Petitioner Dung Tri Vo appeals a Board of Immigration Appeals (“BIA”) decision finding him ineligible to apply for relief under former § 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c), because one of his crimes, unauthorized use of a motor vehicle (“UUV”), lacks a comparable ground of inadmissibility under INA § 212(a). 1 We find no error in the BIA’s determination that Vo’s crime does not have a statutory counterpart in § 212(a) and accordingly DENY the petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dung Tri Vo, a native and citizen of Vietnam, was admitted to the United States as a lawful permanent resident on April 29, 1985. In December 1989, Vo was convicted in Texas state court of theft by receiving and was sentenced to five years imprisonment. One month later, he pleaded guilty to UUV and was sentenced to eight years imprisonment. Vo again pleaded guilty to UUV in Texas state court in 1992, and was sentenced to seven years imprisonment. For all of the offenses, he did not serve more than five years in prison cumulatively. Based on these convictions, on February 16, 2000, the Immigration and Naturalization Service (“INS”) served Vo with a notice to appear, charging that he was removable under INA § 237(a)(2)(A)(iii).
Vo appeared before an Immigration Judge (“IJ”), admitted the allegations, and conceded that he was removable based on the aggravated felony theft offense, 8 U.S.C. § 1101(a)(43)(G). However, he argued that the Texas crime of UUV was not a crime of violence, 8 U.S.C. § 1101(a)(43)(F). Vo also applied for relief from removal under the Convention Against Torture (“CAT”). See 8 C.F.R. § 208.16.
After finding that UUV was indeed a crime of violence, the IJ sustained both grounds for removal in findings that Vo *366 does not challenge. The IJ determined that the only form of relief open to Vo was deferral of removal under CAT, but Vo had failed to establish that it was more likely than not that he would be tortured if he returned to Vietnam. See § 208.16(b)(2). The IJ accordingly denied CAT relief and ordered Vo removed to Vietnam.
The BIA affirmed the IJ’s denial of relief under CAT. However, in light of
INS v. St. Cyr,
On remand, the IJ found Vo ineligible to apply for § 212(c) relief. Vo failed to establish that his UUV conviction had a statutory counterpart in § 212(a), since it did not qualify as a crime involving moral turpitude and there was no other crime listed under § 212(a) that could be linked to Vo’s conviction. Accordingly, the IJ denied Vo’s application for a waiver of removal.
The BIA dismissed Vo’s appeal, finding him removable because he committed an aggravated felony that was classified as a crime of violence under INA § 101(a)(43)(F). Relying on 8 C.F.R. § 1212.3(f)(5), and the reasoning of
Matter of Blake,
23 I. & N. Dec. 722,
II. DISCUSSION
A. Jurisdiction
The REAL ID Act amended 8 U.S.C. § 1252 to preclude judicial review of any removal order based on,
inter alia,
commission of an aggravated felony.
See
§ 1252(a)(2)(C);
Hernandez-Castillo v. Moore,
B. History of § 212(c) Relief
Former INA § 212(c) allowed a discretionary waiver of many of the grounds of inadmissibility set forth in § 212(a) for “[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven conseсutive years.” INA § 212(c), 8 U.S.C. § 1182(c). In
Francis v. INS,
In 1990, Congress limited § 212(c) availability to aliens who had served fewer than five years in prison, Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978, 5052. Congress then repealed the provision entirely in 1996 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-54, 3009-597. The Supremе Court, however, held that § 212(c) relief must remain available for aliens “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.”
St. Cyr,
In 2004, the BIA designed regulations to conform with St. Cyr. As part оf this codification, the BIA promulgated 8 C.F.R. § 1212.3(f)(5), which provided that an application for § 212(c) relief “shall be denied if: ... [t]he 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.” In Matter of Blake, the BIA applied § 1212.3(f)(5) and determined that the aggravated felony offense of sexual abuse оf a minor does not have a statutory counterpart in § 212(a). See 23 I. & N. Dec. at 727-29. The BIA specifically rejected the argument that sexual abuse of a minor constituted a crime involving moral turpitude as set out in § 212(a), concluding that the overlap between crimes of violence, such as sexual abuse, and crimes involving moral turpitude was insufficient to show that the crimes were statutory counterparts. Id. at 728. Because there is no other provision in § 212(a) that can serve as a comparable ground of inadmissibility to sexual abuse of a minor, Blake was ineligible to apply for § 212(c) relief. Id. at 729.
