Abebe v. Mukasey

KOZINSKI, Judge, Before ALEX Chief PREGERSON, J. HARRY ANDREW THOMAS, KLEINFELD, SIDNEY R. SILVERMAN, RONALD M. BARRY G. TALLMAN, GOULD, RICHARD C. CLIFTON, R. CONSUELO RICHARD CALLAHAN, T. BEA and M. CARLOS SMITH, Judges. N. RANDY Circuit by Opinion; Curiam Concurrence Per. CLIFTON; by Judge Judge Dissent THOMAS.

ORDER opinion curiam that was filed per The 20, 2008, was filed error. November opinion accompanying The this order is opinion substituted as the of the court. and dis- previously The filed concurrence order. sent are unaffected this petition rehearing remains and Fatma (argued) days, respondent Robert B. Jobe shall pending. Within Jobe, Marouf, B. Law Office of Robert San Petitioner response petition. file a to the Francisco, CA, petitioner. days response; for the reply within reply length per- shall not exceed the Zachary Nightingale, Miller Avantika R. response. mitted for the See 9th Cir. Hout, Shastri, and Marc Der Van Der Van 40-1. LLP, Hout, Nightingale, Brigagliano and Francisco, CA, curiae, for amicus San OPINION Project Immigration National of the Na- PER CURIAM: Lawyers tional Guild. perma- a lawful Petitioner became Christopher Fleming Marc James and, pled nent resident in 1984 Quarles, Pickering Hale & Wilmer Cutler guilty upon to lewd and lascivious conduct curia,

Dorr, LLP, Boston, MA, for amicus 288(a). § a child. CaLPenal Code INS Judulang. Joel commenced removal on Jr., having Dupree, Deputy ground deportable Thomas H. Assis- that he was as General; Keisler, “aggravated felony,” Attorney tant Peter D. committed 1227(a)(2)(A)(iii) General; Attorney Jocelyn M. abuse Assistant U.S.C. —“sexual 1101(a)(43)(A). Director, minor,” The Im- Lopez Wright, Assistant Office of of a id. (IJ) Park, petitioner’s Litigation; Song migration Judge E. Of- denied Immigration Litigation, Washing- asylum, withholding of removal and Con- Immigration fice of claims, ton, DC, Against vention Torture and found respondent. for the discretionary for a be for section petitioner ineligible relief if under former Immi- substantially waiver his conviction is identical to a 212(c), Nationality §Act gration and Abebe, inadmissibility. See 1996).1 1182(c) § (repealed ap-On U.S.C. (Berzon, J., at concurring). F.3d 1106 Immigration peal Appeals to the Board of 212(c) plain Under its language, section (BIA), eligible that he’s petitioner argued gives Attorney General discretion to 212(c) The BIA af- for section relief. grant lawful permanent residents relief firmed, petitions and Abebe for review. only inadmissibility3 from deporta- —not that, 1182(c) argues § 2. Petitioner find tion. See 8 (repealed U.S.C. 212(c) relief, 1996). ing ineligible him for section Tapia-Acuna, though, followed equal protection. the BIA denied him Re INS, (2d 268, Francis v. 532 F.2d 273 INS, lying on Komarenko v. 35 F.3d Cir.1976), equal and held that protection (9th Cir.1994), three-judge pan 434-35 212(c) required us to extend section relief that petitioner eligible el held isn’t for facing deportation to aliens such aliens —if Gonzales, relief. Abebe v. section eligible would have been for section (9th Cir.2007), F.3d 1104-05 va 493 inadmissibility, relief from had left (9th Cir.2008). cated, 514 F.3d 909 Under attempted United States and to reen- Komarenko, 434-35, deporta 35 F.3d at a ter. Tapia-Acuna, 640 F.2d at 225. ble alien can be for section Francis, following Tapia-Acuna reasoned relief if his for granting there is no rational basis for substantially are identical to a for additional immigration relief to aliens who Here, inadmissibility.2 petitioner is de temporarily leave the United States and portable committing “aggravated try (i.e., facing to reenter aliens inadmissi- 1227(a)(2)(A)(iii), § felony,” 8 U.S.C. which bility), and not to aliens who remain in the substantially held isn’t identical panel (i.e., facing deporta- United States aliens analogous ground to the most for inadmis tion). Tapia-Acuna, 640 F.2d at 225. Ac- sibility committing involving “crime — cording to Francis Tapia-Acuna, it is 1182(a)(2)(A)(i)(I). turpitude,” § moral id. wholly irrational give any to Abebe, 493 F.3d at 1104-05. Petitioner advantage to aliens outside the United claims the rationale of Komarenko that it denies to situated States squared Tapia-Acuna can’t be with that of aliens within the United States. (9th Cir.1981). 640 F.2d are not convinced that Francis He therefore asks us to overrule Komar We enko, deportable Tapia-Acuna and hold that a alien can and accorded sufficient def- though repealed by ejected, 1. Even and is id. 1227. See Guzman-An- Illegal Immigration Gonzales, (9th Reform and Immi- drade v. F.3d (IIRIRA), grant Responsibility Act of 1996 IIRIRA, Under both inadmissible 104-208, Supreme Pub.L. Court held that deportable go through aliens the same repeal applied retroactively this can’t be process, proceedings.” called "removal Id. aliens, petitioner, pled guilty such as who (citing Ashcroft, Romero-Torres v. deportable crimes before IIRIRA took effect. (9th Cir.2003)). 289, 326, Cyr, INS v. St. 533 U.S. 121 S.Ct. (2001). 150 L.Ed.2d 347 changes 3. IIRIRA somewhat nomencla applicable immigration cases. What ture (or Inadmissibility pre- “exclusion” under "excludability” used to be is now "inadmissi law) applies IIRIRA to an alien outside the bility”; "deportation” enter, what used to be is now United States who is not allowed to 1182(a), interchange We terms "removal.” use these deportation applies U.S.C. whereas already ably. to an alien who is in the United States 1999). scheme, A alien who wishes to legislative deportable complex

