Paulo v. Holder ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO REYES PAULO, III, 
Petitioner, No. 07-71198
v.
 Agency No.
A039-825-666
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 16, 2011—San Francisco, California
Filed May 4, 2011
Before: Procter Hug, Jr., William A. Fletcher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge William A. Fletcher
5937
5940 PAULO v. HOLDER
COUNSEL
Robert B. Jobe, Law Offices of Robert B. Jobe, San Francis-
co, California, for the petitioner.
Daniel E. Goldman, James A. Hunolt, U.S. Department of
Justice, Civil Division/Oil, Washington, D.C., for the respon-
dent.
PAULO v. HOLDER 5941
OPINION
W. FLETCHER, Circuit Judge:
Petitioner Antonio Reyes Paulo, III (“Paulo”) petitions for
review of an order of the Board of Immigration Appeals
(“BIA”) pretermitting his application for a waiver of inadmis-
sibility pursuant to the now-repealed § 212(c) of the Immigra-
tion and Nationality Act (“INA”). We hold that res judicata
binds the BIA to the final decision of the District Court for the
Northern District of California, which held that Paulo is eligi-
ble for discretionary relief under § 212(c) based on INS v. St.
Cyr, 533 U.S. 289 (2001).
We grant Paulo’s petition and remand for further proceed-
ings consistent with this opinion.
I. Background
Paulo is a native and citizen of the Philippines. He was
admitted to the United States as an immigrant on August 8,
1985. At that time he was fourteen years old. He is the son of
a lawful permanent resident mother and a U.S. citizen father.
He has a U.S. citizen daughter, born on October 28, 1997.
On September 5, 1991, Paulo was convicted in California
state court of assault with a firearm in violation of California
Penal Code § 245(a)(2). He served two years and nine
months’ imprisonment. For reasons not clear from the record,
on October 26, 1994, a California Superior Court vacated this
conviction, and Paulo pled guilty to assault with a deadly
weapon other than a firearm in violation of California Penal
Code § 245(a)(1). The new conviction was entered nunc pro
tunc as of the date of the original conviction, and the sentence
was unchanged. On March 30, 1998, Paulo pled guilty to
receiving known stolen property in violation of California
Penal Code § 496(a), and was sentenced to sixteen months’
imprisonment.
5942 PAULO v. HOLDER
On September 28, 1998, Paulo was served with a Notice to
Appear based on these criminal convictions. The Notice
charged him as removable under both INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for convic-
tion of an aggravated felony, and INA § 237(a)(2)(A)(ii), 8
U.S.C. § 1227(a)(2)(A)(ii), for conviction of two crimes
involving moral turpitude not arising out of a single scheme.
The aggravated felony charge was based on his conviction for
assault with a deadly weapon, and the moral turpitude charge
was based on both criminal convictions.
Paulo conceded removability and sought relief through
withholding of removal, asylum, and the Convention Against
Torture (“CAT”). For reasons not relevant to this appeal, the
Immigration Judge (“IJ”) concluded that Paulo was not eligi-
ble for either asylum or withholding of removal, and rejected
Paulo’s CAT claim. The IJ issued an order of removal to the
Philippines on October 18, 2000. The BIA affirmed on Febru-
ary 22, 2001. This court dismissed the subsequent petition for
review for lack of jurisdiction on May 23, 2001.
On June 25, 2001, the Supreme Court decided INS v. St.
Cyr, 533 U.S. 289 (2001), a challenge to the retroactive appli-
cation of the provision of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) that
repealed INA § 212(c), formerly codified at 8 U.S.C.
§ 1182(c). Section 212(c) gave the Attorney General the dis-
cretionary power to grant relief from deportation to certain
aliens convicted of criminal offenses. The Supreme Court
held in St. Cyr that the repeal of § 212(c) cannot be applied
retroactively to aliens who had, before the passage of IIRIRA,
reasonably relied on the availability of § 212(c) relief in
pleading guilty to offenses making them deportable. St. Cyr,
533 U.S. at 325-26. Under St. Cyr, Paulo was potentially eli-
gible for § 212(c) relief.
