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No. 09-600

 

In the Supreme Court of the United States

YEWHALASHET ABEBE, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
DONALD E. KEENER
SAUL GREENSTEIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(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relief from removal under for mer Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(c) (1994) (repealed 1996), vio lates the equal protection component of the Due Process Clause, when an alien who is removable because he com mitted a specific aggravated felony is not being treated differently from other aliens who are similarly remov able on grounds that have no statutory counterpart in the INA's grounds for inadmissibility.

In the Supreme Court of the United States

No. 09-600

YEWHALASHET ABEBE, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

 

OPINIONS BELOW

The en banc decision of the court of appeals (Pet. App. 1-36), as amended, is reported at 554 F.3d 1203. The prior, now vacated, panel decision of the court of appeals (Pet. App. 37-78) is reported at 493 F.3d 1092. A contemporaneous, also vacated, panel decision re manding the case to the Board of Immigration Appeals for reconsideration of petitioner's application for with holding of removal (Pet. App. 79-80) is not published in the Federal Reporter but is reprinted in 240 Fed. Appx. 198. The order of the court of appeals denying a petition for rehearing (Pet. App. 92-113), is reported at 577 F.3d 1113. The orders of the Board of Immigration Appeals (Pet. App. 81-84) and the immigration judge (Pet. App. 85-91) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on January 5, 2009. A petition for rehearing was denied on August 18, 2009 (Pet. App. 92). The petition for a writ of certiorari was filed on November 16, 2009. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

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 Former Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(c) (1994) (repealed 1996), authorized some permanent resident aliens domi ciled in the United States for seven consecutive years to apply for discretionary relief from exclusion.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 (i.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, 532 F.2d 268, 273. The Board of Immi gration Appeals (Board) adopted that rationale on a na tionwide basis in In re Silva, 16 I. & N. Dec. 26 (B.I.A. 1976), so that Section 212(c) was generally construed as being available in both deportation and exclusion pro ceedings. See INS 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., In re Wadud, 19 I. & N. Dec. 182 (B.I.A. 1984); In re Gra nados, 16 I. & N. Dec. 726 (B.I.A. 1979). That practice is known as the "comparable ground" or "statutory coun terpart" test, and it has been codified by regulation at 8 C.F.R. 1212.3(f)(5).1

In 1996, in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1277, Congress amended Section 212(c) to make ineligible for discretionary relief aliens previously con victed of certain offenses, including aggravated felonies. Later in 1996, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, § 304(b), 110 Stat. 3009-597, Con gress repealed Section 212(c) in its entirety. IIRIRA also did away with the distinction between "deportation" and "exclusion" proceedings, designating them both as "removal" proceedings. See §§ 303-306, 110 Stat. 3009- 585.

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 he might have relied on his possible eligibility 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 aliens would not still be subject to any pre-existing limi tations 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 of Immigration Appeals in In re Blake, 23 I. & N. Dec. 722 (2005), remanded, 489 F.3d 88 (2d Cir. 2007), and In re Brieva-Perez, 23 I. & N. Dec. 766 (2005), petition for review denied, 482 F.3d 356 (5th Cir. 2007). Those cases held that a statutory ground of exclusion or inadmissibil ity is a "comparable ground[]" to the charged ground of deportation only if the two grounds use similar language to describe "substantially equivalent categories of of fenses." Id. at 771; In re Blake, 23 I. & N. Dec. at 728. In In re Blake, the Board held that the "crime involving moral turpitude" ground of inadmissibility was not com parable to the ground of removal of having an aggra vated felony conviction for sexual abuse of a minor. Id. 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 re moval of having an aggravated felony conviction for a crime of violence. 23 I. & N. Dec. at 773. Well before the Board published those precedential decisions, how ever, the analytical underpinnings of its interpretation had been confirmed by, among others, the Ninth Cir cuit's decision in Komarenko v. INS, 35 F.3d 432 (1994).

In 2007, the Second Circuit disagreed with Komar enko and the "several other circuits" that had followed it. Blake v. Carbone, 489 F.3d 88, 103-104. The Second Circuit recognized that the statutory-counterpart test codified in 8 C.F.R. 1212.3(f)(5) did "nothing more than crystallize the agency's preexisting body of law and therefore [could not] have an impermissible retroactive effect"; but the Second Circuit held that, when analyzed on the basis of a "particular criminal offense[]," the ground of inadmissibility for a "crime involving moral turpitude" was sufficiently comparable to an aggravated felony of sexual abuse of a minor to permit relief under former Section 212(c). Blake, 489 F.3d at 98-99, 101, 103.