erence to this relief will know that question, reconsider this as obtain and therefore long he can’t obtain such relief so as he authorized to do en banc. We note we are States; if he de that the statute doesn’t dis remains United at the outset States, however, parts and insular the United he could against criminate discrete By any eligible for such relief. en minority or trench on fundamental become couraging self-deportation, gov such rights, apply and therefore we standard v. Bara ernment could save resources would oth rationality. United States bare arresting deporting Cir. erwise devote to jas-Guillen, 632 1980) v. Alvarez v. Dist. Dir. these aliens. See Jurado-Gutierrez (quoting of (10th (9th Greene, INS, 1220, 1135, 1224 190 F.3d 1153 Cir. 539 F.2d Cir. U.S. 1976)). 1999), abrogated part by Cyr, v. Congress particularly broad INS St. 289, 2271, 326, when it comes to 533 121 S.Ct. 150 sweeping powers and U.S. (2001). immigration, Saving and is therefore entitled to an L.Ed.2d 347 scarce re paid it that additional measure of deference when sources would otherwise be admission, exclusion, legislates by taxpayers certainly legitimate as to re is a con moval, gressional objective. matters per naturalization other taining to aliens. See Kleindienst v. Man dissenting colleagues argue Our that the del, 753, 769-70, 408 92 S.Ct. 33 U.S. Congress reason we attribute to is not so (1972); v. L.Ed.2d 683 Boutilier 387 all rational after because aliens who are 118, 123-24, 1563,18 L.Ed.2d U.S. 87 S.Ct. yet for a potentially eligible “excludable (1967); Nestor, Flemming 661 v. 363 U.S. generally waiver ... [are] 603, 616, 80 4 L.Ed.2d 1435 S.Ct. apply allowed to enter and to for waiver (1960). task, therefore, Our is to deter country,” gov- from within the and so the mine, statutory not whether the scheme up having deport ernment will wind to us, makes sense to but whether we can anyway, they those aliens if are denied Congress a rational conceive of reason 212(c) relief. Dissent at 1215. But the may had in it.4 adopting choose, government may fact that the as a Congress grace, can: could have limited

