Abebe v. Mukasey ( 2009 )

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 r. 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, simply 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 addition, 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 overturn our decision in Komar-enko and follow the Second Circuit’s recent decision in Blake v. Carbone, 489 F.3d 88 (2d Cir.2007). I would adhere to Ko-marenko 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 Immigration 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 discretionary relief, there is nothing in the legislative history, which catalogued other perceived abuses, to suggest that Congress 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 Tapiar-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).

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 decades 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 Tapiar-Acuna, that the Equal Protection Clause prohibits irrational disparities in treatment. It simply disagrees with the application 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 conclusion 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 qualify 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 border based on knowledge that, under the immigration statute, 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 217, n. 4, that it is not seeking to identify 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 classifications.²

Not only does the majority overrule our precedent, it casts doubt on DHS’s power to grant section 212(c) relief in deportation or removal proceedings. It concludes that “[ujnder its plain language, section 212(c) only gives the Attorney General discretion to grant lawful permanent residents relief from inadmissibility — not deportation.” Majority Op. at 1205 (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 statute the agency is charged with interpreting, and that countless otherwise deporta-ble or removable aliens have remained in this country due to the agency’s error.

Later, when addressing the dissent, the majority says otherwise 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) tp grant discretionary 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 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 reason 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 challenge, 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 1217. I disagree.

The government sought to remove Abebe on two independent 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 exclusion, then he would have been eligible for discretionary relief under section 212(c). He contends that DHS’s statutory counterpart 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 committed 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 subjected to discriminatory treatment, however, because he cannot 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 situations, predictable and unpredictable, where the government is vested with, and exercises, discretion. To take the most obvious example, imagine the quotidian circumstance of a prosecutor 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.

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 unconstitutional 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 entitled 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. Armstrong, 48 F.3d 1508 (9th Cir.1995) (en banc), rev’d, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (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-Lemos, 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 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 Congress 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.” Dissent at 1213. It is a situation where two individuals are being treated differently because the charges against them are materially different, and different charges bring different consequences. 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 ultimately 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 government could have chosen to seek removal based on (1) his 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.

1 . I do join in Part 3 of the majority opinion, because I agree that petitioner did not exhaust his withholding of removal claim before the agency.

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.