                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS                April 9, 2008
                                                               Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                Clerk of Court



    PETELO FALANIKO,

                Petitioner,

    v.                                                  No. 07-9516
                                                    (Petition for Review)
    MICHAEL B. MUKASEY, * United
    States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT **


Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.


         Under former § 212(c) of the Immigration and Nationality Act (INA), a

lawful permanent resident (LPR) subject to removal could apply for a removal

waiver if the basis of removal was analogous to a ground of inadmissibility under

*
      On November 9, 2007, Michael B. Mukasey became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Mukasey is substituted for Alberto R. Gonzales as the
respondent in this action.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
INA § 212(a). Petelo Falaniko sought such a waiver after he was charged with

removal as an aggravated felon, but an Immigration Judge (IJ) denied his

application. The IJ found that Mr. Falaniko’s status as an aggravated felon

convicted of a crime of violence rendered him ineligible for relief because there

was no analogous ground of inadmissibility under INA § 212(a). The Board of

Immigration Appeals (BIA) affirmed. Mr. Falaniko now petitions this court for

review, arguing that he is eligible for a § 212(c) waiver despite his status as an

aggravated felon. We reject his arguments and deny the petition for review.

                                           I

      Mr. Falaniko is a native and citizen of Western Samoa. He entered this

country in 1975 as an LPR but pleaded guilty in 1994 to the Utah crime of

forcible sexual abuse. Mr. Falaniko’s conviction prompted the Department of

Homeland Security (DHS) to initiate removal proceedings in 2003 under 8 U.S.C.

§ 1227(a)(2)(A)(iii), which authorizes removal of an alien convicted of an

aggravated felony. Appearing before an IJ, Mr. Falaniko conceded the charges

but sought a waiver under former § 212(c) of the INA. When the IJ denied his

application, Mr. Falaniko appealed to the BIA, arguing, among other things, that

he was eligible for a waiver under INS v. St. Cyr, 533 U.S. 289, 326 (2001),

which held that Congress did not retroactively repeal § 212(c) to deny relief from

otherwise eligible aliens. Mr. Falaniko argued that St. Cyr was dispositive

because he was eligible and pleaded guilty before § 212(c) was repealed.

                                          -2-
      The BIA rejected Mr. Falaniko’s argument. The BIA reasoned that

notwithstanding St. Cyr, Mr. Falaniko remained ineligible for a § 212(c) waiver

because the basis of his removal – his status as an aggravated felon convicted of a

crime of violence – had no statutory counterpart under § 212(a) of the INA as

required by 8 C.F.R. § 1212.3(f)(5). The BIA ruled that absent a statutory

counterpart, Mr. Falaniko was ineligible for relief under § 212(c).

      Mr. Falaniko subsequently petitioned this court for review, arguing that

forcible sexual abuse has a statutory counterpart in § 212(a) as it is a crime of

moral turpitude. He further argues that 8 C.F.R. § 1212.3(f)(5) violates St. Cyr

because it retroactively attaches new disabilities to his plea agreement by

imposing the statutory-counterpart requirement to qualify for a § 212(c) waiver.

Lastly, he contends the BIA found him ineligible for a waiver because it analyzed

the wrong definition of “aggravated felony.” The government responds that the

provision for crimes of moral turpitude under § 212(a) is not a statutory

counterpart to the basis of Mr. Falaniko’s removal; 8 C.F.R. § 1212.3(f)(5) does

not violate St. Cyr because it merely codified existing law; and, in any event, we

have no jurisdiction to consider the petition because it challenges a discretionary

decision of the Attorney General.

                                         II

      When the decision to grant or deny a removal waiver rests on an exercise of

discretion, we have no jurisdiction to review it. See 8 U.S.C. § 1252(a)(2)(B)(ii);

                                          -3-
In re Edwards, 20 I. & N. Dec. 191, 194-95 (BIA 1990). In this case, however,

the denial of a removal waiver rested on the determination that Mr. Falaniko was

not eligible for a waiver under § 212(c). This presents a question of law as to the

applicability of § 212(c) and a constitutional claim of equal protection, both of

which we review de novo. See 8 U.S.C. § 1252(a)(2)(D); Ferry v. Gonzales,

457 F.3d 1117, 1126 (10th Cir. 2006).

                                         A.