We matter to admit aliens who seem very likely relief to seeking granted aliens to to be relief does enter the from in order to not that it abroad mean won’t exclude those it deportable likely an incentive for aliens believes are to “create[ ] less obtain such re- country.” Requena-Rodri rationality to leave the lief. The of the statute lies in discretion, v. guez Pasquarell, giving 309 on a case case Cir.1999) Reno, basis, (quoting agency LaGuerre v. to an that can assess the (7th Cir.1998)); F.3d see De likelihood of the alien’s success and the Reno, (3d v. Sousa Cir. cost of his removal.5 determination, making isting Byzantine inquiry we do not this structure. Our legislation, hypothetically to the actual therefore focuses on whether a look rationale for Congress adopted very rational could have impossible as it is often difficult or scheme, statutory Congress not on whether body, determine what collective such as actually adopted particu- the statute with that Congress, has in mind. The task would be lar reason in mind. particularly difficult in case like ours where statutory scheme now in force is the product repeated layers congressional 5. The dissent also claims that this will some- judicial interpretations, pro- enactments so it how "increase the number removal would, turn, quite likely anticipated ceedings, spend ex- that no one which more arguing error when taken in that we’ve The dissent makes similar undermined 1212.3(f)(5) it it is inconsistent with the argues validity of 8 C.F.R. un- “that a ration- statutory scheme to assume der the Cyr, rationale INS St. persons al would want these U.S. S.Ct. 150 L.Ed.2d 347 country.” at 1216. The (2001). leave the Dissent Dissent at 1216. The INS here, irrationality as we under- supposed certainly choose to treat different classes it, having people leave stand would be same, though of aliens the even the statute country only after to be re-admitted not, nothing Cyr does prevents St granted are relief. doing course, it from ruling so. Of our might cause the to reconsider the fact that not The dissent overlooks regulation, eventually repeal it as apply ultimately all who for relief those longer necessary. no most, up But that’s it; many, perhaps receive will not. those, government; nothing say today we casts perfect And as to makes sense to any regulation. doubt on the to be our when want them outside borders they get point, they the bad news. At that thus Tapia-Acuna’s We overrule hold- in rely cannot on inertia to remain ing that pro- there’s no rational basis for decision, country despite the adverse viding section relief from inadmissi- government to chase them force the down bility, deportation. but not The BIA pay deportation. Judge for their As right therefore didn’t violate petitioner’s to Reno, Posner noted LaGuerre v. 164 equal protection by him finding ineligible (7th 1035, Cir.1998), induce “[t]o for section deportation. relief from voluntary a little departure, their carrot is petitioner Since was not for section them, dangled consisting op- before of the 212(c) relief in place, the first the BIA a portunity seek waiver should could not have an equal protec- committed by doing seek to return to the by tion violation him denying such relief. trigger To proceedings.” so exclusion 212(c) ruling, affirm the BIA’s We actually gov- what extent this will save the and have no reason to reconsider Komar- something ernment resources is we won’t Indeed, ruling today, enko. under our Ko- it, try hardly know until we but it is irra- letter, only marenko becomes a dead as its presume that a num- significant tional to purpose by was to fill a created Ta- gap may depart ber of aliens decide to in order pia-Acuna. 212(e) get a shot at relief. certainly argues 3. Petitioner also experiment, is entitled to without by denying claim for judiciary.6 interference from the For the IJ erred his reason, withholding petitioner much the same the dissent is mis- of removal. But resources,” 1216, any suspect dissent at but it discrimination based on other why dealing explain category. doesn't how or this would be the area And we’re with an zenith; indeed, case. power where federal is at its Supreme us we Court has instructed Stanton, "special judicial must exercise deference to 6. The dissent's citation to Stanton v. 7, immigra- congressional policy in the choices 421 U.S. 95 S.Ct. 43 L.Ed.2d 688 Bell, (1975), tion context.” Fiallo v. 430 U.S. misplaced. dissent at 1215 is This (1977) discrimination, 97 S.Ct. 52 L.Ed.2d 50 case involved sex and distinc- (footnote omitted). It would thus be rare subjected tions based on sex been far case, indeed, searching scrutiny where we could find irrationali- more for the last 4 decades Reed, ty congressional distinguish in a decision to or so. See also Reed v. 404 U.S. (other (1971). along among than S.Ct. 30 L.Ed.2d 225 Here we classes of aliens discrimination, lines). dealing suspect are not with sex unnecessary I of removal claim because believe is both withholding didn’t raise a BIA, BIA prior before the and the and unwise to overrule our decision his brief (9th required to consider it. Tapia-Acuna therefore r. 640 F.2d 223 See, Collegiate v. Nat’l Athlet e.g., Cir.1981), gov- Bowers to reach that result. The (3d Ass’n, 524, 535 n. 11 ic Cir. ernment has not advocated such drastic (issues 2007) appeal in the notice of raised by a step. original decision three- argued appellant’s principal but not court, judge panel of our Abebe v. Gon- abandoned). are deemed When brief zales, Cir.2007), 493 F.3d 1092 entirely no brief and relies petitioner files reached the same result in this case as the appeal the notice of to make an immi on by today, simply applying reaches gration argument, as he do before the existing precedent, Komarenko v. our BIA, 1003.38(f), then the see 8 C.F.R. (9th Cir.1994). INS, 35 F.3d 432 The en brief, appeal notice of serves in lieu of a panel banc do the same. should and he will be deemed to have exhausted I expressed share the concern peti all issues raised therein. But when a overruling sixty more than dissent with brief, file a the BIA entitled tioner does is years agency precedent and more than an explication to look to the brief for twenty-seven years precedent. of our own petitioner presenting issues that to have path also share the fear that the taken will reviewed. Petitioner therefore be majority puts jeopardy into deemed to have exhausted those is agency’s ability grant to continue to discre- argued sues he raised and his brief tionary proceedings pur- relief in removal Here, petitioner the BIA. before did file § Although suant to C.F.R. 1212.3. the brief, withholding which did not raise the otherwise, majority says interpretation its of removal issue. He therefore didn’t ex appears of the statute to leave no room for claim, jurisdiction that haust and we lack addition, I practice that to continue. Ashcroft, it. to review Barron v. 358 F.3d prefer aggravating would to avoid a circuit (9th Cir.2004) (citing 8 U.S.C. split with the numerous other courts that 1252(d)(1)). § To the extent Ladha v. adopted have the balance same we struck INS, (9th Cir.2000), 215 F.3d is to in Komarenko. contrary, the it is overruled. I nevertheless concur in the judgment DENIED IN PART and PETITION IN because I conclude that aliens DISMISSED PART.7 who could been, not, have but were charged with CLIFTON, Judge, Circuit with whom grounds equivalent removal on a ground Judges Circuit SILVERMAN and inadmissibility are not situat- join, in concurring judgment: GOULD the actually charged. ed to aliens who were so equal protection challenge I in Abebe’s there- judgment, denying concur the in part dismissing part way, although and in fore fails. Put another I Yewhalashet dissent, join I with Part I petition agree Abebe’s for review. do not most of I however, majority opinion,1 most of the disagree with Part II and do not believe given three-judge join majority opinion, 7. For the reasons I do in Part the 3 of panel opinion, erroneously the BIA didn't or agree petitioner because I that did not ex- 1182(c) (re- inconsistently apply 8 U.S.C. withholding haust his of removal claim before 1996), 1213(f). Abebe, pealed or 8 C.F.R. agency. Likewise, reject at we 493 F.3d 1101-04. petitioner’s process retroactivity argu- due ment. Id. at 1105. in that there no rational in our decision Komar- Acuna was basis overturn we should of Circuit’s re- the context section discrimi and follow the Second enko Carbone, in nating against aliens who had remained decision Blake v. cent (2d Tapia-Acuna adhere to Ko- the United States. (9th Cir.1981). deny petition ac- 640 F.2d and Abebe’s marenko cordingly. Today, holds that we were in Tapia-Acuna mistaken and that there

I. legitimate limiting is a basis for so out, availability at points the dissent since least relief. Even As (now in assuming arguments Branch there are favor of 1940 the Executive position, rejected twenty-seven Homeland Se- we it Department form of the DHS, curity, formerly through years ago. compelling or There is no reason Service, judgment Naturalization to overturn that now. No rele- Immigration and INS) changed, and vant circumstances our interpreted Immigration (INA) nearly it the been on Nationality granting Act as decision has the books for any depor- causing to afford relief from both three decades without mis- discretion (of States, majority may an alien inside the United chief the law. The be tation removal) prob- called and exclu- animated a desire to avoid future process now (of expansive conceptions to this lems or more seeking sion an alien admission border, equal protection, expressed by as such as that country at the now described L., Blake, 1 I. & the inadmissibility). ap- See Matter Second Circuit but (BIA 1940). empty to me to fear. pears N. Dec. 1 be We Tapia-Acuna’s, practice aware of this when drafted haven’t extended rationale INA, situations, including any putative harm 1952 amendments to the other 212(c). S., easily future could See In the Matter more be avoided (BIA 1955) (ex- by continuing precedent Dec. 394-96 to limit that to its I. & N. history). Although context. amining legislative it harder for the amendments made aliens majority quarrel The doesn’t with the relief, discretionary qualify to for such legal Tapiar-Acuna, Equal rule of that the nothing legislative history, there in the is irrational dis- prohibits Protection Clause abuses, catalogued perceived