2. Petitioner is a native and citizen of Ethiopia who was accorded lawful permanent resident status in 1984. Pet. App. 2. In 1992, petitioner pleaded guilty to two counts of lewd and lascivious conduct upon a child under the age of 14, in violation of California law. Id. at 2, 82, 86-87. Based on his conviction, petitioner was placed in removal proceedings in 2005, and an immigration judge ruled that petitioner was subject to removal under 8 U.S.C. 1227(a)(2)(A)(iii) as an alien who has been con victed of an aggravated felony (specifically, "sexual abuse of a minor," 8 U.S.C. 1101(a)(43)(A)). Pet. App. 86. The immigration judge also denied petitioner's ap plication for relief under former Section 212(c), and or dered him removed to Ethiopia. Id. at 82, 86.

On June 10, 2008, the Board dismissed petitioner's appeal. It agreed with the immigration judge that, pur suant to the Board's reasoning in In re Blake, petitioner was statutorily ineligible for relief under former Section 212(c), because the charge of deportability on the basis of a conviction for sexual abuse of a minor has no statu tory counterpart among the grounds of inadmissibility. Pet. App. 81-82. The Board expressly observed that "former [S]ection 212(c) * * * did not pardon or waive crimes, per se, it waived grounds of inadmissibility, some of which arose from crimes." Id. at 82-83; accord In re Balderas, 20 I. & N. Dec. 389, 391 (B.I.A. 1991) (explaining that "a grant of [S]ection 212(c) relief 'waives' the finding of excludability or deportability rather than the basis of the excludability itself [i.e., the criminal offense]"). Thus, "it is not enough that the alien's particular offense could have constituted a valid factual predicate for a charge of inadmissibility." Pet. App. 83. Rather, "the applicant for [S]ection 212(c) re lief must demonstrate with respect to the ground of deportability at issue in his case that Congress has em ployed similar language to describe substantially equiva lent categories of offenses in the grounds of inadmissibil ity." Ibid.

3. Petitioner sought judicial review of the Board's decision, and a panel of the Ninth Circuit denied his pe tition with respect to his application for relief under for mer Section 212(c). Pet. App. 37-78. The court accepted the Board's decision in In re Blake, concluding that its statutory-counterpart test is consistent with the statute, with 8 C.F.R. 1212.3(f), and with "past administrative and judicial interpretations of the statute," Pet. App. 55- 56, 56-58, 62; that the test does not result in an equal protection violation, id. at 62-65; and that it does not present any "retroactivity problem" because "[s]ince at least the 1970s an alien in [petitioner's] position would not have had any reasonable expectation of § 212(c) re lief," id. at 66.

4. The court of appeals granted rehearing en banc, and, on January 5, 2009, denied in part and dismissed in part, petitioner's petition for review of the Board's deci sion. Pet. App. 1-36. Although the majority of the en banc court reached the same result as the original panel, its reasoning differed from that of the panel and from that advanced by the government. The court reexam ined previous cases requiring that Section 212(c) eligibil ity be extended to certain classes of deportable aliens notwithstanding Section 212(c)'s reference only to aliens seeking to "be admitted." In particular, the court "re consider[ed]" circuit precedent that had "reasoned that there is no rational basis for granting additional immi gration relief to aliens who temporarily leave the United States and try to reenter (i.e., aliens facing inadmissibil ity), and not to aliens who remain in the United States (i.e., aliens facing deportation)," id. at 5 (citing Tapia- Acuna v. INS, 640 F.2d 223, 225 (9th Cir. 1981)), as well as the Second Circuit's similar decision in Francis, supra. Finding that the "plain language" of former Sec tion 212(c) "gives the Attorney General discretion to grant lawful permanent residents relief only from inad missibility-not deportation," Pet. App. 4, the court concluded that it was "not convinced that Francis and Tapia-Acuna accorded sufficient deference to this com plex legislative scheme." Id. at 5.

