Abebe v. Mukasey ( 2008 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    YEWHALASHET ABEBE,                   
    Petitioner,        No. 05-76201
    v.
         Agency No.
    A26-810-941
    MICHAEL B. MUKASEY, Attorney
    General,                                    OPINION
    Respondent.
    
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    March 25, 2008—San Francisco, California
    Filed November 20, 2008
    Before: Alex Kozinski, Chief Judge, Harry Pregerson,
    Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman,
    Ronald M. Gould, Richard C. Tallman, Richard R. Clifton,
    Consuelo M. Callahan, Carlos T. Bea and N. Randy Smith,
    Circuit Judges.
    Per Curiam Opinion;
    Concurrence by Judge Clifton;
    Dissent by Judge Thomas
    15655
    15658                     ABEBE v. MUKASEY
    COUNSEL
    Robert B. Jobe and Fatma Marouf, Law Office of Robert B.
    Jobe, San Francisco, California, for the petitioner.
    Thomas H. Dupree, Jr., Deputy Assistant Attorney General;
    Peter D. Keisler, Assistant Attorney General; M. Jocelyn
    Lopez Wright, Assistant Director, Office of Immigration Liti-
    gation; Song E. Park, Office of Immigration Litigation, Wash-
    ington, DC, for the respondent.
    OPINION
    PER CURIAM:
    1. Petitioner became a lawful permanent resident in 1984
    and, in 1992, pled guilty to lewd and lascivious conduct upon
    a child. 
    Cal. Penal Code § 288
    (a). INS commenced removal
    proceedings on the ground that he was deportable as having
    committed       an   “aggravated      felony,”    
    8 U.S.C. § 1227
    (a)(2)(A)(iii)—“sexual abuse of a minor,” 
    id.
    § 1101(a)(43)(A). The Immigration Judge (IJ) denied petition-
    er’s asylum, withholding of removal and Convention Against
    Torture claims, and found petitioner ineligible for a discre-
    tionary waiver of deportation under former Immigration and
    Nationality Act § 212(c), 
    8 U.S.C. § 1182
    (c) (repealed 1996).1
    On appeal to the Board of Immigration Appeals (BIA), peti-
    tioner argued that he’s eligible for section 212(c) relief. The
    BIA affirmed, and Abebe petitions for review.
    2. Petitioner argues that, by finding him ineligible for sec-
    1
    Even though section 212(c) was repealed by the Illegal Immigration
    Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-
    208, the Supreme Court held that this repeal can’t be applied retroactively
    to aliens, such as petitioner, who pled guilty to deportable crimes before
    IIRIRA took effect. INS v. St. Cyr, 
    533 U.S. 289
    , 326 (2001).
    ABEBE v. MUKASEY                         15659
    tion 212(c) relief, the BIA denied him equal protection. Rely-
    ing on Komarenko v. INS, 
    35 F.3d 432
    , 434-35 (9th Cir.
    1994), the three-judge panel held that petitioner isn’t eligible
    for section 212(c) relief. Abebe v. Gonzales, 
    493 F.3d 1092
    ,
    1104-05 (9th Cir. 2007), vacated, 
    514 F.3d 909
     (9th Cir.
    2008). Under Komarenko, 
    35 F.3d at 434-35
    , a deportable
    alien can only be eligible for section 212(c) relief if his
    grounds for deportation are substantially identical to a ground
    for inadmissibility.2 Here, petitioner is deportable for commit-
    ting an “aggravated felony,” 
    8 U.S.C. § 1227
    (a)(2)(A)(iii),
    which the panel held isn’t substantially identical to the most
    analogous ground for inadmissibility—committing a “crime
    involving moral turpitude,” 
    id.
     § 1182(a)(2)(A)(i)(I). Abebe,
    
    493 F.3d at 1104-05
    . Petitioner claims that the rationale of
    Komarenko can’t be squared with that of Tapia-Acuna v. INS,
    
    640 F.2d 223
    , 225 (9th Cir. 1981). He therefore asks us to
    overrule Komarenko, and hold that a deportable alien can only
    be eligible for section 212(c) relief if his conviction is sub-
    stantially identical to a ground for inadmissibility. See Abebe,
    
    493 F.3d at 1106
     (Berzon, J., concurring).
    [1] Under its plain language, section 212(c) only gives the
    Attorney General discretion to grant lawful permanent resi-
    dents relief from inadmissibility3 —not deportation. See 
    8 U.S.C. § 1182
    (c) (repealed 1996). Tapia-Acuna, though, fol-
    lowed Francis v. INS, 
    532 F.2d 268
    , 273 (2d Cir. 1976), and
    2
    Inadmissibility (or “exclusion” under pre-IIRIRA law) applies to an
    alien outside the United States who is not allowed to enter, 
    8 U.S.C. § 1182
    (a), whereas deportation applies to an alien who is already in the
    United States and is ejected, 
    id.
     § 1227. See Guzman-Andrade v. Gon-
    zales, 
    407 F.3d 1073
    , 1076 (9th Cir. 2005). Under IIRIRA, both inadmis-
    sible and deportable aliens go through the same process, called “removal
    proceedings.” 
    Id.
     (citing Romero-Torres v. Ashcroft, 
    327 F.3d 887
    , 889
    (9th Cir. 2003)).
    3
    IIRIRA changes somewhat the nomenclature applicable to immigration
    cases. What used to be “excludability” is now “inadmissibility”; what used
    to be “deportation” is now “removal.” We use these terms interchange-
    ably.
    15660                      ABEBE v. MUKASEY
    held that equal protection required us to extend section 212(c)
    relief to aliens facing deportation—if such aliens would have
    been eligible for section 212(c) relief from inadmissibility,
    had they left the United States and attempted to reenter.
    Tapia-Acuna, 
    640 F.2d at 225
    . In following Francis, Tapia-
    Acuna reasoned that there is no rational basis for granting
    additional immigration relief to aliens who temporarily leave
    the United States and try to reenter (i.e., aliens facing inad-
    missibility), than to aliens who remain in the United States
    (i.e., aliens facing deportation). Tapia-Acuna, 
    640 F.2d at 225
    . According to Francis and Tapia-Acuna, it is wholly irra-
    tional for Congress to give any advantage to aliens outside the
    United States that it denies to similarly situated aliens within
    the United States.
    [2] We are not convinced that Francis and Tapia-
    Acuna accorded sufficient deference to this complex legisla-
    tive scheme, and therefore reconsider this question, as we are
    authorized to do en banc. We note at the outset that the statute
    doesn’t discriminate against a discrete and insular minority or
    trench on any fundamental rights, and therefore we apply a
    standard of bare rationality. United States v. Barajas-Guillen,
    