      We begin by examining the evolution of waivers under the INA.

Historically, the government could expel LPRs from this country in one of two

ways: removal after entry, INA § 237 (8 U.S.C. § 1227), or exclusion upon

reentry, INA § 212(a) (8 U.S.C. § 1182(a)). Zamora-Mallari v. Mukasey,

514 F.3d 679, 683 (7th Cir. 2008). The nature of the proceeding dictated the type

of waiver available: LPRs facing removal could apply only for a removal waiver

under INA § 244, while inadmissible LPRs could apply only for a waiver of

inadmissibility under § 212(c). This seemingly simple scheme sometimes created

anomalous results, however, for if after temporarily leaving the United States an

LPR returned and was not immediately placed in inadmissibility proceedings, he

or she could apply only for a § 244 waiver when the government later initiated

removal proceedings. But because § 212(c) waivers were easier to obtain, see

Blake v. Carbone, 489 F.3d 88, 94 (2nd Cir. 2007), and were granted in more than




                                         -4-
half the cases in which they were sought, Hem v. Maurer, 458 F.3d 1185, 1188

(10th Cir. 2006), these LPRs insisted they remained eligible for § 212(c) relief.

      To remedy the problem, the agency extended § 212(c) inadmissibility

waivers to LPRs who had temporarily gone abroad but were readmitted and

subsequently faced removal. See In re G– A–, 7 I. & N. Dec. 274 (BIA 1956).

And to correct the resultant equal-protection violation caused to LPRs who had

never temporarily departed, courts and the agency further extended § 212(c) relief

to certain LPRs facing removal who did not depart. See Francis v. INS, 532 F.2d

268, 271-73 (2nd Cir. 1976); In re Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). We

approved this approach. See Vissian v. INS, 548 F.2d 325, 328 n.3, 330 (10th Cir.

1977) (noting BIA’s changed position that a § 212(c) waiver of inadmissibility

“may be granted to a permanent resident alien in a deportation proceeding

regardless of whether he departs the United States following the act or acts which

render him deportable,” and recognizing that IJ’s contrary conclusion was

“apparently erroneous”).

      The catch, however, is that “not every act that renders someone

[removable] makes him [inadmissible], and vice versa.” Zamora-Mallari,

514 F.3d at 683. Thus, to ensure that an LPR subject to removal was similarly

situated to an inadmissible LPR, the agency required that there be “a comparable

ground” for removal and inadmissibility – that is, LPRs in removal proceedings

could apply for a waiver under § 212(c) only if their basis for removal under

                                         -5-
§ 237 was also a basis for inadmissibility under § 212(a). See Leal-Rodriguez,

990 F.2d 939, 949 (7th Cir. 1993).

      Eventually, after twice restricting aggravated felons from § 212(c) relief,

Congress repealed § 212(c) altogether, see Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-597

(1996). The Supreme Court in St. Cyr, however, ruled that IIRIRA did not apply

retroactively to deny aliens relief under § 212(c) when they otherwise would have

been eligible for relief at the time they pleaded guilty to the removable offense.

533 U.S. at 326. St. Cyr thus reinstated the agency’s comparable-grounds

analysis to discern whether LPRs who pleaded guilty before Congress repealed

§ 212(c) were otherwise eligible for a § 212(c) waiver.

      To ameliorate the complexity created by these administrative decisions,

court cases, and Congressional actions, the agency promulgated 8 C.F.R.

§ 1212.3(f)(5). That regulation provides that an LPR is not eligible for a § 212(c)

waiver if he or she is removable “on a ground which does not have a statutory

counterpart in section 212 of the Act.” 8 C.F.R. § 1212.3(f)(5). This “statutory

counterpart” analysis replaced the agency’s longstanding comparable-grounds

analysis and remains the test used to ensure that removable aliens who seek relief

under § 212(c) are eligible for a waiver. It is against this backdrop that we

proceed to consider Mr. Falaniko’s arguments.