Applying rational-basis review to Congress's appar ent decision to accord excludable but not deportable aliens the right to seek Section 212(c) relief, the court of appeals observed that "Congress could have limited [S]ection 212(c) relief to aliens seeking to enter the country from abroad in order to 'create[] an incentive for deportable aliens to leave the country.'" Pet. App. 6 (quoting Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 309 (5th Cir. 1999), and LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998), cert. denied, 528 U.S. 1153 (2000)). The court further explained:

A deportable alien who wishes to obtain [S]ection 212(c) relief will know that he can't obtain such relief so long as he remains in the United States; if he de parts the United States, however, he could become eligible for such relief. By encouraging such self- deportation, the government could save resources it would otherwise devote to arresting and deporting these aliens[,] * * * [which] is certainly a legiti mate congressional objective.

Id. at 6-7 (internal citations omitted). The court ex plained that, although the government might later choose to admit an alien who had thus departed, "[t]he rationality of the statute lies in giving that discretion, on a case by case basis, to an agency that can assess the likelihood of the alien's success and the cost of his re moval." Id. at 7. For those aliens who apply for and do not receive Section 212(c) relief, "it makes perfect sense to want them to be outside our borders when they get the bad news." Id. at 8. Accordingly, the court "over rule[d] Tapia-Acuna's holding that there's no rational basis for providing [S]ection 212(c) relief from inadmis sibility, but not deportation," and it held that the Board "didn't violate petitioner's right to equal protection by finding him ineligible for [S]ection 212(c) relief from de portation." Id. at 9. Although petitioner had sought reconsideration of whether the court's earlier decision in Komarenko had appropriately limited Tapia-Acuna to instances in which the ground for an alien's deporta tion has a statutory counterpart in a ground for inadmis sibility, the court concluded that it was unnecessary to decide Komarenko's continuing constitutional validity because "its only purpose was to fill a gap created by Tapia-Acuna." Ibid.

Finally, the court of appeals left intact the Board's statutory-counterpart rule by expressly acknowledging the continuing legitimacy of 8 C.F.R. 1212.3(f)(5). Pet. App. 8-9. It stated: "nothing we say today casts any doubt on the regulation," id. at 9, which would thus al low an otherwise-qualified deportable permanent resi dent alien in the Ninth Circuit to apply for Section 212(c) relief when there is a comparable ground of inad missibility.

Judge Clifton concurred, in an opinion joined by Judges Silverman and Gould. Pet. App. 11-23. They agreed with the original panel decision and its reliance on Komarenko, because they concluded that "aliens who could have been, but were not, charged with removal on grounds equivalent to a ground for inadmissibility are not similarly situated to aliens who were actually so charged." Id. at 12. The concurring judges reasoned that "[a]n alien is no more entitled to [S]ection 212(c) relief when charged with a ground of removal that has no statutory counterpart under the INA's inadmissibil ity provisions than a defendant is entitled to a sentenc ing range consistent with the least serious crime with which he could have been charged." Id. at 20-21. Be cause "two aliens who have been charged with removal on different statutory grounds are not similarly situ ated," the concurring judges concluded that petitioner had suffered no equal protection violation. Id. at 19-20.

A dissent by Judge Thomas, joined by Judge Preger son, concluded that the majority's application of former Section 212(c) to aliens who are inadmissible but not to those who are deportable lacked a rational basis and thus violated equal protection. Pet. App. 23-24. The dis senters would, in their words, have "overrule[d] Koma renko (applying a comparable grounds test), and fol low[ed] the lead of the Second Circuit's well-articulated opinion in Blake [v. Carbone] (applying an offense-spe cific test)." Id. at 33 (citations omitted).

5. Petitioner sought rehearing by the full court. On August 18, 2009, the court denied that request. Pet. App. 92. Judge Berzon, joined by six other judges, dis sented. Id. at 92-113.

ARGUMENT

The decision of the court of appeals correctly left in place the Board's statutory-counterpart test, codified in a regulation that sets forth criteria for granting relief under former Section 212(c) of the INA. The issue pre sented concerns a statutory section that was repealed more than 13 years ago, and that therefore is of greatly diminished importance. Moreover, every court of ap peals to have addressed the question (except the Second Circuit) would deny petitioner relief. This court has recently denied certiorari in two cases presenting a sim ilar question. See Birkett v. Holder, 129 S. Ct. 2043 (2009) (No. 08-6816); Gonzalez-Mesias v. Holder, 129 S. Ct. 2042 (2009) (No. 08-605). Further review is simi larly unwarranted in this case. Petitioner repeats much of the argument from the pending petition for a writ of certiorari in De la Rosa v. Holder, No. 09-594 (filed Nov. 13, 2009). Petitioner asks (Pet. 18, 21) for his petition to be held for the disposition of that case, which he says (Pet. 21) "squarely address[es] the underlying issue" he wants this Court to consider. Just as certiorari should be denied in De la Rosa, certiorari should be denied in this case.

