Antоnio Fontes petitions for review of a deportation order and the denial of his motion to reopen, both the order and the denial having been issued by the Board of Immigration Appeals (“BIA” or “Board”). He makes two contentions: (1) that the order of deportation is barred by res judi-cata and (2) that the motion to reopen should have been allowed because he is eligible for a waiver of deportability pursuant to former Immigration and Nationality Act (“INA”) section 212(c), 8 U.S.C. § 1182(c) (1994) (repealed) (herеinafter “section 212(c)”). We do not have jurisdiction to resolve Fontes’s claim of res judica-ta, and his second contention is without merit. We thus deny the petition for review.
Background and Facts
Fontes is a 43-year-old native and citizen of Cape Verde who entered the United States in 1967 at the age of three. He was placed in deportation proceedings in November 1993 on the basis of a 1993 conviction in Rhode Island state court for a sexual assault which had occurred in 1985. He was charged with being deportable pursuаnt to INA § 241(a)(2)(A)(iii), now 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in INA § 101(a)(43), now 8 U.S.C. § 1101(a)(43) (for having committed a “crime of violence” as defined by 18 U.S.C. § 16), for which the term of imprisonment was at least one year. The state court had sentenced him to twenty years’ imprisonment, with twelve years suspended and probation for twelve years. He was paroled after four years in 1997. At a hearing before an Immigration Judge (“U”) on May 21, 1994, Fontes was found not de-portable as the charged crime was not an aggrаvated felony under the then-applicable law. Pursuant to § 501(b) of the Immigration Act of 1990 (“IMMACT”) (which added “crimes of violence” to the category of aggravated felony offenses), only crimes of violence committed after the November 1990 effective date of IMMACT would qualify as aggravated felonies. Because Fontes’s offense conduct occurred prior to 1990, the IMMACT amendments did not apply. The deportation proceedings were *117 accordingly terminated. The government waived appeal to the Board, and the decision was final.
On September 24, 1997, after passage of the Illegal Immigration Reform and Responsibility Act (“IIRIRA”), the government again brought removal proceedings against Fontes and, based upon the same conviction, charged him again with being deportable as an aggravated felon. He was charged under the INA’s new crime of violence provision, INA §§ 101(a)(43)(F), 237(a)(2)(A)(iii), 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). That provision expressly stated that it would apply retroactively, regardless of whether the cоnviction at issue was entered before, on, or after September 30, 1996. In a written pleading filed with the Boston immigration court, Fontes admitted the factual allegations contained in the Notice to Appear, which were based on his 1993 conviction for sexual assault in 1985, but he denied removability and in the alternative sought waivers of inadmissibility under sections 212(c) and (h) of the INA, 8 U.S.C. §§ 1182(c), (h). On October 28, 1997, an IJ found Fontes deportable on the charge and ordered his removal. The Board denied his appeal on October 9, 1998. Fontes filed with this court a petition for review of the Board’s denial of the appeal on November 9, 1998. The petition was dismissed for lack of jurisdiction on February 19, 1999, see Fontes v. INS, No. 98-2209, because the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), amended the INA to preclude judicial review of final deportation orders involving aliens convicted of certain crimes, including aggravated felonies. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).
Meanwhile, on November 10, 1998, Fontes filed a motion to reopen with the Board, informing it that his counsel never received a transcript or briefing schedule for the appeal and arguing that the case was improperly decided without briefing or argument. On January 21, 1999, the Board denied the motion as untimely. On February 22, 1999, Fontes filed a petition for review of that decision with this court, see Fontes v. INS, No. 99-1214, which we dismissed for lack of jurisdiction, again citing Fontes’s aggravated felony conviction.