    632 F.2d 749
    , 752 (9th Cir. 1980) (quoting Alvarez v. Dist.
    Dir. of the U.S. INS, 
    539 F.2d 1220
    , 1224 (9th Cir. 1976)).
    Congress has particularly broad and sweeping powers when
    it comes to immigration, and is therefore entitled to an addi-
    tional measure of deference when it legislates as to admission,
    exclusion, removal, naturalization or other matters pertaining
    to aliens. See Kleindienst v. Mandel, 
    408 U.S. 753
    , 769-70
    (1972); Boutilier v. INS, 
    387 U.S. 118
    , 123-24 (1967); Flem-
    ming v. Nestor, 
    363 U.S. 603
    , 616 (1960). Our task, therefore,
    is to determine, not whether the statutory scheme makes sense
    to us, but whether we can conceive of a rational reason Con-
    gress may have had in adopting it.4
    4
    In making this determination, we do not look to the actual rationale for
    the legislation, as it is often very difficult or impossible to determine what
    ABEBE v. MUKASEY                          15661
    [3] We can: Congress could have limited section 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.” Requena-Rodriguez v. Pasquarell, 
    190 F.3d 299
    , 309 (5th Cir. 1999) (quoting LaGuerre v. Reno, 
    164 F.3d 1035
    , 1041 (7th Cir. 1998)); see DeSousa v. Reno, 
    190 F.3d 175
    , 185 (3d Cir. 1999). A deportable alien who wishes to
    obtain section 212(c) relief will know that he can’t obtain
    such relief so long as he remains in the United States; if he
    departs the United States, however, he could become eligible
    for such relief. By encouraging such self-deportation, the gov-
    ernment could save resources it would otherwise devote to
    arresting and deporting these aliens. See Jurado-Gutierrez v.
    Greene, 
    190 F.3d 1135
    , 1153 (10th Cir. 1999), abrogated in
    part by INS v. St. Cyr, 
    533 U.S. 289
    , 326 (2001). Saving
    scarce resources that would otherwise be paid for by taxpay-
    ers is certainly a legitimate congressional objective.
    [4] We thus overrule Tapia-Acuna’s holding that there’s no
    rational basis for providing section 212(c) relief from inad-
    missibility, but not deportation. The BIA therefore didn’t vio-
    late petitioner’s right to equal protection by finding him
    ineligible for section 212(c) relief from deportation. Since
    petitioner was not eligible for section 212(c) relief in the first
    place, the BIA could not have committed an equal protection
    violation by denying him such relief. We affirm the BIA’s
    section 212(c) ruling, and have no reason to reconsider
    Komarenko.        Indeed,     under     our    ruling      today,
    a collective body, such as Congress, has in mind. The task would be par-
    ticularly difficult in a case like ours where the statutory scheme now in
    force is the product of repeated layers of congressional enactments and
    judicial interpretations, so it is quite likely that no one anticipated the
    existing Byzantine structure. Our inquiry therefore focuses on whether a
    hypothetically rational Congress could have adopted the statutory scheme,
    not on whether Congress actually adopted the statute with that particular
    reason in mind.
    15662                     ABEBE v. MUKASEY
    Komarenko becomes a dead letter, as its only purpose was to
    fill a gap created by Tapia-Acuna.
    [5] 3. Petitioner also argues that the IJ erred by denying his
    claim for withholding of removal. But petitioner didn’t raise
    a withholding of removal claim in his brief before the BIA,
    and the BIA was therefore not required to consider it. See,
    e.g., Bowers v. Nat’l Collegiate Athletic Ass’n, 
    475 F.3d 524
    ,
    535 n.11 (3d Cir. 2007) (issues raised in the notice of appeal
    but not argued in appellant’s principal brief are deemed aban-
    doned). When a petitioner files no brief and relies entirely on
    the notice of appeal to make an immigration argument, as he
    may do before the BIA, see 
    8 C.F.R. § 1003.38
    (f), then the
    notice of appeal serves in lieu of a brief, and he will be
    deemed to have exhausted all issues raised therein. But when
    a petitioner does file a brief, the BIA is entitled to look to the
    brief for an explication of the issues that petitioner is present-
    ing to have reviewed. Petitioner will therefore be deemed to
    have exhausted only those issues he raised and argued in his
    brief before the BIA. Here, petitioner did file a brief, which
    did not raise the withholding of removal issue. He therefore
    didn’t exhaust that claim, and we lack jurisdiction to review
    it. Barron v. Ashcroft, 
    358 F.3d 674
    , 677 (9th Cir. 2004) (cit-
    ing 
    8 U.S.C. § 1252
    (d)(1)). Ladha v. INS, 
    215 F.3d 889
    , 903
    (9th Cir. 2000), is overruled.
    PETITION DENIED IN PART and DISMISSED IN
    PART.5
    5
    For the reasons given in the three-judge panel opinion, the BIA didn’t
    erroneously or inconsistently apply 
    8 U.S.C. § 1182
    (c) (repealed 1996), or
    