1. As petitioner acknowledges (Pet. 19), the First, Third, Fifth, Sixth, Seventh, Eighth, and Eleventh Cir cuits have concluded in published opinions that the Board's application of the statutory-counterpart test constitutes a permissible interpretation and implemen tation of former Section 212(c) and does not violate equal protection. See, e.g., Kim v. Gonzales, 468 F.3d 58, 62-63 (1st Cir. 2006); Caroleo v. Gonzales, 476 F.3d 158, 162-163 (3d Cir. 2007); Vo v. Gonzales, 482 F.3d 363, 371-372 (5th Cir. 2007); Koussan v. Holder, 556 F.3d 403, 412-414 (6th Cir. 2009); Zamora-Mallari v. Mu kasey, 514 F.3d 679, 691-692 (7th Cir. 2008); Vue v. Gon zales, 496 F.3d 858, 860-862 (8th Cir. 2007); De la Rosa v. United States Att'y Gen., 579 F.3d 1327, 1335 (11th Cir. 2009), petition for cert. pending, No. 09-594 (filed Nov. 13, 2009).2

Although the Ninth Circuit's legal analysis in this case was different, petitioner acknowledges (Pet. 20) that "there is no practical difference between the en banc [c]ourt's holding" and the holding of these other circuits, which have approved the Board's practice fol lowing In re Blake, 23 I. & N. Dec. 722 (2005), because both approaches "leave in place the implementing regu lations and their interpretation by the [Board]," Pet. 20. The court of appeals expressly stated that its decision did not "cast[] any doubt on the regulation" that codified the Board's statutory-counterpart rule. Pet. App. 9. And subsequent decisions from the Ninth Circuit and the Board bear out that result. See Aguilar-Ramos v. Holder, 594 F.3d 701, 706 (9th Cir. 2010) (applying 8 C.F.R. 1212.3(f)(5) and finding alien ineligible for Sec tion 212(c) relief because the grounds for his removal did not have statutory counterparts among the grounds of inadmissibility); In re Moreno-Escobosa, 25 I. & N. Dec. 114, 117 (B.I.A. 2009) ("[T]he Ninth Circuit's deci sion in Abebe v. Mukasey can be fairly read as rejecting the equal protection challenge to the application of the statutory counterpart rule.").

The only court of appeals to have reached a different result is the Second Circuit, in Blake v. Carbone, 489 F.3d 88, 103-104 (2007).

2. Although petitioner concedes (Pet. 21) that "the Ninth Circuit does not squarely address the underlying issue," he contends (Pet. 21-27) that the statutory- counterpart rule applied by the Board violates the equal protection component of the Fifth Amendment's Due Process Clause. Petitioner argues (Pet. 22) that the Board's decision in In re Blake "creates an irrational distinction between [lawful permanent residents] who have traveled abroad and [those] who have not, contrary to Section 212(c) as it has consistently been interpreted and contrary to equal protection." Petitioner thus es sentially contends as follows: If he had left the United States and attempted to return, his conviction for com mitting a lewd act upon a child could have subjected him to removal based on a charge of inadmissibility for hav ing committed "a crime involving moral turpitude" un der Section 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. 1182(a)(2)(A)(i)(I), and that would have made him eligi ble for Section 212(c) relief. Petitioner contends that it is irrational for him to be ineligible for Section 212(c) relief because he remained within the United States and thus was subject to removal based on the charge of hav ing committed the aggravated felony of sexual abuse of a minor-a ground that the Board holds is not compara ble to the inadmissibility ground of having committed a crime involving moral turpitude. This argument is with out merit.

a. As an initial matter, petitioner errs in contending that:

Before 2005, the [Board] consistently held that [a lawful permanent resident] deportable on the basis of an aggravated felony conviction for "sexual abuse of a minor" or a "crime of violence" was eligible for Section 212(c) relief from removal if the underlying conviction would have been a basis for inadmissibility (e.g., as a "crime involving moral turpitude" under [8 U.S.C. 1182(a)(2)(A)(i)]).