which other parities simply disagrees in treatment. It suggest Congress disapproved to that of application long-settled the of that with of to government’s predecessor the use the statutory provision that was re- rule to grant deporta- to waivers in section years ago. disagrees a dozen It pealed among the rea- proceedings. tion This is disparate pre- treatment our court that the Immigration Ap- that the Board of sons is, fact, viously concluded was irrational held, peals shortly after the amendments’ always irrational. minds Reasonable Attorney that the General re- passage, case, disagree over the outcome of a close tained the discretion under section however, con- prior and our conclusion is relief in grant deportation to both every of other sistent with the conclusions proceedings. exclusion Id. justification saying circuit. I see no incor- Initially, government permitted the now that all of those decisions were rect, vitality the of section apply deportation especially to for relief from when aliens 212(c), long repealed, a statute since only they temporarily if had left the coun- subject already insignificance. diminished to near try they might such that have been pay need to so little Tapiar- pressing In we held in There is no to exclusion. only majority the overrule our weight precedent of and cor- Not does heed to the most, what, misapplica- simply power rect at is it precedent, casts doubt on DHS’s rule. agreed upon tion of an grant to relief It concludes that proceedings. or removal majority identi- The “rational basis” the “[ujnder plain language, its support discriminating against fies in Attorney discretion gives General temporarily aliens who failed to leave the grant permanent lawful residents relief committing after offense United States might qualify inadmissibility deportation.” that them for removal or from —not inadmissibility relies on a tenuous chain of Majority Op. (emphasis origi- at 1205 majority hypothesizes nal). The inferences. so, that doing majority holds Congress anticipated that that some aliens years sixty-eight agency practice might decide to travel across the border contrary to the will of that, knowledge based on under the immi- plain language of the stat- violation statute, they eligible for gration could be agency charged interpret- ute the with discretionary they country relief if left the ing, deporta- and that countless otherwise returned, but would not be so ble or removable aliens have remained in country. if did not leave the country agency’s this due to the error. that, majority speculates further from the Later, dissent, addressing when group of aliens who left the majority says otherwise and contends that reason, might successfully this some be nothing opinion in the undermines the va- stopped upon at the border their return 1212.3(f)(5). lidity That reg- 8 C.F.R. reentry, thereby saving and denied approach, ulation codifies DHS’s which we expense having to later Komarenko, Perhaps. approved limiting remove them. But it is not an of in that opinion accident finds it availability of section relief in re- 217, 4, necessary acknowledge, at n. that charged moval to aliens with seeking identify is not the actual removal on has a substan- legislation. rationale for the I doubt that tially statutory counterpart identical anyone majority’s believes tor- (the inadmissibility provisions INA’s “stat- any- tured construct was the mind of rule”). utory counterpart 8 C.F.R. body Hill. Capitol on Justifications for Komarenko v. 1212.3(f)(5); overruling longstanding one of our court’s 432, 434 But if the statute precedents should be made of sterner grant itself does not authorize DHS to might just say stuff. as well that We any relief in pro- removal Congress simply preferred agen- to let the whatsoever, ceedings majority as the cy grant discretionary only relief to those holds, authority where grant does to simi- aliens who love international travel. We inadmissibility lar relief from come from? place must some rational bounds on what say It is not an answer to that the survives rational basis review if the consti- government may choose to treat different right equal protection tutional is to have any meaning whatsoever the con- classes or aliens the same. The statute in outside (now suspect text of question classifications.2 is one that authorizes INS Perhaps majority equal poor position given the believes that vehicle to stake out that protection only growing have should force in cases the irrelevance of section involving away some form of invidious discrimina- the need to break from all of our sister tion, precedent and that all laws should survive rational circuits and reverse our own to do review, particularly basis but this case is a so. DHS) equal an discretionary protection right apply waivers to to grant tp proceedings. relief’); Gonzales, in If the persons exclusion Soriano v. authority grant (8th to discre- Cir.2006); had the agency Rodriguez-Pa F.3d 909 per- tionary everyone, including waivers to INS, (11th 1455, dron v. 13 F.3d proceedings, in whether deportation sons Cir.1994); see also Zamora-Mallari v. authority, such provides or not the statute (7th Mukasey, 514 F.3d 691-92 Cir. there would be no reason for the then 2008) (rejecting reasoning the of the Sec place. The statute first whole Blake); ond Circuit’s decision in v. Vue reasoning that majority’s thrust of the (8th Gonzales, 496 F.3d 860-62 Cir. statute, Congress, adopting the relevant 2007) (same). In overruling Tapia-Acuna rationally distinguish de- could between and discarding Komarenko as a dead let portation and exclusion and ter, majority three-way the creates a cir ability grant limit the to dis- could INS split cuit between those circuits that follow cretionary only waivers to those exclu- Komarenko, that Tapia-Acu those follow reasoning the proceedings. sion Under Komarenko, na but not and our court. majority, agency not have the does good Because I can discern no reason to authority grant such waivers to aliens abandon our sister circuits after if deportation proceedings, that’s faithfully accompanied us now down this 1212.3(f)(5) case, 8 C.F.R. serves no path, join well-worn I cannot purpose. opinion. every circuit