    8 C.F.R. § 1213
    (f). Abebe, 
    493 F.3d at 1101-04
    . Likewise, we reject peti-
    tioner’s due process retroactivity argument. 
    Id. at 1105
    .
    ABEBE v. MUKASEY                          15663
    CLIFTON, Circuit Judge, with whom Circuit Judges
    SILVERMAN and GOULD join, concurring in the judgment:
    I concur in the judgment, denying in part and dismissing in
    part Yewhalashet Abebe’s petition for review. I do not join
    most of the majority opinion,1 however, because I believe it
    is both unnecessary and unwise to overrule our prior decision
    in Tapia-Acuna v. INS, 
    640 F.2d 223
     (9th Cir. 1981), to reach
    that result. The government has not advocated such a drastic
    step. The original decision by a three-judge panel of our court,
    Abebe v. Gonzales, 
    493 F.3d 1092
     (9th Cir. 2007), reached
    the same result in this case as the majority reaches today, sim-
    ply by applying our existing precedent, Komarenko v. INS, 
    35 F.3d 432
     (9th Cir. 1994). The en banc panel should do the
    same.
    I share the concern expressed in the dissent with overruling
    more than sixty years of agency precedent and more than
    twenty-seven years of our own precedent. I also share the fear
    that the path taken by the majority puts into jeopardy the
    agency’s ability to continue to grant discretionary relief in
    removal proceedings pursuant to 
    8 C.F.R. § 1212.3
    . Although
    the majority says otherwise, its interpretation of the statute
    appears to leave no room for that practice to continue. In addi-
    tion, I would prefer to avoid aggravating a circuit split with
    the numerous other courts that have adopted the same balance
    we struck in Komarenko.
    I nevertheless concur in the judgment because I conclude
    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. Abebe’s equal protection challenge therefore fails.
    Put another way, although I agree with most of Part I of the
    dissent, I disagree with Part II and do not believe we should
    1
    I do join in Part 3 of the majority opinion, because I agree that peti-
    tioner did not exhaust his withholding of removal claim before the agency.
    15664                  ABEBE v. MUKASEY
    overturn our decision in Komarenko and follow the Second
    Circuit’s recent decision in Blake v. Carbone, 
    489 F.3d 88
     (2d
    Cir. 2007). I would adhere to Komarenko and deny Abebe’s
    petition accordingly.
    I.
    As the dissent points out, since at least 1940 the Executive
    Branch (now in the form of the Department of Homeland
    Security, or DHS, and formerly through the Immigration and
    Naturalization Service, or INS) has interpreted the Immigra-
    tion and Nationality Act (INA) as granting it the discretion to
    afford relief from both deportation (of an alien inside the
    United States, a process now called removal) and exclusion
    (of an alien seeking admission to this country at the border,
    now described as inadmissibility). See Matter of L., 
    1 I. & N. Dec. 1
     (BIA 1940). Congress was aware of this practice when
    it drafted the 1952 amendments to the INA, including section
    212(c). See In the Matter of S., 
    6 I. & N. Dec. 392
    , 394-96
    (BIA 1955) (examining the legislative history). Although the
    amendments made it harder for aliens to qualify for such dis-
    cretionary relief, there is nothing in the legislative history,
    which catalogued other perceived abuses, to suggest that Con-
    gress disapproved of the government’s use of the predecessor
    to section 212(c) to grant waivers in deportation proceedings.
    This is among the reasons that the Board of Immigration
    Appeals held, shortly after the amendments’ passage, that the
    Attorney General retained the discretion under section 212(c)
    to grant relief in both deportation and exclusion proceedings.
    
    Id.
    Initially, the government permitted aliens to apply for relief
    from deportation only if they had temporarily left the country
    such that they might have been subject to exclusion. In 1981,
    we held in Tapia-Acuna that there was no rational basis in the
    context of section 212(c) for discriminating against aliens
    who had remained in the United States. Tapia-Acuna v. INS,
    
    640 F.2d 223
    , 225 (9th Cir. 1981).
    ABEBE v. MUKASEY                    15665
    Today, the majority holds that we were mistaken in Tapia-
    Acuna and that there is a legitimate basis for so limiting the
    availability of section 212(c) relief. Even assuming there are
    arguments in favor of that position, we rejected it twenty-
    seven years ago. There is no compelling reason to overturn
    that judgment now. No relevant circumstances have changed,
    and our decision has been on the books for nearly three dec-
    ades without causing any mischief in the law. The majority
    may be animated by a desire to avoid future problems or more
    expansive conceptions of equal protection, such as that
    expressed by the Second Circuit in Blake, but that appears to
    me to be an empty fear. We haven’t extended Tapia-Acuna’s
    rationale to other situations, and any putative harm in the
    future could more easily be avoided by continuing to limit
    that precedent to its context.
    The majority doesn’t quarrel with the legal rule of Tapia-
    Acuna, that the Equal Protection Clause prohibits irrational
    disparities in treatment. It simply disagrees with the applica-
    tion of that long-settled rule to a statutory provision that was
    repealed a dozen years ago. It disagrees that the disparate
    treatment our court previously concluded was irrational is, in
    fact, irrational. Reasonable minds may always disagree over
    the outcome of a close case, however, and our prior conclu-
    sion is consistent with the conclusions of every other circuit.
    I see no justification for saying now that all of those decisions
    were incorrect, especially when the vitality of section 212(c),
    a statute long since repealed, has already diminished to near
    insignificance. There is no pressing need to pay so little heed
    to the weight of precedent and correct what, at most, is simply
    a misapplication of an agreed upon rule.
    The “rational basis” the majority identifies in support of
    discriminating against aliens who failed to temporarily leave
    the United States after committing an offense that might qual-
    ify them for removal or inadmissibility relies on a tenuous
    chain of inferences. The majority hypothesizes that Congress
    anticipated that some aliens might decide to travel across the
    15666                     ABEBE v. MUKASEY
    border based on knowledge that, under the immigration stat-
    ute, they could be eligible for discretionary relief if they left
    the country and returned, but would not be so eligible if they
    did not leave the country. The majority further speculates that,
    from the group of aliens who left the country for this reason,
    some might be successfully stopped at the border upon their
    return and denied reentry, thereby saving the government the
    expense of having to later remove them. Perhaps. But it is not
    an accident that the majority opinion finds it necessary to
    acknowledge, at 15660-61, n.4, that it is not seeking to iden-
    tify the actual rationale for the legislation. I doubt that anyone
    believes that the majority’s tortured construct was in the mind
    of anybody on Capitol Hill. Justifications for overruling one
    of our court’s longstanding precedents should be made of
    sterner stuff. We might just as well say that Congress simply
    preferred to let the agency grant discretionary relief only to
    those aliens who love international travel. We must place
    some rational bounds on what survives rational basis review
    if the constitutional right of equal protection is to have any
    meaning whatsoever outside the context of suspect classifica-
    tions.2
    Not only does the majority overrule our precedent, it casts
    doubt on DHS’s power to grant section 212(c) relief in depor-
    tation or removal proceedings. It concludes that “[u]nder its
    plain language, section 212(c) only gives the Attorney Gen-
    eral discretion to grant lawful permanent residents relief from
    inadmissibility—not deportation.” Majority Op. at 15659
    (emphasis in original). In doing so, the majority holds that
    sixty-eight years of agency practice was contrary to the will
    of Congress and in violation of the plain language of the stat-
    2
    Perhaps the majority believes that equal protection should have force
    only in cases involving some form of invidious discrimination, and that all
    laws should survive rational basis review, but this case is a particularly
    poor vehicle to stake out that position given the growing irrelevance of
    section 212(c) and the need to break away from all of our sister circuits
    and reverse our own precedent to do so.
    ABEBE v. MUKASEY                    15667
    ute the agency is charged with interpreting, and that countless
    otherwise deportable or removable aliens have remained in
    this country due to the agency’s error.
    Later, when addressing the dissent, the majority says other-
    wise and contends that nothing in the opinion undermines the
    validity of 
    8 C.F.R. § 1212.3
    (f)(5). That regulation codifies
    DHS’s approach, which we approved of in Komarenko, of
    limiting the availability of section 212(c) relief in removal
    proceedings to aliens charged with removal on a ground that
    has a substantially identical statutory counterpart in the INA’s
    inadmissibility provisions (the “statutory counterpart rule”). 
    8 C.F.R. § 1212.3
    (f)(5); Komarenko v. INS, 
    35 F.3d 432
    , 434
    (9th Cir. 1994). But if the statute itself does not authorize
    DHS to grant section 212(c) relief in any removal proceedings
    whatsoever, as the majority holds, where does authority to
    grant similar relief from inadmissibility come from?
    It is not an answer to say that the government may choose
    to treat different classes or aliens the same. The statute in
    question is one that authorizes INS (now DHS) to grant dis-
    cretionary waivers to persons in exclusion proceedings. If the
    agency had the authority to grant discretionary waivers to
    everyone, including persons in deportation proceedings,
    whether or not the statute provides such authority, then there
    would be no reason for the statute in the first place. The
    whole thrust of the majority’s reasoning is that Congress, in
    adopting the relevant statute, could rationally distinguish
    between deportation and exclusion proceedings and could
    limit the ability of INS to grant discretionary waivers only to
    those in exclusion proceedings. Under the reasoning of the
    majority, the agency does not have the authority to grant such
    waivers to aliens in deportation proceedings, and if that’s the
    case, 
    8 C.F.R. § 1212.3
    (f)(5) serves no purpose.
    Finally, not only has every circuit to consider the question
    accepted Tapia-Acuna’s conclusion that section 212(c) relief
    is available in deportation and removal proceedings regardless
    15668                  ABEBE v. MUKASEY
    of whether an alien has left the country, but every circuit to
    consider the question except the Second Circuit, see Blake,
    