Pet. 21. Petitioner cites no Board precedent holding that an alien who has been convicted of a crime render ing him deportable as an aggravated felon on the grounds of "sexual abuse of a minor" or a "crime of vio lence" is categorically eligible for relief if his particular crime could have served as a basis for inadmissibility.3

b. As this Court has repeatedly stated: "'over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). Thus, whether an immigration provision is con stitutional depends only on the existence of a "facially legitimate and bona fide reason" for its enactment. Id. at 794 (quoting Kleindienst v. Mandel, 408 U.S. 753, 770 (1992)).

As a general matter, Congress has determined that the statutory regime that applies to an alien who has already been admitted to the country is different from the one that applies to an alien who is seeking admission. Compare 8 U.S.C. 1182, with 8 U.S.C. 1227. It is thus unsurprising that the categories of offenses that make an alien inadmissible are not always the same as those that may render an alien deportable from the country. That fundamental legislative choice shows that aliens who are inadmissible are not situated similarly to aliens subject to removal on grounds of being deportable, even though there may be some overlap between the underly ing conduct that renders an alien inadmissible and the conduct that renders an alien deportable. It is only when a statutory ground that renders an alien deport able under the one regime has a statutory counterpart that renders an alien inadmissible under the other re gime that the two aliens could be said to be similarly situated for equal protection purposes (and thus warrant the application of former Section 212(c) to the category of aliens to whom it did not, by its own terms, apply).

The reasoning employed in Komarenko v. INS, 35 F.3d 432 (9th Cir. 1994), which was followed by the con curring opinion in the court of appeals (Pet. App. 11-23) and has also been endorsed by most of the other courts of appeals, is persuasive.4 In Komarenko, the Ninth Circuit rejected a similar equal protection claim in find ing that two groups of aliens convicted of different crimes were not similarly situated for purposes of eligi bility for Section 212(c) relief. Id. at 435. The court concluded that the "linchpin of the equal protection anal ysis in this context is that the two provisions be 'substan tially identical.'" Ibid.; see also Leal-Rodriguez v. INS, 990 F.2d 939, 952 (7th Cir. 1993). Komarenko contended that the court was required to "focus on the facts of his individual case and conclude that because he could have been excluded under the moral turpitude provision, he has been denied equal protection." Komarenko, 35 F.3d at 435. The court, however, refused "to speculate whether the I.N.S. would have applied this broad ex cludability provision to an alien in Komarenko's posi tion," because engaging in such speculation "would ex tend discretionary review to every ground for deporta tion that could constitute 'the essential elements of a crime involving moral turpitude.'" Ibid. Such an ap proach, the Ninth Circuit explained in Komarenko, would be tantamount to "judicial legislating," would "vastly overstep" the courts' "limited scope of judicial inquiry into immigration legislation," and "would inter fere with the broad enforcement powers Congress has delegated to the Attorney General." Ibid. (quoting Fiallo, 430 U.S. at 792). Accordingly, the court "de cline[d] to adopt a factual approach to * * * equal pro tection analysis in the context of the deportation and excludability provisions of the INA," and it "conclude[d] that Komarenko was not denied his constitutional right to equal protection of the law." Ibid.

Thus, under the rational-basis standard of review, Congress may draw lines on the basis of general catego ries without regard to the circumstances of a particular individual. See, e.g., United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980). It is only when the stat utory ground for a deportable alien's removal from the country has a statutory counterpart in the grounds for inadmissibility that a deportable alien is arguably simi larly situated to inadmissible aliens. See Komarenko, 35 F.3d at 435. As the Seventh Circuit has explained:

[C]ertain deportable aliens may receive exclusion- type relief as if they were subject to exclusion rather than deportation. But that fiction requires that the aliens be excludable for the same reasons that render them deportable-a situation not necessarily true for all aliens facing deportations. Accordingly, [S]ection 212(c) relief was not extended to aliens whose de portability was based on a ground for which a compa rable ground of exclusion did not exist.

Leal-Rodriguez, 990 F.2d at 949 (emphasis added). The Seventh Circuit therefore held in Leal-Rodriguez that an alien who was deportable for entering the United States without inspection was not eligible for Section 212(c) relief because there was no ground of inadmissi bility that corresponded to that ground of deportation. Id. at 948, 950.

