit. The BIA’s decisions in Blake and

Brieva are not inconsistent with prior precedent

and they have not been applied in an arbitrary and

capricious manner to Gonzalez—Mesias. And

because he was treated the same as _ similarly

situated aliens, there is no equal protection

violation. See Dalombo Fontes, 483 F.3d at 123;

Kim, 468 F.3d at 62.

The petition is denied.

App. 7

BOARD OF IMMIGRATION APPEALS

Aug. 2, 2002

IN RE: ROBINSON WLADIMIR

GONZALEZ-MESIAS, File No. A22 230

Respondent. 921- San Juan,

PR

ORDER

Petitioned for Review from the Executive Office

for Immigration Review Immigration Court

File: A22 230 921- San Juan, PR

Decided and Filed: August 2, 2002

COUNSEL

Patrick D. O'Neill, Esq., for Petitioner.

Crimilda Guilloty, Assistant Chief Counsel,

for Department of Homeland Security.

OPINION

PER CURIAM. We adopt and affirm the

decision of the Immigration Judge. See Matter of

Burbano, 20 I&N Dec. 872, 874 (BIA 1994) (noting

App. 8

that adoption or affirmance of a decision of an

Immigration Judge, in whole or in part, is “simply a

statement that the Board’s conclusions upon review

of the record coincide with those which the

Immigration Judge articulated in his or her

decision”). We are not persuaded by the

respondent's arguments on appeal relating to the

propriety of our decisions in Matter of Blake, 23 I&N

Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N

Dec. 766 (BIA 2005), and their application to the

respondent’s proceedings. It is well established that

section 212(c) of the Immigration and Nationality

Act, 8 U.S.C. § 1182(c) (repealed 1996), is limited to

charges of deportability for which there is a

comparable ground of inadmissibility. Our decisions

in Matter of Blake and Matter of Brieva were not

based upon any change in the law; rather, they are

simply an extension of our long line of cases holding

that section 212(c) relief is only available where

there is a corresponding ground of inadmissibility.

We recognize that the United States Court of

Appeals for the Second Circuit disagrees with the

Board’s analysis in Matter of Blake, but we decline to

follow the Second Circuit’s holding in cases arising

outside of that Circuit. See Blake v. Carbone, 489

F.3d 88 (2d Cir. 2007). Accordingly, the appeal is

dismissed.

s/ [illegible]

FOR THE BOARD

App. 9

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW IMMIGRATION COURT

ae nr a

ROBINSON WLADIMIR GONZALEZ-

MESIAS,

Plaintiff-Appellant,

Sept. 8, 2005

File A 22 230 921

ORDER

Decided: September 8, 2008

Before IRMA LOPEZ-DEFILLO,

Immigration Judge.

COUNSEL

Jose Silva Cuerta, Esq., for Respondent.

Crimilda Guilloty, Esq., for the Government.

ORAL DECISION ISSUED BY THE

COURT

IRMA LOPEZ-DEFILLO, Immigration Judge.

App. 10

This case comes before the Court pursuant to a

Notice to Appear that has been marked as Exhibit 1.

On the same, the Government claims that the

respondent is deportable inasmuch as he’s not a

citizen of the United States, he’s a native and citizen

of Chile. He became a permanent resident in 1979.

In 1985, the respondent was convicted in the

Circuit Court of Fairfax Country, Virginia for the

offense of sodomy committed on or about November

15, 1984 in violation of the Code of Virginia, Section

18.2—67.1. On June 14, 1985 the respondent was

also convicted in the Circuit Court of Fairfax,

Virginia for the offense of aggravated sexual battery

committed on or about November 15, 1984 in

violation of the Code of Virginia, Section 18.2—67.3.

A sentence of a term of imprisonment of 10 years

was imposed, even though sentence was suspended.

The respondent is deemed deportable pursuant to

two modalities of Section 237(a) (2) (A) Qaii). This is

that the respondent is an aggravated felon as

defined in Section 101(a) (43) (A) of the Act, law

relating to sexual abuse of a minor, and 237(a) (2)

(A) (iii) because of 10l(a) (43) (F), in that the

respondent has been convicted of a crime of violence

for which the term of imprisonment ordered is at

least one year.

The respondent, represented by counsel,

admitted that all the allegations were correct. He

also admitted that he was deportable pursuant to

Section 237(a) (2) (A) (i11) because of 10i(a) (43) (A).