Finally, has question accepted Tapia-Acu consider the II. conclusion that relief is na’s pro and removal available Turning equal to the merits of Abebe’s ceedings regardless of whether an alien protection challenge, the dissent states every country, has left the but circuit to this, cases such as it is the act or “[i]n except question consider Second offense one itself makes alien similar- Blake, Circuit, see 489 F.3d at another, ly situated to not the upheld also followed Komarenko and government deport chooses to use to constitutionality statutory of DHS’s coun disagree. aliens.” Dissent at 1217. I Gonzales, terpart rule. Kim v. See government sought remove (1st Cir.2006); F.3d 62-63 Caroleo v. (1) independent grounds: Abebe on two Gonzales, (3rd 476 F.3d 162-63 Cir. committing his two convictions for crimes 2007); Gonzales, Brieva-Perez v. (2) (CIMTs) turpitude involving moral Cir.2007); Gjonaj an committing aggravat- his conviction for (6th Cir.1995) (“Numerous felony. argues aggra- that his ed Abebe compara courts have held there must be a felony qualify also vated conviction could ble of exclusion for alien that, if the had as CIMT and deportation proceedings to be CIMTs, solely him sought to remove for 212(c) relief. decline to for[section] We eligible which can also render an alien for rule.”); change this well-established Valere exclusion, (7th then he would have been Gonzales, v. 473 F.3d Cir. 2007) relief under discretionary for if (holding that “the removable 212(c). statutory He contends that DHS’s alien’s crime of conviction is not substan equal counterpart right rule violates his tially equivalent ground to a of inadmissi protection ... under the Due Process Clause bility then the removable alien is not him of section similarly purposes claiming for because it denies the benefit situated simply govern- because the cise of that discretion is unconstitutional relief it aggravat- him as an where is not exercised most ad- ment chose remove vantageous way possible given had com- for a alien ed felon instead of an alien who open the court would mitted Abebe asks that under the circumstances CIMTs. immigration an door to a torrent of claims. An alien is no impose a rule under which be forced to determine wheth- more entitled to section relief when judge would conviction, er, of removal that given particular gov- charged ground with a sought statutory counterpart could have to remove an no under the INA’s ernment ground equivalent ground inadmissibility provisions on a to a than a defendant alien inadmissibility. sentencing range for is entitled to a consistent with the least serious crime with which he cannot demonstrate that he has Abebe charged. could have been subjected irrationally been to discrimina- treatment, however, say can- that tory because he This is not to the executive position that not show he was the same branch’s exercise of discretion is without charged permitted an alien who was with removal constitutional limits. have as We substantially ground proceed against prosecutors on a similar to a claims to inadmissibility. simply, allegedly Put whose decisions were made on sex, race, charged two aliens who have with or religion. been basis United Redondo-Lemos, statutory grounds removal on different are States v. 955 F.2d Cir.1992), underly- situated. That the overruled on other ing government grounds by facts are such that v. Armstrong, United States (9th Cir.1995) (en rev’d, banc), charged could have them with removal un- F.3d 1508 statutory der similar is not 517 U.S. 134 L.Ed.2d S.Ct. (1996). enough. If that rule adopted, were Absent evidence of discrimina- class, problems however, would create a host of in count- tion against suspect there situations, predictable unpredict- judicial remedy less is no arbitrary even able, with, decisions, government charging plea bargaining where the is vested even exercises, discretion. though arbitrary pow- To take the “such an exercise of example, imagine quoti- most obvious er would be a Due Process violation.” Court, prosecutor dian circumstance of a faced Morris U.S. Dist. (9th Cir.2004) Redondo-Lemos, charges bring (citing

with decision of what 1300). against given judicial individual based on a set 955 F.2d at This is because charge carry inquiry of facts. Each will different prosecutors’ decision-making “into consequences, but a defendant cannot con- processes entangle ‘in the [courts] charges actually against test the brought govern- core decisions of another branch of ” ment,’ him by arguing that the could raising separation-of-powers con- him charged with a different offense cerns. Id. statutory under a provision. different Komarenko, provided this court addi- tional, pragmatic has vested the executive denying reasons for sec- whether, when, branch charged with discretion tion to an relief alien with to charge how an alien with removal. under a subsection of the for- How it exercises discretion will have a mer deportation statute was not “sub- impact serious on the life stantially removable identical” to a subsection of the alien, Abebe, whether it means removal forcible former exclusion statute. Like availability from the or the of sec- petitioner argued Komarenko that his tion relief. To that the underlying qualified hold exer- conviction could have heavily CIMT, statutory ground depend for exclu- individual’s actions on the a as a him sion, government’s charging would have made exercise of its dis- which held relief. The court for section cretion. “entirely were dis-

that the two Here, a prior Abebe had number of between and that “the distinction similar” The could convictions. have arbitrary is not or unrea- the two classes (1) chosen to seek removal based on his (citing Campos at sonable.” (2) CIMTs, aggravated convictions for his (1st Cir.1992) (“We (3) conviction, felony or both. It chose pur- that it is absurd that for say cannot three, option aggressively seeking remov- review discretionary deportation of poses every ground. al on available The court chooses to treat different crimes immigration judges should not put engage in differently.”)). We declined to second-guessing such charging business particular over alien speculation whether light govern- decisions. of how the excluded under the mor- “could have been charge ment chose to Abebe with remov- turpitude provision,” al and noted al, he was not situated to an petitioner’s proposed ap- adopting inadmissible, charged being alien with discretionary review proach “would extend charged an alien with removal on a that could every ground statutory counterpart with a elements of a constitute the essential inadmissibility provisions, the INA’s involving turpitude.” crime moral Id. equal protection challenge his fails. (internal original) quotation (emphasis omitted). judgment I therefore concur in the marks The court concluded that vastly the court. judicial legislating would “[s]uch in- scope judicial our limited

