Opposition Brief — Gonzalez-Mesias v. Holder (No. 08-605)

Ju the Supreme Court of the Gnited States

ROBINSON WLADIMIR GONZALEZ-MESIAS,

PETITIONER

Vv.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

EDWIN S. KNEEDLER

Acting Solicitor General

Counsel of Record

MICHAEL F.. HERTZ

Acting Assistant Attorney

General

DONALD E. KEENER

ALISON R. DRUCKER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the denial of relief from removal under for-

mer Section 212(c) of the Immigration and Nationality

Act (INA), 8 U.S.C. 1182(c) (1994) (repealed 1996), vio-

lates the equal protection component of the Due Process

Clause, where an alien who is removable because he

committed specific aggravated felonies is not being

treated differently from other aliens who are similarly

removable on grou ids that have no statutory counter-

part in the INA’s grounds for inadmissibility.

TABLE OF CONTENTS

Page

OD oi id inlaw dae he Aco les Wer ae eRe wie ]

Jurisdiction

Statement

Conclusion

TABLE OF AUTHORITIES

Cases:

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

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

Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) .

Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004)

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

Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007) 4,6, 7,10

Blake, In re, 23 1. & N. Dee. 722 (B.1.A. 2005) 3, 4, 15

Brieva-Perez, In re, 23 1. & N. Dec. 766 (B.I.A. 205) ... 3,4

Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988)

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

Cato v. INS, 84 F.3d 597 (2d Cir. 1996)

Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st Cir.

Falaniko v. Mukasey, 272 Fed. Appx. 742 (10th Cir.

2008)

Cases—continued:

Fiallo v. Bell, 480 U.S. 787 (1977)

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

Gjona) v. INS, 47 F.3d 824 (6th Cir. 1995)

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

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

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

Komarenko v. INS, 35 F.3d 432 (9th Cir. 1994) ... 4,12, 14

Koussan v. Holder, No. 07-4107, 2009 WL 330999

(6th Cir. Feb. 12, 2009)

Leal-Rodriguez v. INS, 990 F.2d 939 (7th Cir. 1993) . 12,13

Meza, ln re, 20 1. & N. Dec. 257 (B.1.A. 1991)

Oceanic Steam Navigation Co. v. Stranahan,

214 U.S. 320 (1909)

Rodriguez v. INS, 9 F.3d 408 (5th Cir. 1993)

Rubio v. United States Att’y Gen., 182 Fed. Appx. 925

(11th Cir. 2006)

Silva, In re, 161. & N. Dec. 26 (B.1.A. 1976)

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

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

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

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

Zamora-Mallari v. Mukasy, 514 F.8d 679 (7th Cir.

2008)

Statutes and regulation:

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1277 .... 2

Statutes and regulation—Continued:

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208

Div. C, Tit. III, $ 304(b), 110 Stat. 3009-597

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

1101 e¢ seq.:

eS 5, 14

8 U.S.C. 1101(a)(48)(F)

8 U.S.C. 1182

5 US.C. 11S2(a) (§ 212(@)) ..... 2... eee 5, 13, 15

& U.S.C. 1182(a)(2)(a)G)(D) (§ 212(a)(2)(a)@(D) . 11, 14

8 U.S.C. 1182(a)(23)(A) (1988) (§ 212(a)(23)(A)) ... 15

8 U.S.C. 1182(e) (1994) (§ 212(e)) passim.

8 U.S.C.

8 U.S.C. 1227(a)(2)(A)(iii) (§ 237(a)(2)(A (iii)

8 U.S.C. 1227(a)(2)(C)

Virginia Code:

§ 18.2-67.1

Ad Gs Wins soe a's secs oven cece x v0

8 C.F.R. 1212.3(f)(5)

Jn the Supreme Court of the Anited States

No. 08-608

ROBINSON WLADIMIR GONZALEZ-MESIAS,

PETITIONER

Vv.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1-6) is

reported at 529 F.3d 62. The orders of the Board of Im-

migration Appeals (Pet. App. 7-8) and the immigration

judge (Pet. App. 9-14) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 18, 2008. On September 3, 2008, Justice Souter

extended the time within which to file a petition for a

writ of certiorari to and including October 31, 2008, and

the petition was filed on that date. The jurisdiction of

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

(1)

2

STATEMENT

1. 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 “be admitted” to the United States after

“temporarily proceed[ing] abroad voluntarily”). In 1976,

however, the Second Circuit 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-

gration Appeals (Board) adopted that rationale on a na-

tionwide basis in /7 re Silva, 16 1. & N. Dec. 26 (B.I1.A.