    489 F.3d at 104
    , has also followed Komarenko and upheld the
    constitutionality of DHS’s statutory counterpart rule. See Kim
    v. Gonzales, 
    468 F.3d 58
    , 62-63 (1st Cir. 2006); Caroleo v.
    Gonzales, 
    476 F.3d 158
    , 162-63 (3rd Cir. 2007); Brieva-Perez
    v. Gonzales, 
    482 F.3d 356
    , 362 (5th Cir. 2007); Gjonaj v. INS,
    
    47 F.3d 824
    , 827 (6th Cir. 1995) (“Numerous courts have
    held there must be a comparable ground of exclusion for an
    alien in deportation proceedings to be eligible for [section]
    212(c) relief. We decline to change this well-established
    rule.”); Valere v. Gonzales, 
    473 F.3d 757
    , 762 (7th Cir. 2007)
    (holding that if “the removable alien’s crime of conviction is
    not substantially equivalent to a ground of inadmissibility . . .
    then the removable alien is not similarly situated for purposes
    of claiming an equal protection right to apply for § 212(c)
    relief”); Soriano v. Gonzales, 
    489 F.3d 909
     (8th Cir. 2006);
    Rodriguez-Padron v. INS, 
    13 F.3d 1455
    , 1459 (11th Cir.
    1994); see also Zamora-Mallari v. Mukasey, 
    514 F.3d 679
    ,
    691-92 (7th Cir. 2008) (rejecting the reasoning of the Second
    Circuit’s decision in Blake); Vue v. Gonzales, 
    496 F.3d 858
    ,
    860-62 (8th Cir. 2007) (same). In overruling Tapia-Acuna and
    discarding Komarenko as a dead letter, the majority creates a
    three-way circuit split between those circuits that follow
    Komarenko, those that follow Tapia-Acuna but not
    Komarenko, and our court. Because I can discern no good rea-
    son to abandon our sister circuits after they have faithfully
    accompanied us down this now well-worn path, I cannot join
    the majority opinion.
    II.
    Turning to the merits of Abebe’s equal protection chal-
    lenge, the dissent states that “[i]n cases such as this, it is the
    act or offense itself that makes one alien similarly situated to
    another, not the grounds the government chooses to use to
    deport the aliens.” Dissent at 15679. I disagree.
    ABEBE v. MUKASEY                    15669
    The government sought to remove Abebe on two indepen-
    dent grounds: (1) his two convictions for committing crimes
    involving moral turpitude (CIMTs) and (2) his conviction for
    committing an aggravated felony. Abebe argues that his
    aggravated felony conviction could also qualify as a CIMT
    and that, if the government had sought to remove him solely
    for CIMTs, which can also render an alien eligible for exclu-
    sion, then he would have been eligible for discretionary relief
    under section 212(c). He contends that DHS’s statutory coun-
    terpart rule violates his right to equal protection under the Due
    Process Clause because it denies him the benefit of section
    212(c) relief simply because the government chose to remove
    him as an aggravated felon instead of an alien who had com-
    mitted CIMTs. Abebe asks that the court impose a rule under
    which an immigration judge would be forced to determine
    whether, given a particular conviction, the government could
    have sought to remove an alien on a ground equivalent to a
    ground for inadmissibility.
    Abebe cannot demonstrate that he has been irrationally sub-
    jected to discriminatory treatment, however, because he can-
    not show that he was in the same position as an alien who was
    charged with removal on a substantially similar ground to a
    ground for inadmissibility. Put simply, two aliens who have
    been charged with removal on different statutory grounds are
    not similarly situated. That the underlying facts are such that
    the government could have charged them with removal under
    similar statutory grounds is not enough. If that rule were
    adopted, it would create a host of problems in countless situa-
    tions, predictable and unpredictable, where the government is
    vested with, and exercises, discretion. To take the most obvi-
    ous example, imagine the quotidian circumstance of a prose-
    cutor faced with the decision of what charges to bring against
    an individual based on a given set of facts. Each charge will
    carry different consequences, but a defendant cannot contest
    the charges actually brought against him by arguing that the
    government could have charged him with a different offense
    under a different statutory provision.
    15670                  ABEBE v. MUKASEY
    Congress has vested the executive branch with discretion in
    whether, when, and how to charge an alien with removal.
    How it exercises that discretion will have a serious impact on
    the life of a removable alien, whether it means forcible
    removal from the country or the availability of section 212(c)
    relief. To hold that the exercise of that discretion is unconsti-
    tutional where it is not exercised in the most advantageous
    way possible for a given alien under the circumstances would
    open the door to a torrent of claims. An alien is no more enti-
    tled to section 212(c) relief when charged with a ground of
    removal that has no statutory counterpart under the INA’s
    inadmissibility provisions than a defendant is entitled to a
    sentencing range consistent with the least serious crime with
    which he could have been charged.
    This is not to say that the executive branch’s exercise of
    discretion is without constitutional limits. We have permitted
    claims to proceed against prosecutors whose decisions were
    allegedly made on the basis of sex, race, or religion. United
    States v. Redondo-Lemos, 
    955 F.2d 1296
    , 1300 (9th Cir.
    1992), overruled on other grounds by United States v. Arm-
    strong, 
    48 F.3d 1508
     (9th Cir. 1995) (en banc), rev’d, 
    517 U.S. 456
     (1996). Absent evidence of discrimination against a
    suspect class, however, there is no judicial remedy for even
    arbitrary charging or plea bargaining decisions, even though
    “such an arbitrary exercise of power would be a Due Process
    violation.” Morris v. U.S. Dist. Court, 
    363 F.3d 891
    , 896 (9th
    Cir. 2004) (citing Redondo-Lemis, 
    955 F.2d at 1300
    ). This is
    because judicial inquiry “into prosecutors’ decision-making
    processes would entangle [courts] ‘in the core decisions of
    another branch of government,’ ” raising separation-of-
    powers concerns. 
    Id.
    In Komarenko, this court provided additional, pragmatic
    reasons for denying section 212(c) relief to an alien charged
    with deportation under a subsection of the former deportation
    statute that was not “substantially identical” to a subsection of
    the former exclusion statute. Like Abebe, the petitioner in
    ABEBE v. MUKASEY                    15671
    Komarenko argued that his underlying conviction could have
    qualified as a CIMT, a statutory ground for exclusion, which
    would have made him eligible for section 212(c) relief. The
    court held that the two grounds were “entirely dissimilar” and
    that “the distinction between the two classes is not arbitrary
    or unreasonable.” 
    35 F.3d at
    435 (citing Campos v. INS, 
    961 F.2d 309
    , 316 (1st Cir. 1992) (“We cannot say that it is absurd
    that for purposes of discretionary deportation review Con-
    gress chooses to treat different crimes differently.”)). We
    declined to engage in speculation over whether a particular
    alien “could have been excluded under the moral turpitude
    provision,” and noted that adopting the petitioner’s proposed
    approach “would extend discretionary review to every ground
    for deportation that could constitute the essential elements of
    a crime involving moral turpitude.” 
    Id.
     (emphasis in original)
    (internal quotation marks omitted). The court concluded that
    “[s]uch judicial legislating would vastly overstep our limited
    scope of judicial inquiry into immigration legislation, and