overstep THOMAS, Judge, Circuit with whom legislation, and quiry immigration into PREGERSON, Judge, joins, Circuit interfere with the broad enforce- dissenting: powers Congress delegated ment (internal cita- Attorney General.” Id. essence, to its this case involves Distilled omitted). quotation tions and marks This irrationality affording privileges reasoning applies equal today with force permanent step residents who lawful and, above, six of the seven as discussed day, denying across the border for but question other circuits to face the to those who do not. privileges the same reached the same result. unequal blesses this situation, not a as the dissent This is treatment, further, goes much overrul- but contends, permanent where two lawful ing years precedent, ap- more than 60 differently being

residents are treated statutory unconstitutional proving an “step one chose to across the because Immigration Board of scheme not even the day.” at 1213. It border for Dissent endorses, implicitly declaring Appeals are is a situation where two individuals regulation. unconstitutional a federal being differently treated because the respectfully I dissent. against materially them are dif- charges ferent, charges bring and different differ- consequences. simple ent This fact is as First, background. Prior to enact- some immigration proceedings

true in as it is Reform Illegal Immigration ment of the only to in criminal law. We cannot look Act in 1996 conduct; rather, Immigrant Responsibility underlying the con- (“IIRIRA”), separate proce- ultimately there were sequences that flow from 1214 (1) ney provi- relating regard rules General

dures and substantive without (25) (1)-through and already present paragraph sions of persons of (30) (31) (2) States, paragraphs and of subsection exclusion in the United and (a). entry. seeking Armendariz- persons Sonchik, 1116, 1122 Montoya 212(c), § 66 INA Stat. deporta The INA defined terms, 212(c), § By INA 8 its former (trans § § aliens in 8 U.S.C. 1251 ble 1996), (repealed applies § U.S.C. 1227), § § ferred to U.S.C. persons proceedings. in exclusion 212(a), in excludable aliens 8 U.S.C. Immigration Appeals Board procedures exclusion did not 1182. The (“BIA”) a recognized problem first with only apply seeking entry to those into the making section relief available to in the first instance. If a United States in in deportables excludables but not residing in the non-citizen United States 212(c)’s precursor the context of section temporarily country, left the he could be of L, statute.1 See Matter 11. & N. Dec. re-entry. perma excluded from Lawful (1940). BIA of L, In Matter held that (“LPRs”) are, course, nent residents 212(c)’sprecursor relief under section was successfully non-citizens who have satisfied proceeding in a deportation available statutory requirements and earned the fa departed the alien where had returned gov vorable exercise discretion to the after the United States ernment to be allowed to reside in the exclusion/deportation arose. To hold oth permanently. Although United States a erwise, noted, the BIA would render the resident, LPR permanent still could be “capricious statute and whimsical.” Id. at deported if he committed a qualifying interpreta 5. The Second Circuit took this country Francis, crime. If left the temporarily, he logical tion to its extension upon he could be excluded if he also return holding that section relief An qualifying persons deporta had committed offense. must be available to all LPR, entry, tion who would be excludable seeking as non-citizen grounds, just on the same those who generally subject to the proceed be same actually had left the and reen ings of exclusion if he trav Francis, Immediately tered. following eled abroad and returned to the United BIA 101(a)(3) analysis. embraced the Francis Mat (13), §§ INA States. See & Silva, (BIA (1952). ter 16 I. & N. Dec. Facing large Stat. vol 1976). ume of cases which a waiver of exclusion sought compassionate cases involv question When the then reached our LPRs, ing quali afforded certain Court, clearly the matter had been so de- fying the protection LPRs of subsection affirmed, initially termined when we (c): unpublished disposition, in an a denial of lawfully permanent

Aliens admitted for depor- relief to an alien in a temporarily proceeded residence who tation proceeding, Supreme Court voluntarily abroad and not an or- under granted certiorari and remanded the case deportation, der of and who are re- light to us for reconsideration in turning unrelinquished to a lawful domi- position Solicitor General’s its brief be- years, may cile of seven consecutive be Supreme fore the Court. The Solicitor admitted in the discretion of the Attor- General’s Brief on Petition for a ofWrit grew 1. Section out of the Seventh Pro- 39 Stat. 874. See Francis v. (2d Cir.1976). Immigration viso to Section 3 of the Act of F.2d 268 (1975). cur 43 L.Ed.2d 688 As the Sec- government’s “the asserted Certiorari Francis, recognized ond precedents “[Rea- that those Circuit position [which rent 212(c) suggest son and fairness would that an proceed to exclusion limit section and should be over alien whose ties with this are so are erroneous ings] strong departed at that he has never after his Respondent Brief for the ruled.” INS, entry initial should at 449 U.S. receive least as Tapia-Acuna v. (1980). The much consideration as an individual who 66 L.Ed.2d S.Ct. that leave and return from time to time.” “[i]n further stated Solicitor General view, Ninth 532 F.2d at 273. Circuit’s government’s support is without either the position Throughout litigation, govern- this statutory ] language [section provide ment has been unable to a rational appeals law on which the court of the case unequal basis for this treatment. The ma- remand, at 6. we fol has relied.” Id. On one, jority attempts conjure urging that “eligibility that lowed Francis and held making the rational basis constitutionally be relief cannot [§ ] relief available to aliens exclusion alien to an otherwise who is denied encourage “self-deporta- is to 241(a)(ll) (narcotics deportable [§ under tion” and thus save resources. conviction) ], whether or not the alien support There is no record for this ratio- returned to the United departed from and nale, majority’s reasoning and the contains Tapia-Acu after the conviction.” States First, two fundamental flaws. there is no 223, 225 na v. Cir. support encourag- for the contention that 1981). by the ing “self-deportation,” as described date, majority, actually inter- every court to consider the further the To this process saving government that due re est of resources. Sec- issue has determined ond, majority pre- reason the applied must be the rational quires Congress presumes as ex scribes to an interest deportation proceedings as well actually in with the stat- proceedings. See Blake v. Car which is conflict clusion (2d Cir.2007) bone, majority correctly ute 103-04 itself. While cases). not have to look to the (discussing notes that we do legislation,