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

being available in both deportation and exclusion pro-

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

In applying the principle of treating those in depor-

tation proceedings like those in exclusion proceedings,

the Board has long maintained that an alien in deporta-

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

the ground for his deportation has a comparable ground

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

re Wadud, 19 I. & N. Dec. 182 (B.I.A. 1984); Jn re

Granados, 161. & N. Dec. 726 (B.1.A. 1979). That prac-

tice is known as the “comparable ground” or “statutory

counterpart” test, and it has been codified by regulation

at 8 C.F.R. 1212.3(f)(5).

In 1996, in the Antiterrorism and Effective Death

Penalty Act of 1996 (AE DPA), Pub. L. No. 104-132,

§ 440(d), 110 Stat. 1277, Congress amended Section

3

212(¢) to make ineligible for discretionary relief any

alien previously convicted of certain offenses, including

aggravated felonies. Later in 1996, in the [legal Immi-

gration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), Pub. L. No. 104-208, Div. C, Tit. III,

§ 304(b), 110 Stat. 3009-597, Congress repealed Section

212(c) in its entirety. IIRIRA also did away with “de-

portation” and “exclusion” proceedings, substituting

“removal.”

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

principles of non-retroactivity, that IIRIRA’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 the

alien would still have been eligible for Section 212(c)

relief in spite of the resulting conviction. 533 U.S. at

314-326. Although some aliens necessarily benefitted

from the conclusion that Section 212(c)’s repeal was not

retroactively applicable, the Court did not suggest that

they would not still be subject to any pre-existing limita-

tions on their eligibility for relief under Section 212(c),

including the “statutory counterpart” test.

As relevant to the circumstances of this case, the

operation of that test was further clarified by the Board

in /n re Blake, 23 1. & N. Dec. 722 (B.1.A. 2005), and In

re Brieva-Perez, 23 Il. & N. Dec. 766 (B.I.A. 2005).

Those cases held that a ground of exclusion is only a

“comparable ground” to the charged ground of deporta-

tion if they both use similar language to describe “sub-

stantially equivalent categories of offenses.” /d. at 771;

In re Blake, 23 1. & N. Dee. at 728. In /n re Blake, the

Board held that the “crime involving mora] turpitude”

ground of inadmissibility was not comparable to the

ground of removal for having an aggravated felony con-

4

viction for sexual abuse of a minor (one of the two

charges present in the instant case). /d. at 729. In In re

Brieva-Perez, the Board similarly held that the “crime

involving moral turpitude” ground of inadmissibility was

not comparable to the ground of removal of having an

aggravated felony conviction for a crime of violence (the

other charge present in the instant case). 23 1. & N.

Dec. at 773. Well before the Board published those pre-

cedent decisions, however, the analytical underpinnings

of its interpretation were confirmed by, among others,

the Ninth Circuit’s decision in Komarenko v. INS, 35

F.3d 432 (1994).

In 2007, the Second Circuit disagreed with Koma-

renko and the “several other circuits” that had followed

it. Blake v. Carbone, 489 F.3d 88, 103-104. Although the

Second Circuit recognized that the statutory-counter-

part test codified in 8 C.F.R. 1212.3(f)(5) did “nothing

more than crystallize the agency’s preexisting body of

law and therefore [could not] have an impermissible ret-

roactive effect,” it held that, when analyzed on the basis

of a “particular criminal offense[],” the ground of inad-

missibility for a “crime involving moral turpitude” was

sufficiently comparable to an aggravated felony of sex-

ual abuse of a minor to permit retroactive relief under

former Section 212(c). Blake, 489 F.3d at 98-99, 103.

2. Petitioner is a native and citizen of Chile. Pet.

App. 2. He was admitted to the United States as a visi-

tor and became a lawful permanent resident in 1979.

bid. In 1985, after pleading guilty and no-contest, peti-

tioner was convicted of one count of aggravated sexual

battery (in violation of Va. Code § 18.2-67.3), and one

count of sodomy (in violation of Va. Code § 18.2-67.1).