This is a law relating to sexual abuse of a minor. He

denied that he was deportable because of a

App. 11

conviction for an aggravated felony. The Court made

a determination that even though the respondent

was denying that in fact he had not committed a

crime of violence, the respondent’s conviction in fact

constituted violence as defined in Title 18 United

States Code Section 16 inasmuch as the respondent

was convicted for sodomy against a minor and the

indictment, which has been included in part of

Exhibit 2, clearly states that he engaged in

cunnilingus with Linda Mejia against her will by

force, threat, and intimidation.

In addition to that, the respondent stands

convicted of unlawfully and feloniously sexually

abusing Linda Mejia, a female age 13, by

intentionally touching her intimate parts or clothing

covering her such intimate parts. These two actions

on behalf of the respondent against a 13-year-old

child definitely fall under the definition of crime of

violence as annunciated in Title 18. United States

Code Section 16, which states in pertinent part,

Crime of violence, defined. Crime of violence means

an offense that has as an element the use of force,

attempted use, or threatened use of physical force

against the person or _ property of another.

Therefore, the respondent’s action falls squarely into

this definition.

The Court finds that this respondent is

deportable pursuant to both Section 101(a) (43) (A)

and Section 101(a) (42) (F) of the Act. Having made

this determination, the Court finds that the

respondent is deportable. Deportability has been

established by evidence that is clear and convincing,

App. 12

and this decision is based on unequivocal and

substantial evidence.

Now, as a relief from removal, the respondent is

asking for 212(c). The 212(c) form plus all

supporting documents have been received and are

part of this record. The Government has moved to

pretermit all relief under Section 212(c); and the

respondent claims that he should be allowed to go

ahead with 212(c) relief.

The Government’s contention is that under

Matter of Blake, 23 I&N Dec. 722 (BIA 2005), the

Board of Immigration Appeals has specifically held

that “an alien who is removable en the basis of his

conviction for sexual abuse of a minor is ineligible for

a waiver under former Section 212(c) of the

Immigration and Nationality Act”, 8 U.S.C. 1182(c)

(1994), because the aggravated felony ground of

removal with which he was charged has no statutory

counterpart in the grounds of inadmissibility of

Section 212(a) of the Act. 8 U.S.C. at 1182(a) (2000);

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

distinguished.

In this’ particular case, the respondent’s

conviction goes back to 1985 and as such, he was

asking to be allowed to ask for relief under

Section 212(c), which was repealed by ITRAIRA and

partially repealed by AEDPA. Nevertheless, in this

particular case, the respondent is barred from

receiving relief under Section 212Z(c) because the

Board of Immigration Appeals has specifically stated

that a crime of sexual abuse of a minor for which he

stands convicted places him in a position that he

App. 13

would be ineligible for relief under Section 212(c)

inasmuch as there’s no comparable ground between

his deportation ground and an _ inadmissibility

ground.

In addition, Matter of Brieva, 23 I&N Dec. 766

(BIA 2005), the Board of Immigration Appeals has

said that an alien who is removable on the basis of

his conviction for a criminal violence is ineligible for

a waiver under former Section 212(c) of the

Immigration and Nationality Act, 8 U.S.C. 1182(c)

(1994), because the aggravated felony ground of

removal for which he was charged has no statutory

counterpart in the grounds of inadmissibility under

Section 212(a) of the Act. 8 U.S.C. 1182(a) (2000).

In this particular case, the respondent was

convicted of sodomy and sexual abuse of a minor.

The Court has made a determination that both

crimes involve violence, and as such, the Court made

a finding that he was also deportable because he was

an aggravated felon because he had committed a

crime of violence to which he was sentenced for 10

years. Therefore, under Matter of Brieva this

respondent is definitely barred from filing relief

under former Section 212(c) inasmuch as there’s no

comparable ground for a crime of violence under

Section 212(c).

Having made that determination that by case law

this respondent is ineligible to file for relief under

Section 212(c), this Court has to pretermit

respondent's application for 212(c).

App. 14

Having the respondent made no other relief or

claim for removal, the following order shall be

entered.