actual rationale for the order rational, A must consis- to be the reason be tent. right. sister are The Su- Our circuits an LPR

preme long attempts Court has held the consti- When leaves country and is exclud- promise equal protection tutional of the reenter the deemed eligible for a section applies yet potentially to aliens as well as citizens. able laws 212(c) waiver, al- generally the LPR is Hopkins, Yick 118 U.S. 6 S.Ct. Wo (1886). waiver apply lowed to enter and to for the 30 L.Ed. 220 Under test, country. from If the alien is scrutiny applicable minimal which is within waiver, case, ultimately govern- in this distinctions between different denied reasonable, govern- him. No fewer persons classes of “must be ment must remove than if the arbitrary, rest some ment resources are exerted upon and must during having applied a fair alien for a waiver ground of difference Moreover, if object deportation proceeding. relation to the substantial as the actually were to function legislation, persons so that all statute encourage aliens to presumes treated alike.” circumstanced shall be Stanton, 7, 14, posi- in this voluntarily place themselves Stanton v. U.S. 95 S.Ct. recently departed tion—a contention which find dubious— and reentered the coun- this would increase the number of removal try. simply logical There is no reason to would, turn, in proceedings, spend which persons discriminate between whom Con- government more no resources.2 There is gress worthy subject has deemed to the — support in the record for the assertion that Attorney discretion of the re- General —of treating returning differently LPRs from maining country based on whether government remain those who would save they recently departed not have the resources. country.4 a As low threshold as the ra- Second, majority’s is, in implicit argu- the statutory tional basis test this scheme Congress ment that a rational would want pass. does not encourage to who are but aliens excludable 212(c) eligible place for section waiver to B proceedings themselves in exclusion is the majority’s The dismissal of the constitu- that a assumption Congress rational 212(c) problem tional in the text of section persons country. want these to leave the implicitly also casts considerable doubt on that, This is inconsistent with the fact constitutionality the a regula- of federal 212(c) waiver, creating Congress Supreme tion. After the Court held that explicitly identified group this of aliens as IIRIRA apply retroactively does not reentry desirable country, to the sub- 212(c) deny section relief to aliens who

ject Attorney to the General’s discretion. plead guilty charge to a which would oth- who, This is a group they not of aliens if eligible erwise make them for a section identified, are will necessarily be removed 212(c) waiver prior to the enactment of Rather, country. from the group this is a IIRIRA, Cyr, INS v. St. 533 U.S. of aliens whom has deemed wor- (2001), S.Ct. 150 L.Ed.2d 347 thy to remain in country, spite having Department Security been convicted of Homeland particular (“DHS”) crimes.3 group being promulgated This is the that is 8 C.F.R. 1212.3to sorted based on whether or codify holding Cyr. regula- St That majority responds 2. The government only encourage again, if at all—to them— likely immediately “exclude those it leave and believes are less reenter so as to take advantage going to obtain relief.” of section If we are waiver. to assume informed, advance, fully that LPRs will be differing about majority responds 4.The per- availabilities of relief in that "it makes deportation and fect sense to proceedings [án LPR] exclusion want to be outside our rational, borders when” will make he learns that he will not calculated decisions about However, above, receive relief. as discussed voluntarily leaving country in order to stopped an LPR who is at the border for proceeding, initiate an exclusion we should being eligible excludable but who is also also assume these individuals will take into generally relief will be admitted and obtaining account the likelihood of relief. application continue the relief from within the unlikely Those equally obtain relief are Thus, country. ultimately if he is denied re- unlikely leaving to take the risk of the coun- lief, will, fact, he be inside our borders try. majority’s speculation The nothing does gets when he "the bad news.” point to undermine the sup- that there is no port for encouraging the notion that "self- majority, respectfully suggest, quotes deportation” will save resources. Judge Judge Posner out of context. Posner addressing allowing the rationale for obvious, stating 3. At the making risk of option voluntary departure, which occurs relief available in exclu- deportation proceeding a has been initi- after Reno, encourage sion would not aliens ated. See LaGuerre v. to leave permanently, but would pending applications for sec- that, an alien thousands assuming provides tion question, particularly meets other re- tion relief into proceeding unnecessary for section to the resolution of the alien is when quirements, deporta- alien is petition “[t]he relief unless this do so. 241 of the Act or former section under ble Act on 237 of the under section