Pet. App. 2-3. Those convictions were for engaging in

cunnilingus with a 13-year-old girl “against her will by

~

o

force, threat and intimidation.” /d. at 11. Petitioner

was sentenced to coneurrent ten-year terms of imprison-

ment on each charge, but the court suspended nine

years and 335 days of each sentence. /d. at 3.

In 2005, petitioner was placed in removal proceed-

ings on charges of being deportable under Section

237(a)(2)(A)(iii) of the INA, 8 U.S.C. 1227(a)(2)(A)(ill),

on account of having been convicted of an aggrevated

felony as defined in 8 U.S.C. 1101(a)(43)(A) (“sexual

abuse of a minor”) and of having been convicted of an

aggravated felony as defined in 8 U.S.C. 1101(a)(48)(F)

(“crime of violence”). Pet. App. 3. An immigration

judge found him removable on both of those charged

grounds. /d. at 10-11.' The immigration judge ordered

petitioner removed and pretermitted his application for

Section 212(c) relief, holding that he was ineligible for

that relief because his two grounds of deportability did

not have any statutory counterpart in the grounds of

inadmissibility contained in Section 212(a) of the INA, 8

U.S.C. 1182(a). Pet. App. 12-13 (citing the Board’s deci-

sions in In re Blake and Jn re Brieva-Perez).

On August 2, 2007, the Board dismissed petitioner’s

appeal from the immigration judge’s decision. Pet. App.

8. The Board reiterated its conclusion that discretion-

ary relief under Section 212(c) is available only where a

ground of deportability has “a comparable ground of

inadmissibility.” /bid. The Board explained that its

decisions in /n re Blake and /n re Brieva-Perez had not

represented any change in the law but rather were an

In the administrative record, the decisions of the Board and of the

immigration judge both listed the charges against petitioner between

the caption and the beginning of the decision. Those portions of the

decisions are not included in the versions of the documents reprinted in

the petition appendix. See Pet. App. 7, 9

6

extension of a “long line of [prior] cases,” and it declined

to follow the Second Circuit’s decision in Blake v.

Carbone, supra, outside of the Second Circuit. Jbid.

Petitioner sought review of the Board’s decision in the

court of appeals. /d. at 2.

3. The court of appeals denied petitioner’s petition

for review. Pet. App. 1-6. It observed that, in the ab-

sence of an intervening event, it was bound by its prece-

dent in Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st

Cir. 2007), and Kim v. Gonzales, 468 F.3d 58 (1st Cir.

2006). Pet. App. 5. In those two cases, the court re-

jected the same arguments presented here, including

the argument that the Board’s interpretation is inconsis-

tent with this Court’s reasoning in St. Cyr. /d. at 6. The

court noted that no other court of appeals has agreed

with the Second Circuit’s decision in Blake, whereas the

Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Cir-

cuits have each upheld the Board’s statutory-counter-

part test. Pet. App. 5 (citing 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 v. Gonzales, 493 F.3d 1092 (9th Cir.

2007), vacated, 514 F.3d 909 (9th Cir. 2008);° Falaniko

v. Mukasey, 272 Fed. Appx. 742 (10th Cir. 2008); Rubio

v. United States Att'y Gen., 182 Fed. Appx. 925 (11th

Cir. Z006)).

The court of appeals added that, even apart from its

prior case law, it did not find petitioner’s arguments

“convincing,” Pet. App. 5, and that, “[t]o the extent [pe-

titioner] is making independent constitutional argu-

* As discussed below (see pp. 8-9, ira), after the court of appeals’

decision (and the petition for a writ of certiorari) in this case, the Ninth

Circuit issued an en bane decision in Abebe, and a petition for further

rehearing of that decision remains pending before the Ninth Circuit.