Fontes then moved the Board for reconsideration of its decision refusing reopening in order to allow an opportunity for briefing. He asserted that “an egrеgious violation of due process” would result if the Board did not allow him a chance to brief fully his central claim on appeal, that the removal proceeding against him was barred by res judicata. The Board vacated its January 21, 1999 ruling and accepted Fontes’s motion for late filing. After full briefing by the parties, the Board, on June 29, 2000, sustained Fontes’s appeal in part and remanded the case for further proceedings. The Board specifically rejected Fontes’s claim that his offense could not be characterized as an aggravated felony because his criminal conduct predated IIRIRA’s amendments to the INA’s aggravated felony definition, which had added the crime of violence provision. The Board also affirmed that Fontes was ineligible for a waiver under section 212(c) because of Congress’s repeal of that waiver provision in the IIRIRA. The Board, however, found that the record was insufficient for it to evaluate Fontes’s argument that his removal was barred by res judica-ta, becаuse nothing pertaining to the 1993 deportation proceeding had been included in the record. The Board thus remanded for “reconstruction” of the record relating to the 1993 proceeding.
Following record reconstruction, an IJ certificated the case back to the Board for *118 a ruling on res judicata. On September 30, 2004, the Board ruled that res judicata was not a bar because the current removal proceeding was a change in the law brought about by Congress’s 1997 amendment of the INA’s aggravаted felony definition, causing it to apply retroactively to all convictions within its ambit. Such a change in the law, the Board ruled, “is generally considered an exception to the doctrine of res judicata.” The Board accordingly dismissed Fontes’s administrative appeal. Fontes did not petition this court for review of the Board’s September 30, 2004 decision rejecting his res judicata argument, nor did he then petition any federal district court for habeas corpus review.
Approximately three months lаter, on December 30, 2004, Fontes filed with the Board a motion to reopen in which he argued that he should be allowed to seek discretionary relief under section 212(c) based on the Supreme Court’s decision in
INS v. St. Cyr,
On April 21, 2005, the Board denied Fontes’s motion to reopen. The Board found that Fontes could not qualify for reopening under 8 C.F.R. § 1003.44, which addresses section 212(c) relief for aliens with convictions predating April 1, 1997, when section 212(c) was repealed. See 69 Fed.Reg. 57826 (Sept. 28, 2004). The Board determined that relief under the regulation was not possible as he was ineligible for a section 212(c) waiver. His ground of deportability was his conviction of a crime of violence constituting an aggravated felony offense, and for' that ground of deportability there was no statutory counterpart in INA section 212(a), as required fоr a waiver under section 212(c). As the Board explained,
No provision in section 212(a) of the Act establishes inadmissibility for a “crime of violence” or any comparable category of offense. The fact that some or many crimes of violence may render an alien inadmissible under some provisions of sections 212(a) of the Act is not sufficient to meet the test of comparability.... Because section 212(a) has no relevant statutory counterpart, [Fontes] is not eligible for a section 212(c) waiver. Therefore, he is ineligible for reopening under 8 C.F.R. § 1003.44.
The instant petition for review followed on May 20, 2005.
Analysis
I. Res Judicata Claim Time-Barred
Fontes argues first that his deportation order is barred by res judicata. The government responds that we may not consider this argument because Fontes did not petition this court in a timely manner, i.e., within 30 days of September 30, 2004, for review of the Board’s decision denying the res judicata challenge and dismissing his appeal. Under the current statutory framework, petitions to review in this court must be brought within 30 days of the dates of final orders of removal. 8 U.S.C. § 1252(b)(1);
see Ishak v. Gonzales,
*119 Fontes responds that he is entitled to relief from the statutory 30-day time limitation because, on September 30, 2004, when the Board handed down its adverse ruling on res judicata and dismissed his administrative appeal, he had no legal remedy in our court for the bringing of a petition for review. 1
The short answer to Fontеs’s contention regarding the absence on September 30, 2004, and the following 30 days, of any review process in our court, is that Congress was under no obligation to have provided him with one. The fact that, effective May 11, 2005, Congress for the first time allowed criminal deportees in Fontes’s shoes to file petitions for review in this court does not establish that Congress somehow intended to afford Fontes an earlier opportunity.