removable II statutory not have which does analysis dis- Applying the constitutional the Act.” 8 in section counterpart case, I present in Part I to the cussed 1212.3(f)(5).5 regulation § C.F.R. eligible is for sec- would hold that Abebe long-standing as- on the proceeds thus 212(c) the of- specific tion relief because majority has now which the sumption, deportable which makes him fense Circuit, that section in our overruled Equal protec- him excludable. also make deportation and exclu- applicable to both is equally treat aliens tion demands we proceedings. sion this, similarly situated. cases such as statutory language that the By holding is the act or offense itself that makes one is clear and Francis another, not the alien situated suffi- ] did not Tapia-Acuna “accordf chooses to use to grounds government the majority the Congress, cient deference” clarify our caselaw deport the aliens. To authority questioned DHS’s implicitly has proper it into constitutional bring and to See Chev- regulation. the above to enact overrule Komarenko v. alignment, would U.S.A, De- Inc. v. Natural Resources ron (9th Cir.1994) (applying 35 F.3d 432 837, 842-843, Council, Inc., 467 U.S. fense test), and follow the comparable grounds (1984) (“If 81 L.Ed.2d 694 S.Ct. well-articulat- lead of the Second Circuit’s clear, that is the intent of the Blake, (applying opinion in 489 F.3d 88 ed matter; agency, for the must end of the test). offense-specific unambiguously expressed give effect to the explained in her Judge As Berzon Congress.”). intent of Under opin- panel to the thoughtful concurrence rule, applied regulation that has been case, comparable ground ion in this cannot survive. in thousands of cases in Komarenko is irrec- approach adopted eligible apply for relief Those who were protection equal analysis oncilable with the very are on yesterday regulation under the I, Tapiar- and in supra, in Part discussed ground today. uncertain Indeed, comparable Acuna. as problems. creates new Just approach C aliens deportable between the distinction is, sum, depart no reason to There temporarily except alike that one who are de- long-established precedent, from our did not is while the other left many over decades this Circuit veloped grounds test arbitrary, comparable BIA has acted in every other. The equally arbitrary grounds. turns on it, and the reliance on A, commits assault Alien who prec- on this Consider its discretion based exercised deportable deadly weapon. He is indi- with a grant relief to thousands of edent to category falls into the because his offense justification is no for cast- viduals. There He is also excluda- felonies.” throwing “aggravated ing system aside now regulation Abebe. on this in affirm- 5. The BIA relied ing relief to the denial of Balderas, e.g.,

ble because that same offense falls into the Matter 20 I. N.& Dec. (BIA 1991). words, category involving turpi- “crimes moral In other sec- proceeding, offense-specific, tude.” In an exclusion his of- tion relief is itself fense, turpitude,” ground-specific. as “crime of moral A eligible would make Alien for a III up deportation pro-

waiver. If he ends however, ceedings, he is not Additionally, I respectfully dissent from 212(c) relief, comparable under majority’s holding that Abebe did not test, category “aggra- because the withholding exhaust his claim for of re- sufficiently vated felonies” is different moval. Abebe raised this claim his no- category from the of “crimes involving appeal tice of purpose before the BIA. The B, turpitude.” moral Alien the other on require- administrative exhaustion hand, drug who commits a offense is also ment is so that the agen- “administrative excludable, deportable both but is eli- cy[may] opportunity have a full to resolve 212(c) gible deportation relief controversy or correct its own errors proceeding simply drug because offenses judicial Sagermark before intervention.” were described with similar words (9th INS, v. 767 F.2d deportation and exclusion statutes. a petitioner When raises an issue in his type This appeal, classification between aliens notice of BIA a “full oppor- who tunity are otherwise situated vio- controversy,” partic- to resolve [the] equal protection lates rationally ularly light unless is petition- of the fact that the legitimate related to a government required inter- er is not accompanying to file an 3.38(f) (1999) Jimenez-Angeles Ashcroft, est. 291 brief. See 8 C.F.R. ” (9th Cir.2002). (“Briefs F.3d is parties be filed both .... added)). surely by important informed policy (emphasis con- Ladha v. making Cir.2000), when siderations determinations F.3d correctly about which deport- make an alien I decided. would hold that Abebe ex- offenses able or excludable. Decisions about the hausted his claim for withholding of re- size, scope, and overlap categories of moval and would thus remand to the BIA deportable and excludable offenses have no for consideration of the claim in the first rational judgments relation to about which instance. permitted

aliens should be to remain in country our and which should not. IV out, Judge As Berzon pointed reasons, there is For all of these I would find one inconsistency additional between eligible the Abebe for section relief. To comparable grounds test and way classify happenstance aliens based on the section relief functions a practical as recently departed whether the, matter. Once an alien receives a waiver of logi- reentered furthers no excludability under either section or Similarly, cal interest. provisions, other waiver classify the alien cannot deportation aliens in deported be excluded the future deportable sole- whose offense is also a ly due to the offense on which he received for exclusion agency-created based on the the waiver. This is if true even there is a category into which happens the offense category deportable applies crimes that fall legitimate government serves no inter- to his offense which hold, is different from the following est. would the Second See, category permitted Blake, the waiver. Circuit in 489 F.3d that an alien is proceeding ain if offense which relief would also render deportable him

makes Applying

him excludable. using an deportation proceedings

relief to analysis is the constitu-

offense-based of the statute. interpretation

tional

addition, that Abebe exhaust- I would hold withholding of removal his claim for

ed on that claim pursue allow him to 228, and 640 F.2d Tapia-Acuna,

remand.

Ladha, rightly were decided. 215 F.3d

Komarenko, over- should be

ruled. Blake, the Second Circuit

Like Judge Learned Hand’s at I find “It well apt here: particularly

caution free to rid ourselves

that we should be it is hospitality; but

those who abuse our enjoy the continued important that

more shall hospitality granted, once

ment of and irration subject meaningless

not be Karnuth, v. Pasquale

al hazards.” Di (2d is no There perma treating a lawful

rational basis the border steps resident who across

nent who does not. day better than one reasons, dissent. respectfully

For these

Mary BRAY, Plaintiff-Appellant, SE-

COMMISSIONER OF SOCIAL ADMINISTRATION,

CURITY

Defendant-Appellee.

No. 06-36072. Appeals, Court of

United States

Ninth Circuit. 23, 2008. and Submitted Oct.

Argued 6, 2009.

Filed Feb.

Case Details

Case Name: Abebe v. Mukasey

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 5, 2009

Citation: 554 F.3d 1203

Docket Number: 05-76201

Court Abbreviation: 9th Cir.