    would interfere with the broad enforcement powers Congress
    has delegated to the Attorney General.” 
    Id.
     (internal citations
    and quotation marks omitted). This reasoning applies with
    equal force today and, as discussed above, six of the seven
    other circuits to face the question have reached the same
    result.
    This is not a situation, as the dissent contends, where two
    lawful permanent residents are being treated differently
    because one chose to “step across the border for a day.” Dis-
    sent at 15672. It is a situation where two individuals are being
    treated differently because the charges against them are mate-
    rially different, and different charges bring different conse-
    quences. This simple fact is as true in immigration
    proceedings as it is in criminal law. We cannot look only to
    the underlying conduct; rather, the consequences that ulti-
    mately flow from an individual’s actions depend heavily on
    the government’s exercise of its charging discretion.
    Here, Abebe had a number of prior convictions. The gov-
    ernment could have chosen to seek removal based on (1) his
    15672                  ABEBE v. MUKASEY
    convictions for CIMTs, (2) his aggravated felony conviction,
    or (3) both. It chose option three, aggressively seeking
    removal on every available ground. The court should not put
    immigration judges in the business of second-guessing such
    charging decisions. In light of how the government chose to
    charge Abebe with removal, he was not similarly situated to
    an alien charged with being inadmissible, or an alien charged
    with removal on a ground with a statutory counterpart in the
    INA’s inadmissibility provisions, and his equal protection
    challenge fails.
    I therefore concur in the judgment of the court.
    THOMAS, Circuit Judge, with whom PREGERSON, Circuit
    Judge, joins, dissenting:
    Distilled to its essence, this case involves the irrationality
    of affording privileges to lawful permanent residents who step
    across the border for a day, but denying the same privileges
    to those who do not. The majority not only blesses this
    unequal treatment, but goes much further, overruling more
    than 60 years of precedent, approving an unconstitutional stat-
    utory scheme not even the Board of Immigration Appeals
    endorses, and implicitly declaring unconstitutional a federal
    regulation.
    I respectfully dissent.
    I
    First, some background. Prior to enactment of the Illegal
    Immigration Reform and Immigrant Responsibility Act in
    1996 (“IIRIRA”), there were separate procedures and substan-
    tive rules relating to (1) the deportation of persons already
    present in the United States, and (2) the exclusion of persons
    seeking entry. Armendariz-Montoya v. Sonchik, 291 F.3d
    ABEBE v. MUKASEY                    15673
    1116, 1122 (9th Cir. 2002). The INA defined deportable
    aliens in § 241, 
    8 U.S.C. § 1251
     (transferred to § 237, 
    8 U.S.C. § 1227
    ), and excludable aliens in § 212(a), 
    8 U.S.C. § 1182
    . The exclusion procedures did not only apply to those
    seeking entry into the United States in the first instance. If a
    non-citizen residing in the United States temporarily left the
    country, he could be excluded from re-entry. Lawful perma-
    nent residents (“LPRs”) are, of course, non-citizens who have
    successfully satisfied statutory requirements and earned the
    favorable exercise of discretion by the government to be
    allowed to reside in the United States permanently. Although
    a permanent resident, an LPR still could be deported if he
    committed a qualifying crime. If he left the country temporar-
    ily, he could also be excluded upon return if he had commit-
    ted a qualifying offense. An LPR, as a non-citizen seeking
    entry, would generally be subject to the same proceedings and
    grounds of exclusion if he traveled abroad and returned to the
    United States. See INA §§ 101(a)(3) & (13), 
    66 Stat. 166
    , 167
    (1952). Facing a large volume of cases in which a waiver of
    exclusion was sought in compassionate cases involving LPRs,
    Congress afforded certain qualifying LPRs the protection of
    subsection (c):
    Aliens 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 consecutive years, may be admitted in the dis-
    cretion of the Attorney General without regard to the
    provisions of paragraph (1) through (25) and para-
    graphs (30) and (31) of subsection (a).
    INA § 212(c), 
    66 Stat. 187
    .
    By its terms, former INA § 212(c), 
    8 U.S.C. § 1182
    (c)
    (repealed 1996), applies only to persons in exclusion proceed-
    ings. The Board of Immigration Appeals (“BIA”) first recog-
    nized a problem with making section 212(c) relief available
    15674                    ABEBE v. MUKASEY
    to excludables but not deportables in 1940, in the context of
    section 212(c)’s precursor statute.1 See Matter of L, 
    1 I. & N. Dec. 1
     (1940). In Matter of L, the BIA held that relief under
    section 212(c)’s precursor was available in a deportation pro-
    ceeding where the alien had departed and returned to the
    United States after the ground for exclusion/deportation arose.
    To hold otherwise, the BIA noted, would render the statute
    “capricious and whimsical.” 
    Id. at 5
    . The Second Circuit took
    this interpretation to its logical extension in Francis, 
    532 F.2d 268
    , holding that section 212(c) relief must be available to all
    persons in deportation proceedings who would be excludable
    on the same grounds, not just those who had actually left the
    country and reentered. Immediately following Francis, the
    BIA embraced the Francis analysis. Matter of Silva, 
    16 I. & N. Dec. 26
    , 30 (BIA 1976).
    When the question then reached our Court, the matter had
    been so clearly determined that when we initially affirmed, in
    an unpublished disposition, a denial of section 212(c) relief to
    an alien in a deportation proceeding, the Supreme Court
    granted certiorari and remanded the case to us for reconsider-
    ation in light of the Solicitor General’s position in its brief
    before the Supreme Court. The Solicitor General’s Brief on
    Petition for a Writ of Certiorari asserted “the government’s
    current position that those precedents [which limit section
    212(c) to exclusion proceedings] are erroneous and should be
    overruled.” Brief for the Respondent at 6, Tapia-Acuna v.
    INS, 
    449 U.S. 945
     (1980). The Solicitor General further stated
    that “[i]n the government’s view, the Ninth Circuit’s position
    is without support in either the statutory language of [section
    212(c)] or the case law on which the court of appeals has
    relied.” 
    Id. at 6
    . On remand, we followed Francis and held
    that “eligibility for [§ 212(c)] relief cannot constitutionally be
    denied to an otherwise eligible alien who is deportable under
    1
    Section 212(c) grew out of the Seventh Proviso to Section 3 of the
    Immigration Act of 1917, 
    39 Stat. 874
    . See Francis v. INS, 
    532 F.2d 268
    (2d Cir. 1976).
    ABEBE v. MUKASEY                    15675
    [§ 241(a)(11) (narcotics conviction)], whether or not the alien
    has departed from and returned to the United States after the
    conviction.” Tapia-Acuna v. INS, 
    640 F.2d 223
    , 225 (9th Cir.
    1981).
    To this date, every court to consider the issue has deter-
    mined that due process requires that section 212(c) must be
    applied to deportation proceedings as well as exclusion pro-
    ceedings. See Blake v. Carbone, 
    489 F.3d 88
    , 103-04 (2d Cir.
    2007) (discussing cases).
    A
    Our sister circuits are right. The Supreme Court has long
    held that the constitutional promise of equal protection of the
    laws applies to aliens as well as citizens. Yick Wo v. Hopkins,
    