In so ruling, the BIA discussed how the decision “clarifie[d]” its prior precedent, rather than established a new rule or standard.
Id.
at 728. Since at least 1979, the BIA has held that § 212(c) relief is available only to waive charges of depоrtability for which there is a comparable ground of inadmissibility.
See, e.g., Matter of Granados,
16 I. & N. Dec. 726, 729,
The Attorney General affirmed the comparability requirement in
Matter of Hernandez-Casillas,
20 I.
&
N. Dec. 262,
In
Blake,
the BIA acknowledged that in order to qualify as a comparable ground of inadmissibility in a case involving an aggravated felony, it is not necessary that a provision of § 212(a) “recite[] the words ‘convicted of an aggravated felony.’ ”
Blake,
23 I. & N. Dec. at 724 (citing
Matter of Meza,
20 I. & N. Dec. 257, 259,
The BIA reiterated its requirement of a close textual link between a deportable alien’s crime and the asserted § 212(a) grounds of inadmissibility in
Matter of Brieva-Perez,
23 I. & N. Dec. 766,
C. Vo’s Appeal
As in
Blake,
the BIA determined that Vo’s crime of UUV does not have a statutory counterpart in § 212(a) because it cannot be considered a crime involving moral turpitude under the meaning of that provision. Vo attacks this holding, as well as
Blake,
on several grounds. Without lengthy discussion, a panel of this court, relying on
Brievar-Perez,
has rejected an alien’s contention that he was entitled to seek § 212(c) relief following a UUV conviction, as there is no comparable ground of inadmissibility.
See De La Paz Sanchez v. Gonzales,
1. Impermissible Shift in Agency Practice
Vo argues that in
Blake,
from which
Brieva-Perez
directly follows, the BIA deрarted from past agency practice regarding § 212(c) availability, and its interpretation is thus not entitled to judicial deference.
See INS v. Cardoza-Fonseca,
Vo can point to no published case where the BIA granted a section 212(c) waiver to an alien convicted of an aggravated felоny solely under the § 212(a) provision for crimes involving moral turpitude. Offhand comments in BIA opinions have led to confusion, but such comments regarding situations where § 212(c) relief is
not
available cannot be taken as binding BIA precedent requiring such relief to be available in all other instances.
See Hernandez-Casillas,
20 I. & N. Dec. at 282 n. 4 (Attorney General recognizing that § 212(c) relief is
not
available for those convicted of illegal reentry and illegal possession of certain firearms);
Granados,
16 I. & N. Dec. at 728 (possession of a sawed-off shotgun is
not
a crime involving moral turpitude, and the petitioner is therefore ineligible for § 212(c) relief on that ground). Nor are cases discussing whether certain firearms offenses
might
be considered to embody a ground of excludability as a crime involving moral turpitude persuasive where the BIA in fact found the petitioners
ineligible
for other reasons.
See Esposito,
21 I. & N. Dec. at 8-9;
Matter of Montenegro,
20 I. & N. Dec. 603, 605-06,
Vo makes much of the fact that
Blake
did not discuss
Matter of Rodriguez-Cortes,
20 I. & N. Dec. 587,
The circuit precedent cited by Vo as ostensibly extending § 212(c) eligibility to persons convicted of aggravated felonies unrelated to drugs is unpersuasive. Because each of the cases was decided on other grounds, the courts never specifically held that aliens convicted of crimes of violence are- broadly eligible to apply for § 212(c) relief under § 212(a)’s' “crime involving moral turpitude” ground of inadmissibility.
See Cordes v. Gonzales,
Accordingly, Vo has not demonstrated a substantial shift in agency practice sufficient to render the BIA’s interpretation of its own regulation irrational or arbitrary and capricious.