Approximately one year later, on November 8, 2002, a Cal-
ifornia Superior Court vacated Paulo’s conviction for receiv-
PAULO v. HOLDER 5943
ing known stolen property on the ground that his plea had
been unconstitutionally obtained. Paulo then pled guilty to
false personation under California Penal Code § 529(3). False
personation is not a crime of moral turpitude. Thus, Paulo was
no longer removable under INA § 237(a)(2)(A)(ii).
Because the time in which Paulo was entitled to file a
motion to reopen with the BIA had expired, see 8 C.F.R.
§ 3.2(c)(2) (2003), he petitioned for a writ of habeas corpus
in the District Court for the Northern District of California on
May 23, 2003. The two grounds for his petition were (1) that
he was entitled to a new removal hearing because one of the
grounds for his removal, his conviction of two crimes of
moral turpitude, was no longer valid; and (2) that he was eli-
gible for § 212(c) relief under St. Cyr.
The government objected to both grounds. As to the first
ground, the government argued that Paulo was still convicted
of an aggravated felony — assault with a deadly weapon other
than a firearm — and thus his removal order should still stand
under INA § 237(a)(2)(A)(iii). As to the second ground, the
government argued that Paulo was not covered by St. Cyr
because at the time Paulo pled guilty to assault with a firearm
in 1991, a lawful permanent resident convicted of a firearm
offense was not eligible for § 212(c) relief. The government
argued that Paulo therefore could not have relied on the avail-
ability of § 212(c) relief when he pled guilty to assault with
a firearm. The government argued that the fact that the con-
viction was changed to a non-firearm offense in 1994 was
irrelevant. Furthermore, the government noted that § 212(c)
relief was unavailable to an aggravated felon who had served
a term of imprisonment of at least five years. The government
argued (incorrectly) that Paulo had served a five-year sen-
tence. The government made no other argument against
Paulo’s eligibility for § 212(c) relief.
The district court agreed with the government that because
the removal order was based on two independent grounds, one
5944 PAULO v. HOLDER
of which remained valid, Paulo was not entitled to a new
removal hearing. However, the district court agreed with
Paulo that he was eligible for § 212(c) relief based on St. Cyr.
It agreed with the government that in 1991 a lawful perma-
nent resident convicted of a firearm offense was ineligible for
§ 212(c) relief. It concluded, however, that the 1994 plea for
assault with a deadly weapon other than a firearm was the rel-
evant plea for the purposes of St. Cyr’s reliance analysis.
When Paulo pled guilty to assault with a deadly weapon other
than a firearm, he was eligible for § 212(c) relief. The district
court observed (correctly) that Paulo had only served a two-
year and nine-month sentence, which was less than the five-
year sentence necessary to bar an aggravated felon from
§ 212(c) relief. The district court granted Paulo’s habeas peti-
tion on June 21, 2004. It ordered: “Respondents shall allow
Petitioner to apply to the Attorney General for a discretionary
waiver of deportation under former § 212(c) of the Immigra-
tion and Nationality Act.” The government did not appeal and
has not moved under Rule 60 for a modification of the district
court’s order.
In compliance with the district court’s order, the BIA
remanded the case to the IJ on December 22, 2004 to allow
Paulo to apply for § 212(c) relief. The IJ held preliminary
hearings in early 2005.
On April 6, 2005, the BIA decided In re Blake, 23 I. & N.
Dec. 722 (BIA 2005), and on June 7, 2005, the BIA decided
In re Brieva-Perez, 23 I. & N. Dec. 766 (BIA 2005). Blake
and Brieva concern the “statutory counterpart rule” of
§ 212(c). By its plain language, § 212(c) applies only to aliens
in exclusion proceedings, not removal (the post-IIRIRA term
for deportation) proceedings. See INA § 212(c) (repealed
1996) (providing eligibility for relief to “[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 consecutive years”). In Francis v. INS, 532 F.2d 268PAULO v. HOLDER 5945
(2d Cir. 1976), however, the Second Circuit concluded that
there was no rational basis for treating aliens who had trav-
eled abroad and were attempting to return to the United States
differently from aliens who had never left the United States.
Based on constitutional avoidance, the Second Circuit
extended § 212(c) to cover removable as well as excludable
aliens. Id. at 273. The BIA acquiesced to Francis in Matter
of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). We agreed with
Francis in Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.
1981).