    118 U.S. 356
     (1886). Under the minimal scrutiny test, which
    is applicable in this case, distinctions between different
    classes of persons “must be reasonable, not arbitrary, and
    must rest upon some ground of difference having a fair and
    substantial relation to the object of the legislation, so that all
    persons similarly circumstanced shall be treated alike.” Stan-
    ton v. Stanton, 
    421 U.S. 7
    , 14 (1975). As the Second Circuit
    recognized in Francis, “[r]eason and fairness would suggest
    that an alien whose ties with this country are so strong that he
    has never departed after his initial entry should receive at least
    as much consideration as an individual who may leave and
    return from time to time.” 
    532 F.2d at 273
    .
    Throughout this litigation, the government has been unable
    to provide a rational basis for this unequal treatment. The
    majority attempts to conjure one, urging that the rational basis
    for making section 212(c) relief available only to aliens in
    exclusion proceedings is to encourage “self-deportation” and
    thus save government resources. There is no record support
    for this rationale, and the majority’s reasoning contains two
    fundamental flaws. First, there is no support for the conten-
    tion that encouraging “self-deportation,” as described by the
    15676                      ABEBE v. MUKASEY
    majority, would actually further the interest of saving govern-
    ment resources. Second, the rational reason the majority pre-
    scribes to Congress presumes an interest which is actually in
    conflict with the statute itself. While the majority correctly
    notes that we do not have to look to the actual rationale for
    the legislation, in order to be rational, the reason must be con-
    sistent.
    When an LPR leaves and attempts to reenter the country
    and is deemed excludable yet potentially eligible for a section
    212(c) waiver, the LPR is generally allowed to enter and to
    apply for the waiver from within the country. If the alien is
    ultimately denied the waiver, the government must remove
    him. No fewer government resources are exerted than if the
    alien applied for a § 212(c) waiver during a deportation pro-
    ceeding. Moreover, if the statute were to actually function as
    the majority presumes and encourage aliens to voluntarily
    place themselves in this position—a contention which I find
    dubious—this would increase the number of removal pro-
    ceedings, which would, in turn, spend more government
    resources.2 There is no support in the record for the assertion
    that treating returning LPRs differently from those who
    remain would save government resources.
    Second, implicit in the majority’s argument that a rational
    Congress would want to encourage aliens who are excludable
    but eligible for section 212(c) waiver to place themselves in
    2
    The majority responds that the government may “exclude those it
    believes are less likely to obtain relief.” If we are going to assume that
    LPRs will be fully informed, in advance, about the differing availabilities
    of relief in deportation and exclusion proceedings and will make rational,
    calculated decisions about voluntarily leaving the country in order to initi-
    ate an exclusion proceeding, we should also assume these individuals will
    take into account the likelihood of obtaining relief. Those unlikely to
    obtain relief are equally unlikely to take the risk of leaving the country.
    The majority’s speculation does nothing to undermine the point that there
    is no support for the notion that encouraging “self-deportation” will save
    government resources.
    ABEBE v. MUKASEY                            15677
    exclusion proceedings is the assumption that a rational Con-
    gress would want these persons to leave the country. This is
    inconsistent with the fact that, by creating section 212(c)
    waiver, Congress explicitly identified this group of aliens as
    desirable for reentry to the country, subject to the Attorney
    General’s discretion. This is not a group of aliens who, if they
    are identified, will necessarily be removed from the country.
    Rather, this is a group of aliens whom Congress has deemed
    worthy to remain in the country, in spite of having been con-
    victed of particular crimes.3 This is the group that is being
    sorted based on whether or not they have recently departed
    and reentered the country. There is simply no logical reason
    to discriminate between persons whom Congress has deemed
    worthy—subject to the discretion of the Attorney General—of
    remaining in the country based on whether or not they have
    recently departed the country.4 As low a threshold as the ratio-
    nal basis test is, this statutory scheme does not pass.
    B
    The majority’s dismissal of the constitutional problem in
    the text of section 212(c) also implicitly casts considerable
    3
    At the risk of stating the obvious, making section 212(c) relief avail-
    able only in exclusion proceedings would not encourage aliens to leave the
    country permanently, but would only encourage them—again, if at all—to
    leave and immediately reenter so as to take advantage of section 212(c)
    waiver.
    4
    The majority responds that “it makes perfect sense to want [an LPR]
    to be outside our borders when” he learns that he will not receive relief.
    However, as discussed above, an LPR who is stopped at the border for
    being excludable but who is also eligible for § 212(c) relief will generally
    be admitted and continue the relief application from within the country.
    Thus, if he is ultimately denied relief, he will, in fact, be inside our borders
    when he gets “the bad news.”
    The majority, I respectfully suggest, quotes Judge Posner out of context.
    Judge Posner was addressing the rationale for allowing the option of vol-
    untary departure, which occurs after a deportation proceeding has been
    initiated. See LaGuerre v. Reno, 
    164 F.3d 1035
    , 1041 (7th Cir. 1998).
    15678                    ABEBE v. MUKASEY
    doubt on the constitutionality of a federal regulation. After the
    Supreme Court held that IIRIRA does not apply retroactively
    to deny section 212(c) relief to aliens who plead guilty to a
    charge which would otherwise make them eligible for a sec-
    tion 212(c) waiver prior to the enactment of IIRIRA, INS v.
    St. Cyr, 
    533 U.S. 289
     (2001), the Department of Homeland
    Security (“DHS”) promulgated 
    8 C.F.R. § 1212.3
     to codify
    the holding in St. Cyr. That regulation provides that, assuming
    an alien in a deportation proceeding meets other requirements,
    the alien is eligible for section 212(c) relief unless “[t]he alien
    is deportable under former section 241 of the Act or remov-
    able under section 237 of the Act on a ground which does not
    have a statutory counterpart in section 212 of the Act.” 
    8 C.F.R. § 1212.3
    (f)(5).5 The regulation thus proceeds on the
    long-standing assumption, which the majority has now over-
    ruled in our Circuit, that section 212(c) is applicable to both
    deportation and exclusion proceedings.
    By holding that the statutory language of section 212(c) is
    clear and that Francis and Tapia-Acuna did not “accord[ ]
    sufficient deference” to Congress, the majority has implicitly
    questioned DHS’s authority to enact the above regulation. See
    Chevron U.S.A., Inc. v. Natural Resources Defense Council,
    Inc., 
    467 U.S. 837
    , 842-843 (1984) (“If the intent of Congress
    is clear, that is the end of the matter; for the agency, must give
    effect to the unambiguously expressed intent of Congress.”).
    Under the majority rule, the regulation that has been applied
    in thousands of cases cannot survive. Those who were eligible
    to apply for relief yesterday under the regulation are on very
    uncertain ground today.
    C
    There is, in sum, no reason to depart from our long-
    established precedent, developed over many decades in this
    5
    The BIA relied on this regulation in affirming the denial of section
    212(c) relief to Abebe.
    ABEBE v. MUKASEY                    15679
    Circuit and every other. The BIA has acted in reliance on it,
    and the government has exercised its discretion based on this
    precedent to grant relief to thousands of individuals. There is
    no justification for casting the system aside now and throwing
    thousands of pending applications for section 212(c) relief
    into question, particularly when it is unnecessary to the reso-
    lution of this petition to do so.
    II
    Applying the constitutional analysis discussed in Part I to
    the present case, I would hold that Abebe is eligible for sec-
    tion 212(c) relief because the specific offense which makes
    him deportable would also make him excludable. Equal pro-
    tection demands that we treat equally aliens similarly situated.
    In cases such as this, it is the act or offense itself that makes
    one alien similarly situated to another, not the grounds the
    government chooses to use to deport the aliens. To clarify our
    caselaw and to bring it into proper constitutional alignment,
    I would overrule Komarenko v. INS, 
    35 F.3d 432
     (9th Cir.
    1994) (applying a comparable grounds test), and follow the
    lead of the Second Circuit’s well-articulated opinion in Blake,
    