7

ments, they are without merit,” zd. at 6. The court ob-

served that the Board’s decisions in Jn re Blake and In

re Brieva-Perez were “not inconsistent with” prior

Board precedent and had not been applied arbitrarily or

capriciously to petitioner. /bid. It also held that there

was no equal protection violation here because petitioner

“was treated the same as similarly situated aliens.”

lbid. (citing Dalombo Fontes, 483 F.3d at 123, and Kzm,

468 F.3d at 62).

ARGUMENT

Petitioner describes (Pet. 16-26) a split in the courts

of appeals about an issue that he claims (Pet. 26-32) is of

substantial importance because it results in differential

treatment among aliens in immigration proceedings. He

implicitly agrees (Pet. 16-18) with the Second Circuit’s

conclusion in Blake v. Carbone, 489 F.3d 88, 103-104

(2007), that it violates an alien’s equal protection rights

to look to the charged grounds for his deportation,

rather than the circumstances of the underlying of-

fenses, when determining whether the grounds of re-

moval are sufficiently comparable to a ground of inad-

missibility.’ The court of appeals reached the correct

result. The issue concerns a statutc y section repealed

more than 12 years ago, and every court of appeals to

have addressed the question (except the Second Circuit)

would deny petitioner relief. No further review is war-

ranted.

1. As petitioner acknowledges (Pet. 21-24), the

First, Third, Fifth, Seventh, and Fighth Circuits have

concluded in published opinions that the Board’s appli-

* A similar question is presented by the petition for a writ of

certiorari in Birkett v. Holder, No. 08-6816, petition for cert. pending

(filed Apr. 1, 2008).

8

cation of the statutory-counterpart test does not violate

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

58, 62-63 (lst Cir. 2006); Caroleo v. Gonzales, 176 F.3d

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

371-372 (5th Cir. 2007); Zamora-Mallari v. Mukasy, 514

F.3d 679, 691-692 (7th Cir. 2008); Vue v. Gonzales, 496

F.3d 858, 860-862 (8th Cir. 2007).* After the petition for

a writ of certiorari was filed, the Sixth Circuit added

itself to that list by clearly upholding the constitutional-

ity of the Board’s statutory-counterpart test. See Kous-

san Vv. Holder, No. 07-4107, 2009 WL 330999, at *8-*10

(Feb. 12, 2009).

Petitioner also discusses (Pet. 18-21) the Ninth Cir-

cuit’s decision in Abebe v. Gonzales, 493 F.3d 1092

(2007), vacated, 514 F.3d 909 (2008), which held that the

statutory-counterpart test did not violate equal protec-

tion, but which was then vacated when the case was

reheard by the court en bane. After the petition for a

writ of certiorari in the instant case was filed, the en

banc Ninth Circuit in Abebe issued its decision, holding

that neither the Constitution nor this Court’s decision in

St. Cyr requires the government to make aliens in de-

portation proceedings eligible for the same form of dis-

cretionary relief under former Section 212(c) that is

available to aliens in exclusion proceedings. Abebe v.

* See Falaniko v. Mukasey, 272 Fed. Appx. 742, 746-749 (10th Cir.

2008) (unpublished decision “agree[ing] with the First, Third, Fifth,

Seventh, Eighth, and Ninth Circuits that the statutorily prescribed

basis of removal should be compared to the statutory grounds of inad-

missibility for purposes of statutory counterpart analysis”); /2ubzo v.

United States Att'y Gen., 182 Fed. Appx. 925, 929 (11th Cir. 2006)

(unpublished decision holding that the Board’s application of the

statutory-counterpart test is a “a reasonable interpretation of the

relevant INA provisions” and does not conflict with St. Cyr).

9

Mukasey, 554 F.3d 1208, 1205-1207 (2009). The court

thus rejected the antecedent principle driving peti-

tioner’s argument and the Second Circuit’s decision in

Blake.

The Ninth Circuit also stated, however, that its deci-

sion did not “cast{] any doubt on the regulation” that

codifies the Board’s statutory-counterpart test, while

observing that its decision “might cause the government

to reconsider the regulation, and eventually repeal it

as no longer necessary.” Abebe, 554 F.3d at 1207. A

concurring opinion on behalf of three judges would have

reaffirmed the Ninth Circuit’s earlier decision in

Komarenko, see id. at 1208-1213 (Clifton, J., coneur-

ring)—an approach under which petitioner in this case

would also lose. Only Judge Thomas’s dissenting opin-

ion (joined by Judge Pregerson) would have followed

petitioner’s invitation to side with the Second Circuit’s

decision in Blake. Id. at 1217-1218. A petition for re-

hearing of the en banc decision in Abebe remains pend-

ing before the Ninth Circuit. At the court’s request, the

government filed a response to the rehearing petition

(opposing further rehearing) on February 25, 2009.