ORDER

IT IS HEREBY ORDERED that the respondent

be removed from the United States to Chile on the

grounds and on the charges contained in the Notice

to Appear.

s/Irma Lopez-Defillo

IRMA LOPEZ-DEFILLO

App. 15

CONSTITUTIONAL AND STATUTORY

PROVISIONS

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

ee

Before its repeal in 1996, Section 1182(c) of Title

8 of the United States Code (repealed 1996) provided

as follows:

Nonapplicability of subsection (a).—

Aliens 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, may be admitted in the

discretion of the Attorney General without

regard to the provisions of subsection (a) of

this section (other than paragraphs (3) and

(9)(C)). Nothing contained in this subsection

shall limit the authority of the Attorney

General to exercise the discretion vested in

him under section 1181(b) of this title. The

first sentence of this subsection shall not

apply 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.

App. 16

Section 1182(a) in relevant part of Title 8 of the

United States Code provides:

Inadmissible aliens.—

(a) Classes of aliens ineligible for visas or

admission.— Except as otherwise provided

in this chapter, aliens who are inadmissible

under the following paragraphs are

ineligible to receive visas and ineligible to

be admitted to the United States:

KK

(2) Criminal and related grounds

(A) Conviction of certain crimes (B) to

afford adequate deterrence to criminal

conduct;

(i) In general.— Except as provided in

clause (ii), any alien convicted of, or

who admits having committed, or who

admits committing acts which

constitute the essential elements of

(I) a crime involving moral turpitude

(other than a purely political offense)

or an attempt or conspiracy to

commit such a crime, or

(il) a violation of (or a conspiracy or

attempt to violate) any law or

regulation of a State, the United

States, or a foreign country relating

to a controlled substance (as defined

in section 802 of Title 21),

is inadmissible.

App. 17

(ii) Exception— Clause (i)(I) shall not

apply to an alien who committed only

one crime if—

(I) the crime was committed when the

alien was under 18 years of age, and

the crime was committed (and the

alien released from any confinement to

a prison or correctional institution

imposed for the crime) more than 5

years before the date of the application

for a visa or other documentation and

the date of the application for the

admission to the United States, or

(I) the maximum penalty possible for

the crime of which the alien was

convicted (of which the alien admits

having committed or of which the acts

that the alien admits _ having

committed constituted the essential

elements) did not exceed imprisonment

for one year and, if the alien was

convicted of such crime, the alien was

not sentence to a term of imprisonment

in excess of 6 months (regardless of the

extent to which the sentence was

ultimately executed).

Section 1227(a) in relevant part of Title 8 of

United States Code provides:

(a) Deportable aliens.— Any alien

(including an alien crewman) in and

admitted to the United States shall, upon the

order of the Attorney General, be removed if

the

App. 18

the alien is within one or more of the

following classes of deportable aliens:

* k

(2) Criminal offenses

(A) General crimes

(i) Crimes of moral turpitude.— Any

alien who—-

(I) is convicted of a crime involving

moral turpitude committed within five

years (or 10 years in the case of an

alien provided lawful permanent

resident status under section 1255) of

this title) after the date of admission,

and

(II) is convicted of a crime for which a

sentence of one year or longer may be

imposed,

is deportable.

(ii) Multiple criminal convictions.— Any

alien who at any time after admission is

convicted of two or more. crimes

involving moral turpitude, not arising

out of a single scheme of criminal

misconduct, regardless of whether

confined therefor and regardless of

whether the convictions were in a single

trial, is deportable.

(iii) Aggravated felony.— Any alien who

is convicted of an aggravated felony at

any time after admission is deportable.

App. 19

(iv) High speed flight.— Any alien who

is convicted of a violation of section 758

of Title 18, (relating to high speed flight

from an immigration checkpoint) is

deportable.

(v) Failure to register as a sex

offender.— Any alien who is convicted

under section 2250 of Title 18, is

deportable.

(vi) Waiver authorized. Clauses (i),

(ii), (ii), and (iv) shall not apply in the

case of an alien with respect to a

criminal conviction if the _ alien

subsequent to the criminal conviction

has been’ granted aé_ée full = and

unconditional pardon by the President of

the United States or by the Governor of

any of the several States.

Section 1212.3(f)(5) of Title 8 of the Code of

Federal Regulations provides:

(f) Limitations on discretion to grant an

application under section 212(c) of the

{Immigration and Naturalization] Act.—

An application for relief under former section

212(c) of the Act shall be denied if:

ORS

(5) The alien is deportable under former

section 241 of the Act or removable under

section 237 of the Act on a ground which

does not have a statutory counterpart in

section 212 of the Act.