    489 F.3d 88
     (applying an offense-specific test).
    As Judge Berzon explained in her thoughtful concurrence
    to the panel opinion in this case, the comparable ground
    approach adopted in Komarenko is irreconcilable with the
    equal protection analysis discussed in Part I, supra, and in
    Tapia-Acuna. Indeed, the comparable ground approach
    creates new problems. Just as the distinction between deport-
    able aliens who are alike except that one temporarily left the
    country while the other did not is arbitrary, the comparable
    grounds test turns on equally arbitrary grounds.
    Consider Alien A, who commits assault with a deadly
    weapon. He is deportable because his offense falls into the
    category “aggravated felonies.” He is also excludable because
    that same offense falls into the category “crimes involving
    15680                 ABEBE v. MUKASEY
    moral turpitude.” In an exclusion proceeding, his offense, as
    a “crime of moral turpitude,” would make Alien A eligible for
    a § 212(c) waiver. If he ends up in deportation proceedings,
    however, he is not eligible for § 212(c) relief, under the com-
    parable grounds test, because the category “aggravated felo-
    nies” is sufficiently different from the category of “crimes
    involving moral turpitude.” Alien B, on the other hand, who
    commits a drug offense is also both deportable and exclud-
    able, but is eligible for § 212(c) relief in a deportation pro-
    ceeding simply because drug offenses were described with
    similar words in the deportation and exclusion statutes.
    This type of classification between aliens who are other-
    wise similarly situated violates equal protection unless it is
    rationally related to a legitimate government interest.
    Jimenez-Angeles v. Ashcroft, 
    291 F.3d 594
    , 603 (9th Cir.
    2002). Congress is surely informed by important policy con-
    siderations when making determinations about which offenses
    make an alien deportable or excludable. Decisions about the
    size, scope, and overlap of categories of deportable and
    excludable offenses have no rational relation to judgments
    about which aliens should be permitted to remain in our coun-
    try and which should not.
    As Judge Berzon pointed out, there is one additional incon-
    sistency between the comparable grounds test and the way
    that section 212(c) relief functions as a practical matter. Once
    an alien receives a waiver of excludability under either sec-
    tion 212(c) or other waiver provisions, the alien cannot be
    deported or excluded in the future solely due to the offense on
    which he received the waiver. This is true even if there is a
    category of deportable crimes that applies to his offense
    which is different from the category that permitted the waiver.
    See, e.g., Matter of Balderas, 
    20 I. & N. Dec. 389
    , 392 (BIA
    1991). In other words, section 212(c) relief is itself offense-
    specific, not ground-specific.
    ABEBE v. MUKASEY                    15681
    III
    Additionally, I respectfully dissent from the majority’s
    holding that Abebe did not exhaust his claim for withholding
    of removal. Abebe raised this claim in his notice of appeal
    before the BIA. The purpose of the administrative exhaustion
    requirement is so that the “administrative agency [may] have
    a full opportunity to resolve a controversy or correct its own
    errors before judicial intervention.” Sagermark v. INS, 
    767 F.2d 645
    , 648 (9th Cir. 1985). When a petitioner raises an
    issue in his notice of appeal, the BIA has a “full opportunity
    to resolve [the] controversy,” particularly in light of the fact
    that the petitioner is not required to file an accompanying
    brief. See 
    8 C.F.R. § 3.38
    (f) (1999) (“Briefs may be filed by
    both parties . . . .” (emphasis added)). Ladha v. INS, 
    215 F.3d 889
    , 903 (9th Cir. 2000), was correctly decided. I would hold
    that Abebe exhausted his claim for withholding of removal
    and would thus remand to the BIA for consideration of the
    claim in the first instance.
    IV
    For all of these reasons, I would find Abebe eligible for
    section 212(c) relief. To classify aliens based on the happen-
    stance of whether they have recently departed the country and
    reentered furthers no logical government interest. Similarly,
    to classify aliens in deportation proceedings whose deportable
    offense is also a ground for exclusion based on the agency-
    created category into which the offense happens to fall serves
    no legitimate government interest. I would hold, following the
    Second Circuit in Blake, 
    489 F.3d 88
    , that an alien in a depor-
    tation proceeding is eligible for section 212(c) relief if the
    offense which makes him deportable would also render him
    excludable. Applying section 212(c) relief to deportation pro-
    ceedings using an offense-based analysis is the only constitu-
    tional interpretation of the statute. In addition, I would hold
    that Abebe exhausted his claim for withholding of removal
    and allow him to pursue that claim on remand. Tapia-Acuna,
    15682                 ABEBE v. MUKASEY
    
