Frederick v. Holder
644 F.3d 357
7th Cir.2011Background
- Michael Frederick, born in Germany in 1957, immigrated to the United States in 1961 and became a lawful permanent resident.
- In 1990 Frederick pled guilty in Illinois to two counts of aggravated criminal sexual abuse of a minor, with concurrent four-year sentences and parole completed in 1993.
- In 2007 DHS charged Frederick as removable as an alien convicted of an aggravated felony relating to the sexual abuse of a minor.
- Frederick sought relief under former INA § 212(c), arguing eligibility based on a comparable ground of inadmissibility and an expectation under St. Cyr.
- The IJ found removability and denied § 212(c) relief; the BIA affirmed, applying the statutory-counterpart rule that there is no § 212(a) ground comparable to sexual abuse of a minor.
- Frederick petitioned for review, challenging the BIA's application of the statutory-counterpart rule and related constitutional arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sexual abuse of a minor has a statutory counterpart in §212(a). | Frederick argues a comparable ground exists. | Frederick has no statutory counterpart for sexual abuse of a minor. | Ineligible; no statutory counterpart exists. |
| Whether Frederick is eligible for §212(c) relief under St. Cyr. | St. Cyr applies because pleas would have allowed relief then. | St. Cyr does not apply since there was no comparable ground at plea time. | Inapplicable; Frederick never had a §212(c) alternative relief. |
| Whether the statutory-counterpart rule violates equal protection. | Rule discriminates against removable aliens with no counterpart. | Rule is a valid test for eligibility, not a protected class issue. | No equal-protection violation. |
| Whether due process requires §212(c) relief or affects its consideration. | BIA denial implicated due process. | Discretionary relief does not vest a due-process right. | No due-process violation; no right to discretionary §212(c) relief. |
Key Cases Cited
- Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir. 2008) (aggravated felonies with no §212(a) counterpart are ineligible for §212(c))
- Valere v. Gonzales, 473 F.3d 757 (7th Cir. 2007) (statutory-counterpart rule; comparability governs eligibility)
- Leal-Rodriguez v. I.N.S., 990 F.2d 939 (7th Cir. 1993) (equal-protection framework for §212(c) eligibility)
- Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005) (sexual-abuse-of-a-minor does not have a statutory counterpart in §212(a))
- I.N.S. v. St. Cyr, 533 U.S. 289 (U.S. 2001) (retrospective effect of §212(c) repeal and plea-based relief)