Because the application of § 212(c) to removable as well as
excludable aliens is dependent on the equal protection argu-
ment underpinning Francis, courts, including this court and
the BIA, have repeatedly held that in order for removable
aliens to be eligible for § 212(c) relief, the statutory basis for
their removability must have a statutory counterpart in the
statutory bases for excludability. See, e.g., Komarenko v. INS,
35 F.3d 432, 434 (9th Cir. 1994) (to prevent equal protection
violation, § 212(c) need only cover deportable aliens when “a
subsection of the exclusion statute is substantially identical to
a subsection of the deportation statute”); Matter of Esposito,
21 I. & N. Dec. 1, 5-9 (BIA 1995); Matter of Montenegro, 20
I. & N. Dec. 603, 604-06 (BIA 1992); Matter of Meza, 20 I.
& N. Dec. 257, 258-59 (BIA 1991). This requirement was
codified in a post-St. Cyr regulation, promulgated on Septem-
ber 28, 2004, which provides that aliens are ineligible for
§ 212(c) relief if they are removable “on a ground which does
not have a statutory counterpart in section 212 of the [INA].”
8 C.F.R. § 1212.3(f)(5).
Two related questions arise in the application of the statu-
tory counterpart rule. The first is how similar a ground for
excludability must be to a ground for removability in order to
constitute a statutory counterpart. The second is, in deciding
the similarity question, whether a court should focus on
whether a given offense is covered by both an exclusion and
a removal provision, or on whether the language of the
5946 PAULO v. HOLDER
removability provision charged is similar to that of an exclud-
ability counterpart. The BIA’s pre-Blake decisions, although
not models of clarity, strongly suggested that some similarity
in the language of the statutes is necessary, and that merely
overlapping coverage is insufficient. See Montenegro, 20 I. &
N. Dec. at 604-06; Esposito, 21 I. & N. Dec. at 5-9.
In Blake and Brieva, the BIA made clear that the question
of whether a removability category has a statutory counterpart
in an excludability category turns on the language of the pro-
visions. Blake, 23 I. & N. Dec. at 728 (stating that the ques-
tion “turns on whether Congress has employed similar
language to describe substantially equivalent categories of
offenses”). Even if there is “considerable overlap” between
two categories, if the statutory language is dissimilar then the
removable alien is not eligible for § 212(c) relief. Id. Based
on Blake, Brieva, and earlier BIA and Ninth Circuit decisions,
the government moved to pretermit Paulo’s application for a
§ 212(c) waiver on October 6, 2005.
Paulo was found removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) based on his conviction of a crime of vio-
lence for which a term of imprisonment of one year or more
was imposed, which constituted an aggravated felony under 8
U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16. The government
argued that because this removability provision has no statu-
tory counterpart in the grounds of excludability, Paulo was
not eligible for § 212(c) relief. The government also noted
that 8 C.F.R. § 1212.3(f)(5) makes clear that the statutory
counterpart rule survives St. Cyr. Paulo responded by arguing
that, based on res judicata, the IJ and the government were
bound by the district court’s conclusion that Paulo is entitled
to apply for discretionary relief under § 212(c). Paulo also
argued that Blake violates the Equal Protection Clause under
Francis and Tapia-Acuna, that Blake is a significant departure
from past BIA practice and thus cannot be applied retroac-
tively, and that the BIA’s interpretation of 8 C.F.R.
§ 1212.3(f)(5) is unreasonable and impermissible.
PAULO v. HOLDER 5947
In several hearings, the IJ expressed his dissatisfaction with
Blake, but concluded that Blake controlled Paulo’s case. On
February 28, 2006, he pretermitted Paulo’s § 212(c) applica-
tion and ordered Paulo removed. He concluded that under
Clifton v. Attorney General of California, 997 F.2d 660, 663
(9th Cir. 1993), res judicata does not apply when there has
been an intervening change in the law. He concluded that
Blake represented such a change, and that res judicata thus did
not bar the Department of Homeland Security from challeng-
ing Paulo’s eligibility for § 212(c) relief. The IJ further con-
cluded that issue preclusion did not apply because the precise
question of whether the lack of a statutory counterpart in the
grounds of excludability makes Paulo ineligible for § 212(c)
relief was not argued before the district court. The IJ also
rejected Paulo’s other claims. Because the parties agreed that
under Blake the grounds for Paulo’s removability had no stat-
utory counterpart in the grounds for excludability, the IJ
ordered that Paulo be removed. The BIA summarily affirmed.