    640 F.2d 223
    , and Ladha, 
    215 F.3d 889
    , were rightly decided.
    Komarenko, 
    35 F.3d 432
    , should be overruled.
    Like the Second Circuit in Blake, 
    489 F.3d at 91
    , I find
    Judge Learned Hand’s caution particularly apt here: “It is well
    that we should be free to rid ourselves of those who abuse our
    hospitality; but it is more important that the continued enjoy-
    ment of that hospitality once granted, shall not be subject to
    meaningless and irrational hazards.” Di Pasquale v. Karnuth,
    
    158 F.2d 878
    , 879 (2d Cir. 1947). There is no rational basis
    for treating a lawful permanent resident who steps across the
    border for a day better than one who does not.
    For these reasons, I respectfully dissent.
    

Document Info

Docket Number: 05-76201

Filed Date: 11/19/2008

Precedential Status: Precedential

Modified Date: 10/14/2015

Authorities (33)

Flemming v. Nestor , 80 S. Ct. 1367 ( 1960 )

Kleindienst v. Mandel , 92 S. Ct. 2576 ( 1972 )

fernando-rodriguez-padron-v-immigration-and-naturalization-service , 13 F.3d 1455 ( 1994 )

united-states-v-christopher-lee-armstrong-aka-chris-armstrong-and , 48 F.3d 1508 ( 1995 )

Immigration & Naturalization Service v. St. Cyr , 121 S. Ct. 2271 ( 2001 )

Chevron U. S. A. Inc. v. Natural Resources Defense Council, ... , 104 S. Ct. 2778 ( 1984 )

Baltazar Hernandez Barron Margarita Hernandez Ramirez v. ... , 358 F.3d 674 ( 2004 )

Yick Wo v. Hopkins , 6 S. Ct. 1064 ( 1886 )

Jose Cruz Romero-Torres v. John Ashcroft, Attorney General , 327 F.3d 887 ( 2003 )

United States v. Armstrong , 116 S. Ct. 1480 ( 1996 )

Bertil Sagermark, Francisca Walters Mazariegos v. ... , 767 F.2d 645 ( 1985 )

Jose Catalino Guzman-Andrade v. Alberto Gonzales, Attorney ... , 407 F.3d 1073 ( 2005 )

fernando-jorge-desousa-v-janet-reno-attorney-general-doris-meissner , 190 F.3d 175 ( 1999 )

Alexander Komarenko v. Immigration & Naturalization Service , 35 F.3d 432 ( 1994 )

Jean M. Valere v. Alberto R. Gonzales , 473 F.3d 757 ( 2007 )

Boutilier v. Immigration & Naturalization Service , 87 S. Ct. 1563 ( 1967 )

Reynaldo Requena-Rodriguez v. Kenneth Pasquarell, ... , 190 F.3d 299 ( 1999 )

Lolita I. Alvarez v. District Director of the U. S. ... , 539 F.2d 1220 ( 1976 )

Andres Antonio Campos v. Immigration and Naturalization ... , 961 F.2d 309 ( 1992 )

United States v. Juan Barajas-Guillen , 632 F.2d 749 ( 1980 )

View All Authorities »