Regardless of whatever else the Ninth Circuit does

in Abebe, its recent en banc decision, by introducing an

additional] rationale (not advanced by the government),

which could affect any further consideration that other

courts of appeals give to the constitutional question or

the Board’s future applications of the statutory-counter-

part test, has already refuted petitioner’s claim (Pet. 26)

that the issue on which he seeks this Court’s review “has

fully percolated.” Other factors also make further re-

view inappropriate at this time. The split within the

circuits is heavily lopsided. And petitioner’s question

concerns an alien’s eligibility for a form of discretionary

10

relief under a statute that was repealed more than 12

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 JNS v. St. Cyr, 533 U.S. 289, 325

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

tioner objects is not new, see Blake, 489 F.3d at 98-99—

indeed, it long predates the repeal of Section 212(c) in

1996, see p. 2, supra—and petitioner could easily have

avoided its effects by departing the country voluntarily

at any point before his removal proceedings were initi-

ated in 2005.

In contending that this case presents an issue of ex-

ceptional importance, petitioner cites (Pet. 27) statistics

estimating the number of non-citizens ordered deported

“based on crimes categorized as ‘aggravated felonies’”

over a 15-year period. He also cites (Pet. 27 n.6) data

pertaining to the number of lawfui permanent residents

“deported for criminal convictions” over a 10-year pe-

riod. The number of aliens that could be affected by the

outcome of this case, however, is necessarily a great deal

smaller, because an alien would not become eligible for

discretionary relief unless he or she met each of the fol-

lowing criteria: (1) lawful-permanent-resident status;

(2) a conviction predating the repeal of Section 212(c);

(3) a plea of guilty or no contest; (4) a removal charge

flowing from an aggravated-felony conviction; and (5) a

removal charge that has no comparable ground of inad-

missibility.

2. Even under the view that aliens in removal pro-

ceedings are not barred outright from discretionary re-

lief under former Section 212(c), the court of appeals

reached the correct result in the instant case.

11

Petitioner essentially argues as follows: If he had

left the United States and attempted to return, his ag-

gravated sexual battery conviction would have subjected

him to removal based on a charge of inadmissibility for

having committed “a crime involving moral turpitude”

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

1182(a)(2)(A)(i)(1), which would have rendered him eligi-

ble for Section 212(c) relief. Because he is within the

United States and subject to removal based on charges

of having committed aggravated felonies of sexual abuse

of a minor and a crime of violence—both grounds that

the Board holds are not comparable to the inadmissibil-

ity ground of having committed a crime involving moral

turpitude—he is ineligible for Section 212(c) relief.

Therefore, he asserts, his equal protection rights have

been violated. That argument fails.

As this Court has repeatedly stated: “over no con-

ceivable 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.

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 -ategories 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

12

who are inadmissible are not similarly situated with

aliens subject to removal on grounds of being deport-

able, even though there is some overlap between the

conduct that renders an alien inadmissible and the con-

duct that renders an alien deportable. It is only where

a ground that renders an alien deportable under the one

regime has a statutory counterpart that renders an alien

inadmissible under the other regime that the two aliens

could be said to be similarly situated for equal protec-

tion purposes.

The reasoning employed in Komarenko v. INS, 35

F.3d 432 (9th Cir. 1994), which has since been endorsed

by most of the other courts of appeals, is persuasive. In

Komarenko, the court rejected a similar equal protec-

tion claim in finding that two groups of aliens convicted

of different crimes were not similarly situated for pur-

poses of eligibility for Section 212(c) relief. Jd. at 435.

The court concluded that the “linchpin of the equal pro-

tection analysis in this context is that the two provisions

be ‘substantially identical.’” /bid.; see Leal-Rodriguez

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

claimed 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 435. The court, however, refused “to speculate

whether the I.N.S. would have applied this broad

excludability 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.’” /bid. Such an ap-

proach would be tantamount to “judicial legislating,”

would “vastly overstep” the courts’ “‘limited scope of

13

judicial inquiry into immigration legislation,’” and

“would interfere with the broad enforcement powers

Congress has delegated to the Attorney General.” /bid.