See Stone v. INS,
Fontes seeks to avoid the above by comparing his situation with that arising in
Rogers v. United States,
When application of a new limitation period would wholly eliminate claims for substantive rights or remedial actions considered timely under the old law, the application is “impermissibly retroactive.” ... The legislature cannot extinguish an existing cause of action by enacting a new limitation period without first providing a reasonable time after the effective date of the new limitation period in which to initiate the action.
Brown v. Angelone,
Purporting to rely on Rogers, Fontes asks us to establish a grace period of our own, running for 30 days from May 11, 2005, the effective date of the REAL ID Act of 2005 (“RIDA”), Pub.L. 109-13, Div. B, 119 Stat. 231, for him to have petitioned us for review. As his petition was, in fact, filed on May 20, 2005, this grace period would make timely his petition under RIDA.
As we have said above, however, Congress’s authority to establish judicial review procedures in immigration matters is plenary, making it questionable to what extent the precedent in
Rogers,
а criminal case, would be controlling here. But we need hot address that question since the present circumstances are unlike those in
Rogers.
Here, the RIDA 30-day limitation did not shorten an earlier, more extensive limitations period already applying to the same cause of action. To the contrary, Congress had previously forbidden
*120
review petitions to courts of appeals relative to deportation orders involving aliens removable for having committed criminal offenses; no such petitiоns were authorized until May 11, 2005, the effective date of RIDA.
See
note 1,
swpra.
It follows that there was no prior more generous limitations period that might have misled Fontes into failing to act sooner. Prior to RIDA’s enactment on May 11, 2005, Fontes could, to be sure, have sought review of his res judicata claim in the district court, seeking a quite different kind of federal process, habeas corpus.
Mahadeo v. Reno,
Enactment of RIDA terminated any opportunity for relief in the district court and, with no then-pending district court proceeding, Fontes’s right to challenge his removal order in this court on res judicata grounds expired.
See Chen v. Gonzales,
II. Denial of Motion to Reopen
Fontes argues that the Board erred in finding him ineligible for section 212(c) discretionary relief because (1) he claims the comparability test does not apply to aliens charged with deportability on the basis of specific aggravated felony grounds, and (2) in any event, his crime forming the basis for the aggravated felony/crime of violence finding, first-degree sexual assault, is a “crime involving moral turpitude” under INA section 212(a), 8 U.S.C. § 1182(a), which does have a counterpart in section 212(a) and is thus waiva-ble under section 212(c). He further argues that the Board’s finding that he was not eligible for section 212(c) relief violates equal protection by treating similarly situated permanent residents differently based solely on whether they have traveled outside the United States. Having recently ruled in another case that an argument analogous to Fontes’s fails,
see Kim v. Gonzales,
*121
The Board’s denial of a motion to reopen is reviewed by this court for an abuse of discretion.
Chen v. Gonzales,
a. Background
Prior to the enactment of IIRIRA, INA section 212(a) made several classes of aliens excludable from the United States, including those convicted of offenses involving moral turpitude or the illicit traffic of narcotics.
See
INA, § 212(a), 8 U.S.C. § 1182(a) (1994). Pursuant to section 212(c), however, the Attorney General was given broad discretion to waive certain grounds of exclusion and admit excludable aliens.
See St. Cyr,
By its terms, section 212(c) was literally applicable only to aliens in exclusion proceedings. However, in 1976, the Second Circuit ruled that it was a denial of equal protection not to extend the waiver opportunity to those being deported as well as to those being excluded,
Francis v. INS,
We rejected an attack on the Board’s comparability doctrine in
Campos v. INS,
We do not believe the Attorney General erred by attributing to Congress no visible intention to expand the relief set out in § 212(c) beyond that expressly set out in § 212(c) itself. Clearly if any such result was intended, Congress was required by any normal canons to have amended § 212(c). This it failed to do. We are satisfied that the BIA’s current interpretation of § 212(c) is supported, and that petitioner’s position .... is not justified by either the terms or the history of the legislation.