                                         -6-
                                         B.

   1. Statutory Counterpart Analysis: Basis of Removal vs. Underlying Offense

      Initially, Mr. Falaniko challenges the BIA’s conclusion that § 212(a)

contains no statutory counterpart to the basis of his removal. He argues that his

underlying crime, forcible sexual abuse, is a crime of moral turpitude, which is a

basis of inadmissibility under § 212(a), see 8 U.S.C. § 1182(a)(2)(A)(i)(I).

      Several Courts of Appeals have rejected similar attempts to characterize a

particular underlying offense as a crime of moral turpitude to satisfy the

statutory-counterpart test. See, e.g., Kim v. Gonzales, 468 F.3d 58, 62-63

(1st Cir. 2006); Caroleo v. Gonzales, 476 F.3d 158, 168 (3rd Cir. 2007);

Avilez-Granados v. Gonzales, 481 F.3d 869, 872 (5th Cir. 2007); Zamora-Mallari,

514 F.3d at 691-93; Vue v. Gonzales, 496 F.3d 858, 863 (8th Cir. 2007). The

Ninth Circuit first forged the analytical trail followed by these courts, see

Komarenko v. INS, 35 F.3d 432, 435 (9th Cir. 1994), but it recently has signaled a

potential shift in its approach, see Abebe v. Gonzales, 493 F.3d 1092, 1104-05

(9th Cir. 2007) (reaffirming Komarenko), pet. for reh’g en banc granted sub nom.

Abebe v. Mukasey, 514 F.3d 909 (9th Cir. 2008). Only in the Second Circuit may

an LPR assert that his underlying offense constitutes a crime involving moral

turpitude for purposes of statutory-counterpart analysis. See Blake, 489 F.3d at

103-05 (remanding cases to BIA to determine whether offenses constitute crimes

of moral turpitude under § 212(a)).

                                         -7-
      The rift between the Second Circuit and these other circuits emanates from

whether the statutory ground of removal or the underlying criminal offense should

be compared to INA § 212(a) for purposes of statutory-counterpart analysis. The

Second Circuit looks to the underlying criminal offense, while the rest examine

the statutory ground of removal. The choice can have great implications in

situations such as this, where the basis for removal – one’s status as an

aggravated felon convicted of a crime of violence – is not analogous to the basis

of inadmissibility for having committed a crime involving moral turpitude, but the

underlying offense constituting the aggravated felony, here – forcible sexual

abuse, could qualify as a crime involving moral turpitude.

      The Third Circuit took up the question in Caroleo, where an LPR had

pleaded guilty to multiple offenses, including attempted murder. 476 F.3d at 160.

Charged with removal for having committed an aggravated-felony crime of

violence, the LPR sought a § 212(c) waiver, arguing that attempted murder is a

crime involving moral turpitude, which is a ground of inadmissibility under

§ 212(a). See id. at 164. Rejecting the argument, the court explained that § 237

“lists the grounds upon which the Attorney General may order an alien removed”

if the alien’s underlying criminal conviction falls into one of the statutory

grounds. Id. The court distinguished this preliminary analysis used to determine

the LPR’s removability, i.e., whether the underlying crime constituted an

enumerated ground of removal under § 237, from a secondary analysis used to

                                          -8-
determine whether the particular statutory ground of removal had a corresponding

ground of inadmissibility under § 212(a). See id. Because the LPR’s underlying

crime – attempted murder – was an aggravated-felony crime of violence, the court

found the crime “play[ed] no role in” determining whether the basis for his

removal had a statutory counterpart for inadmissibility under § 212(a). Id. at 168.

Instead, the court held that “[o]nce the government has categorized [the] offense

as a ‘crime of violence’ in removal proceedings, and that categorization has been

upheld, [the] § 212(c) inquiry focuses on whether this statutory ground for

removal is substantially equivalent to any of the grounds for [inadmissibility]”

under § 212(a). Id. The court thus looked to whether the LPR’s ground for

removal – his status as an aggravated felon convicted of a crime of violence – was

the statutory counterpart to § 212(a)’s ground of inadmissibility for crimes of

moral turpitude. Id. Under this analysis, the court found it clearly was not. Id.