(quoting Fallo, 430 U.S. at 792). Accordingly, the court

“decline[d] to adopt a factual approach to * * * equal

protection 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, it is only when the ground for a deportable

alien’s removal from the country has a statutory coun-

terpart in the grounds for inadmissibility that a deport-

able alien is arguably similarly situated to inadmissibie

aliens. See Komarenko, 35 F.3d at 435. The Seventh

Circuit explained this point in Leal-Rodriguez, supra:

[C]Jertain 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 ren-

der them deportable—a situation not necessarily

true for all aliens facing deportations. Accordingly,

section 212(c) relief was not extended to aliens whose

deportability was based on a ground for which a com-

parable ground of exclusion did not exist.

990 F.2d at 949. The court then proceeded to find that

an alien deportable for entering the United States with-

out inspection was not eligible for Section 212(c) relief

because there was no corresponding ground of inadmis-

sibility to the deportation charge. /d. at 950.

* The same rationale applies equally to 8 C.F.R. 1212.3(f)(5), which

later codified the agency’s longstanding practice of applying the statu-

tory-counterpart LtesL.

14

Similarly, in this case, petitioner’s argument fails

because his grounds of deportation for being convicted

of the aggravated felonies of sexual abuse of a minor and

a crime of violence are not “substantially equivalent” or

“substantially identical” to a ground of inadmissibility

under Section 212(a) of the INA. Komarenko, 35 F.3d

at 435. As the Board correctly reasoned in Jn re Blake

and Jn re Brieva-Perez, respectively, neither sexual

abuse of a minor under 8 U.S.C. 1101(a)(43)(A) nor a

crime of violence under 8 U.S.C. 1101(a)(43)(F) has a

statutory counterpart in Section 212(a)’s grounds of in-

admissibility. Although sexual abuse of a minor or a

crime of violence may constitute “a crime involving

moral turpitude” under Section 212(a)(2)(A)(i)(1) of the

INA, 8 U.S.C. 1182(a)(2)(A)(i)(D), the latter addresses a

distinctly different and much broader category of of-

fenses than a charge for an aggravated felony of sexual

abuse of a minor or for an aggravated felony of a crime

of violence. 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 decisions, that

test is not met merely by showing that some or many of

the offenses included in the charged category could also

be crimes involving moral turpitude. See, e.g., Zamora-

Mallari, 514 F.3d at 693 (holding that the aggravated

felony of sexual abuse of a minor has no statutory coun-

terpart); Avtlez-Granados v. Gonzales, 481 F.3d 869,

871-872 (5th Cir. 2007) (same).° That analysis is firmly

" By contrast, the Board found in /” re Meza, 20 1. & N. Dec. 257

(B.L.A. 1991), that the deportability ground for a drug-trafficking-

related aggravated felony did have a statutory counterpart at former

Section 212(a)(23)(A) of the INA, which referred to convictions for

15

supported by the unanimous opinions of the courts of

appeals holding that a firearms offense (which is a

ground of removability 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 turpitude.” /n re Blake, 23 1. & N. Dec. 772, 728

(B.I.A. 2005)."

Thus, because petitioner is not similarly situated to

inadmissible aliens who have been convicted of crimes

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-

sponding ground of inadmissibility, his equal protection

claim fails.

“violation of, or conspiracy to violate, any law or regulation * * *

relating to a controlled substance.” 8 U.S.C. 1182(a)(23)(A) (1988).

Both provisions addressed similar categories of offenses involving illicit

trafficking in drugs.

" See, e.g., Adefemi v. Ashcroft, 386 F.3d 1022, 1031 (11th Cir. 2004)

(firearms offender ineligible for Section 212(c) relief); Cato v. 7N'S, 84

F.3d 597, 599 (2d Cir. 1996) (same); Gjonaj v. 1NS, 47 F.3d 824 (6th Cir.

1995) (same); Rodriquez v. INS, 9 F.3d 408 (5th Cir. 1993) (same);

Campos v. INS, 961 F.2d 309 (1st Cir. 1992) (same); Cabasug v. INS,

847 F.2d 1321 (9th Cir. 1988) (same).

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

EDWIN S. KNEEDLER

Acting Solicitor General

MICHAEL F.. HERTZ

Acting Assistant Attorney

General

DONALD E. KEENER

ALISON R. DRUCKER

Attorneys

MARCH 2009