Paulo timely petitioned for review.
The Second Circuit has since disagreed with Blake and
Brieva, concluding that the same constitutional avoidance
principles motivating Francis require that the analysis under
the statutory counterpart rule must focus on “whether [an
alien’s] underlying aggravated felony offenses could form the
basis for exclusion,” not on whether the language of the
removability and exclusion provisions is similar. Blake v.
Carbone, 489 F.3d 88, 105 (2d Cir. 2007) (emphasis added).
In Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc)
(per curiam), facing a similar claim, we took an entirely dif-
ferent approach. Instead of following either the BIA or the
Second Circuit, we overturned our decision in Tapia-Acuna
and held that providing § 212(c) relief to excludable but not
removable aliens would not violate equal protection. Id. at
1205-06. We were careful, however, to state that “nothing we
say today casts any doubt on [8 C.F.R. § 1212.3],” the post-St.
Cyr regulation providing § 212(c) relief to many removable
aliens based on the Second Circuit’s holding in Francis. Id.
5948 PAULO v. HOLDER
at 1207. Thus, in this Circuit, removable aliens are still eligi-
ble for § 212(c) relief so long as they can show, among other
things, that the ground for their removability has a statutory
counterpart in the grounds for excludability. Pascua v.
Holder, ___ F.3d ___, Nos. 08-71636, 08-72705, 2001 WL
1024434, at *2 n.2 (9th Cir. Mar. 23, 2011); 8 C.F.R.
§ 1212.3(f)(5).
The Supreme Court recently granted certiorari to resolve
the split between Blake, Francis, and Abebe. Judulang v.
Holder, ___ S. Ct. ___, 2001 WL 1457529 (April 18, 2011).
However, for reasons that we explain below, our opinion does
not depend on the outcome in Judulang. We therefore will not
delay our decision in this case to wait for the Supreme Court’s
decision.
II. Standard of Review
When the BIA affirms the IJ’s decision without opinion,
the decision of the IJ becomes the final agency determination
reviewed by this court. Lanza v. Ashcroft, 389 F.3d 917, 925
(9th Cir. 2004). The BIA’s determination of legal questions is
reviewed de novo. De Martinez v. Ashcroft, 374 F.3d 759,
761 (9th Cir. 2004).
III. Jurisdiction
We have jurisdiction under 8 U.S.C. § 1252(a)(1), which,
with exceptions not applicable here, grants us jurisdiction
over final orders of removal.
IV. Discussion
[1] The only issue on appeal is whether res judicata binds
the IJ and BIA to the district court’s holding that Paulo is enti-
tled to apply for discretionary relief under § 212(c). Under the
doctrine of res judicata, “[a] final judgment on the merits of
an action precludes the parties or their privies from relitigat-
PAULO v. HOLDER 5949
ing issues that were or could have been raised in that action”
even if that judgment “may have been wrong or rested on a
legal principle subsequently overruled in another case.” Fed-
erated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).
Res judicata bars relitigation of issues in immigration courts
already litigated in Article III courts. Matter of Fedorenko, 19
I. & N. Dec. 57, 61-63 (BIA 1984); Matter of Bowe, 17 I. &
N. Dec. 488, 489-90 (BIA 1980); cf. United States v. Utah
Constr. & Mining Co., 384 U.S. 394, 422 (1966) (“When an
administrative agency is acting in a judicial capacity and
resolve[s] disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate, the courts
have not hesitated to apply res judicata to enforce repose.”);
Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987)
(per curiam).
[2] Res judicata encompasses the doctrines of claim pre-
clusion and issue preclusion. Taylor v. Sturgell, 553 U.S. 880,
892 & n.5 (2008). Issue preclusion, the doctrine more clearly
applicable to this case, applies when: “(1) the issue necessar-
ily decided at the previous proceeding is identical to the one
which is sought to be relitigated; (2) the first proceeding
ended with a final judgment on the merits; and (3) the party
against whom [issue preclusion] is asserted was a party or in
privity with a party at the first proceeding.” Hydranautics v.
FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000) (internal
quotation marks omitted). The government makes two argu-
ments. First, it argues that these requirements are not met.
Second, it argues that, assuming these requirements are met,
Blake and Brieva constitute new law such that res judicata
does not apply. We address these arguments in turn.