      By contrast, the Second Circuit in Blake focused on the underlying criminal

offense, holding that eligibility for a § 212(c) waiver turns on whether an LPR’s

particular offense “could form the basis of a ground of [inadmissibility].”

489 F.3d at 104 (emphasis added). Like the other circuits, the Second Circuit

rejected the broad proposition that aggravated felonies are per se crimes of moral

turpitude and vice versa. But believing itself bound by precedent to “examine the

circumstances of the [removable] alien, rather than the language Congress used to

classify his or her status,” the court declined to simply compare the statutory

                                         -9-
grounds of removal to the statutory grounds of inadmissibility. Id. Instead, the

court concluded that “[i]f the offense that renders a lawful permanent resident

[removable] would render a similarly situated lawful permanent resident

[inadmissible], the [removable] lawful permanent resident is eligible for a waiver

of [removal].” Id. at 103.

      The Second Circuit’s decision in Blake is rooted in its earlier

equal-protection case, Francis, 532 F.2d 268, where an LPR subject to removal

was denied eligibility for a § 212(c) waiver because he had never temporarily

departed the United States. The court found an equal-protection violation because

other similarly situated LPRs in removal proceedings were deemed eligible for

§ 212(c) relief by virtue of the fact that they previously had left the country but

were not immediately placed in inadmissibility proceedings when they reentered.

The Francis court found the LPR’s failure to temporarily depart the United States

an “irrelevant and fortuitous factor[]” to his eligibility for § 212(c) relief, id. at

273, and thus required that eligibility for § 212(c) waivers be extended to

non-departing LPRs in removal proceedings.

      Attempting to adhere to Francis’s mandate that “permanent resident aliens

who are in like circumstances, but for irrelevant and fortuitous factors, be treated

in a like manner,” id., the Second Circuit in Blake concluded that “what makes

one alien similarly situated to another is his or her act or offense, which is

captured in the INA as either a ground of [removal] or ground of

                                           -10-
[inadmissibility],” 489 F.3d at 104. But by focusing on the underlying offense,

the court neglected the varying circumstances that render LPRs removable versus

inadmissible under the INA and thereby omitted from its analysis any mechanism

to ensure that removable LPRs are similarly situated to inadmissible LPRs.

Indeed, it is precisely because Congress delineated different grounds for removal

and inadmissibility that LPRs in removal proceedings are not similarly situated to

LPRs in inadmissibility proceedings unless the statutory basis for removal is

substantially equivalent to a statutory basis for inadmissibility. Valere v.

Gonzales, 473 F.3d 757, 762 (7th Cir. 2007). Absent this congruity, there can be

no equal-protection violation. This has always been the reason for requiring a

statutory counterpart:

      Generally, when courts have found an equal protection violation, the
      excludability and deportation provisions have been substantially
      identical. That way, the only distinction between the two classes of
      persons the statute created was that one class of individuals had
      traveled abroad and returned, and the other had not. It is this
      arbitrary distinction that violates equal protection. In the instant
      case, the provisions are entirely dissimilar, and the distinction
      between the two classes is not arbitrary or unreasonable. For this
      reason, the linchpin of the equal protection analysis in this context is
      that the two provisions be “substantially identical.”

Komarenko, 35 F.3d at 435 (citation omitted).

      By comparing the statutory grounds of removal to the statutory grounds of

inadmissibility, courts are assured that LPRs in removal proceedings are similarly

situated to LPRs in inadmissibility proceedings when the two provisions are


                                         -11-
substantially equivalent. By contrast, comparing the underlying criminal offense

does not ensure such congruity where, as here, the offense could be included

among a broad category of inadmissible offenses, but need not be. We therefore

agree with the First, Third, Fifth, Seventh, Eighth, and Ninth Circuits that the

statutorily prescribed basis of removal should be compared to the statutory

grounds of inadmissibility for purposes of statutory counterpart analysis. 1

      In Mr. Falaniko’s case, he was ordered removed for having committed an

aggravated-felony crime of violence. He does not challenge that classification.