In this case, petitioner's argument similarly fails be cause his ground of deportation (for having been con victed of the aggravated felony of sexual abuse of a mi nor) is not "substantially equivalent" or "substantially identical" to a ground of inadmissibility under Section 212(a) of the INA. Komarenko, 35 F.3d at 435. As the Board correctly reasoned in In re Blake, sexual abuse of a minor under 8 U.S.C. 1101(a)(43)(A) lacks a stat utory counterpart among the grounds of inadmissibil ity in Section 212(a). Although sexual abuse of a minor may constitute "a crime involving moral turpitude" un der Section 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. 1182(a)(2)(A)(i)(I), the latter category addresses a dis tinctly different and much broader category of offenses than a charge for an aggravated felony of sexual abuse of a minor. Thus, while the statutory-counterpart test does not require a perfect match, the ground of inadmis sibility must address essentially the same category of offense on which the removal charge is based.

Under the pertinent regulations and the Board's de cisions, that test is not met merely by showing that some (or even many) of the aliens whose underlying offenses are included in a given category could also have their crimes characterized as ones involving moral turpitude. See, e.g., Zamora-Mallari, 514 F.3d at 693 (holding that the aggravated felony of sexual abuse of a minor has no statutory counterpart in the grounds of inadmissibility); Avilez-Granados v. Gonzales, 481 F.3d 869, 871-872 (5th Cir. 2007) (same). That analysis is also firmly supported by the unanimous opinions of the courts of appeals hold ing that a firearms offense (which is a ground of remov ability under 8 U.S.C. 1227(a)(2)(C)) has no statutory counterpart under Section 212(a), even though "many firearms offenses may also be crimes of moral turpi tude."5 In re Blake, 23 I. & N. Dec. at 728.

Thus, because petitioner is not similarly situated to an inadmissible alien who has been convicted of a crime involving moral turpitude, and because he is not being treated any differently from other aliens who are de portable upon grounds that themselves have no corre sponding ground of inadmissibility, his equal protection claim is meritless.6

3. Although the Second Circuit has reached a dif ferent result, the "underlying issue" that petitioner raises (Pet. 21) is not a question of sufficient importance to warrant this Court's review. The Second Circuit is an outlier: eight other circuits, including the Ninth Circuit below, have approved the Board's approach in In re Blake. And this Court denied certiorari twice last year, well after the Second Circuit had issued its decision in Blake v. Carbone, supra. See Birkett, supra; Gonzalez- Mesias, supra. Moreover, petitioner's question con cerns an alien's eligibility for a form of discretionary relief under a statute that was repealed more than 13 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 INS v. St. Cyr, 533 U.S. 289, 325 (2001). But the statutory-counterpart test to which peti tioner objects is not new-indeed, it long predated the repeal of Section 212(c) in 1996 (see pp. 2-3, supra; Blake, 489 F.3d at 98-99)-and petitioner could have easily avoided its effects by departing the country volun tarily at any point before his removal proceedings were initiated in 2005. Cf. Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44 (2006) ("It is therefore the alien's choice to continue his illegal presence * * * that subjects him to the new and less generous legal regime, not a past act that he is helpless to undo up to the moment the Govern ment finds him out.").

In contending that his case presents an issue of ex ceptional importance, petitioner cites a statistic about 10,000 grants of Section 212(c) relief between 1989 and 1995. Pet. 28 (quoting St. Cyr, 533 U.S. at 296). That figure is of little relevance here not only because of its age but also because Section 212(c) was still in effect between 1989 and 1995. In recent years, the number of grants of relief under former Section 212(c) has been smaller and declining. It went from 1905 grants in FY 2004 to 858 grants in FY 2009-a 55% decline. See Ex ecutive Office for Immigration Review, U.S. Dep't of Justice, FY 2008 Statistical Year Book Table 15, at R3 (2009), http://www.justice.gov/eoir/statspub/fy08syb.pdf; Executive Office for Immigration Review, U.S. Dep't of Justice, FY 2009 Statistical Year Book Table 15, at R3 (2010), http://www.justice.gov/eoir/statspub/fy09syb.pdf. Over that same period, the number of applications for relief under former Section 212(c) fell even more dra matically. In FY 2004, there were 2617 applications; in FY 2008, there were 1281; and in FY 2009, there were 576. That reflects a 78% decline since FY 2004-and a 55% decline since FY 2008.

Of course, the number of aliens who could be affected by the outcome of this case is necessarily even smaller, since an alien would not become eligible for discretion ary relief under petitioner's theory unless he or she met, at a minimum, each of the following criteria: (1) law ful-permanent-resident status; (2) a conviction predating the repeal of Section 212(c) that (3) resulted from a plea of guilty or no contest (rather than a trial);7 and (4) a removal charge that has no comparable ground of inad missibility except when considered on the basis of the facts of the underlying offense. Given the limited nature of that class, there is no merit to petitioner's assertion (Pet. 27) that this case presents an issue of "[e]xcep tional [a]nd [c]ontinuing [i]mportance."