Id. at 315. We likewise rejected Campos’s equal protection challenge, finding that Congress’s choice to treat different criminal grounds of deportability differently for purposes of discretionary relief withstood rational basis scrutiny, and that Campos was “being treated no differently from any other alien convicted of a crime that is a ground for deportation but has no corresponding ground for exclusion.” Id. at 316.
b. Fontes’s Claim
Fontes argues first and most generally that the comparability test somehow does not apply to aliens charged with de-portability on the basis of specific aggravated felony grounds. In
Sena v. Gonzales,
Fontes additionally asserts that his conviction for sexual assault makes him guilty not only of an aggravated felony and crime of violence but also of “a crime involving moral turpitude,” which is a statutory ground of exclusion, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2000), and which also was waivable before section 212(c) was repealed. Thus, he contends the waiver authority should be extended to him under
St Cyr
and the subsequent regulations. We recently held in
Kim
that this argument fails because there is no waiver authority for one excluded as an “aggravated felon” or one who commits a “crime of violence.”
We also reaffirmed in
Kim
the Board’s earlier ruling in
In re Brieva,
23 I. & N. Dec. 766, 772-73 (BIA 2005), that there is no basis for saying that, generally, crimes of moral turpitude and aggravated felonies or crimes of violence are essentially the
*123
same category.
Kim,
Finally, as noted, section 212(c) was part of a scheme that juxtaposed various grounds for exclusion (listed in section 212(a)) with qualified authority of the Attorney General (described in section 212(c)) to waive individual grounds in the case of certain permanent residents who were seeking to reenter the country.
Kim,
We deny the petition for review.
Notes
. The INA at that time precluded review in this court of final deportatiоn orders involving aliens removable by reason of having committed certain criminal offenses, including aggravated felonies, as here. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). It was for this reason that we earlier denied review to Fontes of prior BIA actions in his case. As explained infra, the REAL ID Act of 2005, making provision for review of removal orders of this type in the circuit courts, did not take effect until May 11, 2005.
. RIDA eliminated habeas review as of May 11, 2005, replacing habeas review, in the case of aliens with criminal convictions wishing to challenge their final orders of deportation and removal, with the right to bring such a challenge by means of a petition for review in the courts of appeal. 8 U.S.C. § 1252(a)(2)(D).
.
Sena
also requires that we reject Fontes’s argument that under the regulations promulgated to implement
St. Cyr,
the eligibility of aggravated felons to apply for section 212(c) relief depends on when a particular alien pleaded guilty to the offense forming the basis for the charge, and the length of sentence he served.
See
8 C.F.R. § 1212.3(f)(4). That provision does set еligibility requirements for aliens charged with aggravated felony offenses, but it does not preclude -the application of other general requirements for section 212(c) eligibility in aggravated felony cases, such as the requirement of a comparable ground of inadmissibility as codified in 8 C.F.R. § 1212.3(f)(5) and applied by us in
Sena.
. Fontes also argues that the Board erred in denying his appeal because application of the Board’s decision in
In re Blake,
23 I. & N. Dec. 722 (BIA 2005), in conjunction with the newly promulgated regulation in 8 C.F.R. § 1212.3(f)(5) creates аn impermissi-bly retroactive effect. There is no retroactivity problem in the context of this case. The particular ground of deportability here — an aggravated felony predicated upon a crime of violence — did not exist when Fontes pleaded nolo contendere to his sexual assault offense. At that time, as the IJ originally found in 1993, Fontes was not deportable as an aggravated felon based on that offense. Had such a ground existed, Fontes would not have been eligible for a section 212(c) waiver under the comparability test because then, as now, no comparable ground of ex-cludability existed for a crime of violence. The real issue is that the amended aggravated felony definition under which Fontes was subsequently found removable
does
apply retroactively to his case.
See
IIRIRA § 321(b), 8 U.S.C. § 1101(a)(43);
Sousa v. INS,