See Pet’r Br. at 7 (“his conviction for forcible sexual abuse, a crime of violence

under § INA 101(a)(43)(F)”), 8-9 (“the crime of violence for which he was

convicted”), 13 (“the crime of violence that formed the basis of the Notice to

Appear”). Consequently, we look to whether this basis of removal is the statutory

counterpart to crimes involving moral turpitude under INA § 212(a). “The BIA

has held that the ‘crime of violence’ aggravated felony ground for removal under

INA § 237 is not ‘substantially equivalent’ to INA § 212(a)’s ‘crime involving

moral turpitude’ ground for [inadmissibility] such that the two can be considered

statutory counterparts.” Caroleo, 476 F.3d at 168 (emphasis omitted) (quoting

1
       We recognize that our decision in Jurado-Gutierrez v. Greene, 190 F.3d
1135, 1152-53 (10th Cir. 1999), could be read to suggest that LPRs subject to
removal and inadmissibility are similarly situated. In that case, however, we
expressly declined to decide whether aliens in removal proceedings are similarly
situated to aliens in inadmissibility proceedings, ruling instead that any disparate
treatment between the two classes of aliens was founded upon a rational basis.
See id. Jurado-Gutierrez is entirely consistent with our disposition.

                                         -12-
In re Brieva-Perez, 23 I. & N. Dec. 766, 772-3 (BIA 2005)). The BIA’s

interpretation of the INA is entitled to deference. See Chevron, U.S.A., Inc. v

Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Accordingly, because

Mr. Falaniko’s ground of removal has no statutory counterpart under INA

§ 212(a), he is not eligible for relief under INA § 212(c).

               2. Retroactive Application of 8 C.F.R. § 1212.3(f)(5)

      Mr. Falaniko next argues that 8 C.F.R. § 1212.3(f)(5) violates St. Cyr by

retroactively establishing a new scheme for deciding his eligibility for a § 212(c)

waiver. As we have already discussed, however, the regulation merely codified

existing law. See Vue, 496 F.3d at 863. Indeed, 8 C.F.R. § 1212.3(f)(5) simply

clarified the agency’s preexisting comparable-grounds analysis after the Supreme

Court issued its decision in St. Cyr. The regulation is not impermissibly

retroactive because it does not deny or impair vested rights, nor does it create new

obligations, impose new duties, or attach new disabilities. See Landgraf v. USI

Film Products, 511 U.S. 244, 269 (1994).

                       3. Definition of “Aggravated Felony”

      Lastly, Mr. Falaniko contends the BIA failed to find a corresponding

statutory ground of inadmissibility because it analyzed the wrong definition of

“aggravated felony.” He maintains the BIA reviewed 8 U.S.C. § 1101(a)(43)(A),

which includes “sexual abuse of a minor” in its definition of “aggravated felony,”

rather than § 1101(a)(43)(F), which defines “aggravated felony” as a “crime of

                                         -13-
violence.” It is clear from the BIA’s decision, however, that the agency correctly

examined § 1101(a)(43)(F). The BIA referenced “sexual abuse of a minor” while

discussing the statutory-counterpart rule, but immediately cited an agency case

that applied that rule to the definition of “aggravated felony” found at

§ 1101(a)(43)(F). Although the BIA cited § 1101(a)(43)(A) at the conclusion of

its decision, it had already rejected Mr. Falaniko’s eligibility arguments and was

addressing his retroactivity contention. The BIA explained the Supreme Court’s

recognition in St. Cyr that the amended definition of “aggravated felony” clearly

applied retroactively, while the provision of IIRIRA repealing § 212(c) did not.

The BIA’s citation of § 1101(a)(43)(A) is admittedly curious given that the

Supreme Court did not specifically reference that subsection, but in the context of

the BIA’s decision, the citation does little more than exemplify the retroactive

application of the entire amended definition. Under these circumstances, we

cannot say the BIA examined the wrong definition of “aggravated felony.”

      The petition for review is DENIED.

                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




                                         -14-