A. Applicability of Issue Preclusion
The government does not contest that the habeas proceed-
ing in district court ended with a final judgment on the merits,
nor does it contest that it was a party to that proceeding. The
government argues, however, that the issue decided at the pre-
5950 PAULO v. HOLDER
vious proceeding is not identical to the one sought to be reliti-
gated. Specifically, the government argues both that the
statutory counterpart question was not raised in the district
court, and that the only issue resolved by the district court was
that Paulo was entitled to apply for § 212(c) relief in the nar-
row sense of filing an application. We reject both of these
arguments.
[3] The government is correct that the question of whether
the statutory counterpart rule made Paulo ineligible for
§ 212(c) relief was not raised in the district court. The govern-
ment could have made an argument addressed to this ques-
tion, but it did not. The fact that a particular argument against
Paulo’s eligibility was not made by the government and not
addressed by the district court does not mean that the issue of
Paulo’s eligibility for § 212(c) relief was not decided. See
Medina v. INS, 993 F.2d 499, 503 n.15 (5th Cir. 1993). Issue
preclusion is designed to “bar[ ] ‘successive litigation of an
issue of fact or law actually litigated and resolved in a valid
court determination.’ ” Taylor, 553 U.S. at 892 (quoting New
Hampshire v. Maine, 532 U.S. 742, 748 (2001)). If a party
could avoid issue preclusion by finding some argument it
failed to raise in the previous litigation, the bar on successive
litigation would be seriously undermined. See 18 James Wm.
Moore et al., Moore’s Federal Practice § 132.02[2][c] (3d ed.
2010) (“If a new legal theory or factual assertion raised in the
second action is relevant to the issues that were litigated and
adjudicated previously, the prior determination of the issue is
conclusive on the issue despite the fact that new evidence or
argument relevant to the issue was not in fact expressly
pleaded, introduced into evidence, or otherwise urged.”). The
issue sought to be relitigated in this case is Paulo’s eligibility
for § 212(c) relief, which was decided in the previous pro-
ceeding by the district court.
[4] The government’s argument that the district court’s
order entitled Paulo only to file an application for relief, and
did not entitle him to have his application evaluated according
PAULO v. HOLDER 5951
to the criteria for granting such relief, is also without merit.
The district court ordered that the government “shall allow
Petitioner to apply to the Attorney General for a discretionary
waiver of deportation under former § 212(c) of the Immigra-
tion and Nationality Act.” Although the government allowed
Paulo literally to file the papers constituting the application
for § 212(c) relief, it then moved for the IJ to pretermit the
application. To pretermit generally means to ignore. Black’s
Law Dictionary (9th ed. 2009). The word “pretermit” “is used
by the immigration court and the Board of Immigration
Appeals whenever an alien is found ineligible to apply for
some form of relief.” Gonzalez-Balderas v. Holder, 597 F.3d
869, 870 (7th Cir. 2010).
[5] It is impossible to read the district court’s order as
requiring the government to allow Paulo to file the papers
constituting a § 212(c) application, but then allowing the IJ
and the BIA to ignore that application. Paulo could have filed
a § 212(c) application that would have been pretermitted even
before he filed his habeas petition. The district court clearly
concluded that Paulo is eligible for § 212(c) relief, and
ordered the government to proceed before the immigration
courts based on its conclusion that Paulo was eligible. That
does not mean that the district court required that Paulo be
granted relief. But it does mean that the district court required
that his application for § 212(c) relief be considered on the
merits.
[6] We conclude that the requirements for issue preclusion
are satisfied and that, barring an exception to res judicata, the
government cannot relitigate Paulo’s eligibility for § 212(c)
relief.
B. Change of Law Exception to Res Judicata
The government argues that if the basic requirements for
issue preclusion are satisfied, Blake and Brieva constitute a
change of law such that principles of res judicata do not
5952 PAULO v. HOLDER
apply. The government cites Clifton v. Attorney General of
the State of California, 997 F.2d 660 (9th Cir. 1993), for this
exception. Paulo responds that Clifton created no exception to
res judicata applicable to this case, and, further, that even if
it did create such an exception, Blake and Brieva did not
change the law. We agree with Paulo that Blake and Brieva
did not change the law. Thus, even assuming change of law
is an exception to res judicata, it is not applicable here.