2. St. Cyr and Retroactivity
Vo next argues that the BIA’s holding violates
St. Cyr
's rule requiring that § 212(c) relief remain available for aliens who could have been eligible for such relief at the time of their pleas “under the law then in effect.”
St. Cyr,
Similarly, because the BIA did not adopt a new rule limiting § 212(c) relief when it clarified its position in 2004 with 8 C.F.R. § 1212.3(f)(5), we need not determine whether, under the rule set forth in
Landgraf v. USI Film Prods.,
3. Ultra Vires
Vo asserts that 8 C.F.R. § 1212.3(f)(5), and the BIA’s interpretation of it, is ultra vires. Vo points to the 1990 amendments, which barred § 212(c) relief for aliens who were convicted of an aggravated felony and served a term of imprisonment of at least five years. He argues that, by implication, all other aliens convicted of aggravated felonies should be eligible to apply for a discretionary waiver.
This argument has no merit. If Congress intended to overturn the practice requiring comparability, it could have done so explicitly. The amendments, however, were designed to limit the availability of § 212(c) relief; we cannot infer an intent by Congress simultaneously to expand § 212(c) eligibility when it clearly did not express such a desire.
As already discussed, the BIA has long required comparable grounds of inadmissibility in § 212(c) applications.
See, e.g., Wadvud,
19 I. & N. Dec. 182;
Granados,
16 I. & N. Dec. 726. Under Vo’s interpretation, Congress, by implication, intended to overturn this practice, by enabling all aggravated felons who had served less than five years to apply for a discretionary waiver, regardless of comparability. This is precisely the approach rejected by the Attorney General in
Hernandez-Casillas,
20 I. & N. Dec. 262, and we decline to
*371
expand the terms of the 1990 amendments beyond their plain terms.
See Rodriguez,
k. Internal Inconsistency
Vo argues that the BIA’s interpretation of 8 C.F.R. § 1212.3(f)(5) renders the regulation inconsistent with the remаinder of § 1212.3(f), which permits § 212(c) relief for aliens who pleaded guilty at specified periods of time, coinciding with the rules announced in St. Cyr. Under its terms, however, § 1212.3(f)(4) permits § 212(c) waiver eligibility for those who pleaded guilty to aggravated felonies where the law in effect at the time of their guilty pleas would have rendered them eligible, not all aliens who pleaded guilty to aggravated offenses.
Vo contends that the fact that there is no ground of inadmissibility that recites the wоrds “aggravated felony” means that § 1212.3(f)(4) is rendered superfluous by the BIA’s interpretation of § 1212.3(f)(5). BIA precedent, however, contradicts this assertion. For example, in Meza, 20 I. & N. Dec. 257, the BIA held that § 212(c) relief remained available for an alien convicted of a drug-related aggravated felony because there was a comparable ground of inadmissibility under § 212(a)(23) for a violation of laws relating to controlled substances. Although the provision did not contain the words “aggravated felony,” the close textual link rendered the two provisions statutory counterparts. There is no such link between Vo’s crime, UUV, and any specific ground of inadmissibility under § 212(a), aside from claiming it is a crime involving moral turpitude.
5. Equal Protection
Finally, Vo argues that barring § 212(c) relief to aliens in his position violates equal protection as set out by the Secоnd Circuit in
Francis,
This court rejected a similar argument in
Requena-Rodriguez v. Pasquarell,
*372
Additionally, in the immigration context, there is a particular need for courts to defer to congressional choices.
See Requena-Rodriguez,
III. CONCLUSION
By its terms, § 212(c) applies only to a limited class of excludable aliens; it was a judicial extension that required it to be made available to deportees. As this court held in De La Paz Sanchez, supra, we decline to extend § 212 even further. We must cоnstrue it consistent with its terminology, lest the administrative and judicial extension of the waiver remedy become even less moored to the statute in which it originated. Vo’s crime of UUV does not have a comparable ground of inadmissibility under § 212(a). He is therefore ineligible for a § 212(c) waiver, and his petition for review of the BIA’s decision is DENIED.
Notes
. We note that two companion cases,
Avilez-Granados v. Gonzales,