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
DONALD E. KEENER
SAUL GREENSTEIN
Attorneys

MARCH 2010

1 In pertinent part, 8 C.F.R. 1212.3(f) states:

An application for relief under former section 212(c) of the Act shall be denied if: * * * (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.

2 The Tenth Circuit has applied the statutory-counterpart rule in an unpublished decision. Alvarez v. Mukasey, 282 Fed. Appx. 718, 723 (2008).

3 As the government noted in its brief opposing certiorari in De la Rosa (at 11-12), the only precedential opinions cited by that petitioner were distinguishable, and In re Blake is the only precedential decision of the Board to have specifically addressed the ground of removal for sexual abuse of a minor. See 23 I. & N. Dec. at 724-728.

4 In light of its decision to overrule the Ninth Circuit's decision in Tapia-Acuna, the en banc majority opinion in the court of appeals found it unnecessary to reconsider Komarenko, as petitioner had in vited. Pet. App. 9.

5 For the same reason, petitioner's contention (Pet. 26) that the Board erroneously interpreted 8 C.F.R. 1212.3(f)(5) so as to "confine" this Court's decision in St. Cyr, rather than "implement" it, fails. Peti tioner argues that the Board, in In re Blake, impermissibly interpreted 8 C.F.R. 1212.3(f)(5) inconsistently with its "prior practice of holding that [a lawful permanent resident alien] deportable for having com mitted an aggravated felony was eligible for Section 212(c) relief if the conviction would also fall under a counterpart inadmissibility provi sion." Pet. 26 (emphasis omitted). But petitioner's characterization of the Board's prior practice is flawed, because it overlooks the fact that the Board has always considered whether the charged statutory ground of deportability compared with any statutory ground of inadmissibility, and not whether the alien's underlying crime could have formed the basis for a different charge of inadmissibility. See In re Blake, 23 I. & N. Dec. at 728; Pet. App. 59 (initial panel opinion) ("[T]he BIA has not recently changed course but rather has maintained a consistent position for many years."). As a result, petitioner's objections (Pet. 26) to an al legedly "retroactive application" of 8 C.F.R. 1212.3(f)(5) are unfounded.

6 Petitioner contends (Pet. 22) that the relevant comparison should be between deportable aliens who have left the country and those who have not, because a deportable alien who left the country could be treated as if he had been put into proceedings upon reentry such that relief was available nunc pro tunc. But, other than Blake v. Carbone, the authority he offers is In re L-, 1 I. & N. Dec. 1 (B.I.A. 1940), which addressed "the power to retroactively grant the Attorney General's discretion to permit an alien to reapply for admission after being deported and subsequently reentering the country." Ramirez-Canales v. Mukasey, 517 F.3d 904, 910 (6th Cir. 2008). The cases in which the Board has applied Section 212(c) or its predecessor provisions make clear that, although "[i]t has long been the administrative practice to exercise the discretion permitted by the foregoing provisions of law, nunc pro tunc," the Board does so only "where complete justice to an alien dictates such extraordinary action." In re T-, 6 I. & N. Dec. 410, 413 (B.I.A. 1954). Thus, while "the equitable power to grant orders nunc pro tunc is conceptually broad," Ramirez-Canales, 517 F.3d at 910, its application is wholly discretionary and it is limited to extraordi nary cases-not every case in which an alien is otherwise eligible for relief. For the same reasons that petitioner is not similarly situated to an alien who departed and is seeking to re-enter, complete justice would not mandate the application of nunc pro tunc discretion.

7 In some circuits, St. Cyr has been applied to allow some aliens who were convicted after a trial to be eligible for relief under former Section 212(c). The Court most recently denied certiorari on that question in Ferguson v. Holder, cert. denied, No. 09-263 (Mar. 8, 2010), and Molina-De La Villa v. Holder, cert. denied, No. 09-640 (Mar. 22, 2010). There is no evident reason why questions of statutory comparability associated with granting relief under former Section 212(c) are of any greater continuing importance than the questions about retroactivity analysis under former Section 212(c) that were presented in Ferguson and Molina-De La Villa.