[7] In our recent en banc decision in Abebe, we strongly
suggested, if not directly held, that Blake and Brieva do not
constitute a change of law. One of the petitioner’s arguments
in that case was that Blake and Brieva represented “new
rules” and thus could not be applied retroactively. Abebe v.
Gonzales, 493 F.3d 1092, 1105 (9th Cir. 2007), vacated, 514
F.3d 909 (9th Cir. 2008). The three-judge panel rejected this
argument “for the simple reason that Blake and Brieva do not
represent a change in the law.” Id.; see also id. at 1102
(“[T]he BIA has not recently changed course but rather has
maintained a consistent position for many years.”). The panel
noted that the BIA’s approach has been settled “[s]ince at
least the 1970s.” Id. at 1105. Although the en banc court did
not address this argument in great detail, it did “reject peti-
tioner’s due process retroactivity argument,” and cited to the
panel’s analysis. Abebe, 554 F.3d at 1208 n.7. Thus the en
banc court in Abebe appears to have concluded that Blake and
Brieva did not change the law. The Second Circuit has
reached the same conclusion. Blake, 489 F.3d at 98-99 (reject-
ing petitioner’s retroactivity argument and concluding that
Blake “has not [changed the law]” and “does nothing more
than crystallize the agency’s preexisting body of law”).
[8] Even if this court’s en banc decision in Abebe did not
resolve this question, it is clear to us that Blake and Brieva did
not effect a change of law. The statutory counterpart rule has
existed for at least thirty years. See, e.g., Matter of Wadud, 19
I. & N. Dec. 182, 184 (BIA 1984) (“[T]he Board has consis-
tently held that section 212(c) can only be invoked in a depor-
PAULO v. HOLDER 5953
tation hearing where the ground of deportation charged is also
a ground of inadmissibility.”). It has been applied in this court
for at least twenty years. See Cabasug v. INS, 847 F.2d 1321,
1325-26 (9th Cir. 1988).
[9] Although Blake and Brieva represent the BIA’s clearest
statements on the issue, the BIA has regularly focused on the
language of the excludability and removability provisions in
applying the statutory counterpart rule rather than the overlap
in coverage between excludability and removability provi-
sions. For example, in In re Jimenez-Santillano the BIA “re-
ject[ed] the respondent’s contention that excludability under
section 212(a)(6)(C)(i) of the Act for fraud or willful misrep-
resentation of a material fact before an immigration official to
procure an immigration benefit . . . is comparable to deporta-
bility under section 241(a)(3)(B)(iii) for criminal convictions
for document fraud or misuse under 18 U.S.C. § 1546(a).” 21
I. & N. Dec. 567, 573 (BIA 1996). The Board stated that its
“focus ‘is not whether the deportable alien’s particular offense
. . . could form the basis for a ground of exclusion and there-
fore be waivable; rather, the focus is whether the ground of
deportation against the alien has a comparable ground of
exclusion.’ ” Id. (quoting Esposito, 21 I. & N. Dec. at 7)
(emphasis added). We similarly held, ten years before Blake,
that § 212(c) relief is only available if “a subsection of the
exclusion statute is substantially identical to a subsection of
the deportation statute.” Komarenko, 35 F.3d at 434 (empha-
sis added). Neither the BIA nor this court has ever held, or
even suggested, that the relevant question is whether, irre-
spective of the language of the provisions, the conviction
making the alien removable also makes the alien excludable.
Blake and Brieva therefore did not change the law.
Conclusion
We conclude that res judicata binds the BIA and the IJ to
the district court’s conclusion that Paulo is eligible for
§ 212(c) relief. For the purposes of Paulo’s § 212(c) applica-
5954 PAULO v. HOLDER
tion, the government, the BIA, and the IJ are to proceed based
on Paulo’s eligibility for § 212(c) relief. Thus, all that remains
is for the BIA and the IJ to “balance the adverse factors evi-
dencing an alien’s undesirability as a permanent resident with
the social and humane considerations presented in his behalf
to determine whether the granting of section 212(c) relief
appears in the best interests of this country.” Matter of Marin,
16 I. & N. Dec. 581, 584 (BIA 1978).
We grant the petition and remand for further proceedings
consistent with this opinion.
PETITION GRANTED; REMANDED.