                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

YEWHALASHET ABEBE,                      
                          Petitioner,        No. 05-76201
                 v.
                                             Agency No.
                                             A026-810-941
ERIC H. HOLDER   JR., Attorney
General,                                        ORDER
                        Respondent.
                                        
                    Filed August 18, 2009

   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.

                           Order;
                  Dissent by Judge Berzon


                           ORDER

   The petition for en banc panel rehearing and the petition for
full court rehearing en banc are denied. See Fed. R. App. P.
40; Fed. R. App. P. 35; Cir. R. 35-3.




                             11219
11220                    ABEBE v. HOLDER
BERZON, Circuit Judge, with whom PREGERSON,
REINHARDT, THOMAS, WARDLAW, W. FLETCHER,
and PAEZ, Circuit Judges, join, dissenting from denial of full
court rehearing:

   The en banc majority opinion in this case reverses a thirty
year old precedent; does so in answer to a question not raised
or briefed by either party; comes to a conclusion in conflict
with that of the Attorney General and the rule applied in every
circuit, as well as in conflict with the necessary assumption of
a Supreme Court case, INS v. St. Cyr, 533 U.S. 289 (2001);
and in doing so distorts the fundamental premises of equal
protection law. Moreover, there was no reason whatsoever to
embark on this ill-fated adventure, as the concurrence joined
by three members of the en banc court persuasively shows.

   Although this court has never held a full court en banc, the
partial court en banc process depends upon en banc panels
sticking to issues appropriately before them and taking heed
of the ramifications of their decisions for broad, unrelated
areas of law. Here the bare panel majority did neither. If ever
a case merited full court en banc consideration, this one did.

                    I.   BACKGROUND

   In his deportation proceeding, Abebe, a lawful permanent
resident (“LPR”), argued that he was eligible for discretionary
relief from deportation, invoking the now-repealed INA
§ 212(c), which provided that “[a]liens lawfully admitted for
permanent residence who temporarily proceeded abroad vol-
untarily . . . and who are returning to a lawful unrelinquished
domicile of seven consecutive years, may be admitted in the
discretion of the Attorney General without regard to the pro-
visions of subsection (a) [(establishing classes of excludable
aliens)].” Immigration and Naturalization Act, 8 U.S.C.
§ 1182(c) (repealed 1996). Although § 212(c) by its terms
applied only to LPRs in exclusion proceedings, “through a
decades-long series of administrative and judicial decisions,
                           ABEBE v. HOLDER                        11221
the Attorney General’s statutory authority to grant relief from
exclusion has been interpreted to carry with it a similar
authority to grant relief from deportation under certain cir-
cumstances.” Abebe v. Gonzales, 493 F.3d 1092, 1095 (9th
Cir. 2007). And, under the Supreme Court’s decision in St.
Cyr, even though § 212(c) was repealed in 1996, relief
remains available to aliens who pled guilty prior to the effec-
tive date of the repeal and who “would have been eligible for
§ 212(c) relief at the time of their plea under the law then in
effect.” 533 U.S. at 326.

   The Abebe three-judge panel of which I was a member held
that in Abebe’s particular circumstances, a recent agency reg-
ulation validly precluded relief. See 8 C.F.R. § 1212.3(f)(5).
I concurred on the ground that Komarenko v. INS, 35 F.3d
432 (9th Cir. 1994), precluded the contrary conclusion, but
urged en banc consideration of Komarenko. The court then
decided to hear the case en banc, presumably to consider the
continued viability of Komarenko.

  I continue to believe that Komarenko was wrongly decided,
as Judge Thomas’s en banc dissent explains, and should be
overruled. Abebe v. Mukasey, 554 F.3d 1203, 1217-1218 (9th
Cir. 2009) (Thomas, J., dissenting). For present purposes,
however, the dispute over whether Komarenko was rightly or
wrongly decided doesn’t matter, because what the en banc
court ultimately addressed was an entirely different question.1
A six-judge majority of the en banc panel sidestepped the
Komarenko question altogether and instead overruled a prior
opinion, Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.
1981), the validity of which Komarenko assumed. See Abebe,
554 F.3d at 1207. Yet, no party to the case had suggested this
course, and there was no briefing on it.2
  1
    Judge Clifton’s concurrence and Judge Thomas’s dissent in the en banc
panel decision set out the parameters of the Komarenko issue.
  2
    The subject of Tapia-Acuna’s validity was discussed only briefly at
oral argument. At approximately the thirty-five minute mark, Chief Judge
11222                      ABEBE v. HOLDER
   Overruling Tapia-Acuna was not only a bolt from the blue,
it was entirely unnecessary to the result the majority reached
(as Judge Clifton’s concurrence shows), and was based on a
fundamental misunderstanding of Tapia-Acuna’s holding.
Even more disturbing, the en banc majority’s overruling of a
nearly thirty-year-old precedent does not resolve the equal
protection issue before the three-judge panel and the en banc
court in this case, and, by pretending that it does, clashes
resoundingly with Supreme Court and Ninth Circuit case law.

   To illustrate this last, supervening problem: Imagine Abebe
is in one courtroom in Immigration Court, and another LPR
— let’s call him Joe — is in a courtroom down the hall. Years
earlier, both Abebe and Joe were convicted of the same crime
in the same state court. The Department of Homeland Secur-
ity (DHS) now wants to remove both of them on the basis of
their state convictions. It charges Joe with deportability3 on a
ground that would also make him inadmissible (say, the
ground of having been convicted of a crime involving moral
turpitude), whereas it charges Abebe with deportability on a
ground that would not make him inadmissible (say, the
ground of having been convicted of an aggravated felony).
Both Abebe and Joe seek to apply for relief from removal
under the former INA § 212(c). Following the “statutory

Kozinski asked Respondent’s counsel, “Is it correct to say that if Tapia-
Acuna were overruled, if it weren’t on the books, the Komarenko problem
would drop out altogether?” Respondent’s counsel answered, “I think
that’s right. I think that’s right.” When Judge Callahan asked Respon-
dent’s counsel to clarify his answer, he stated, “Well, certainly you don’t
need to overrule it. Arguably, you could clarify it and say that we think
Komarenko was correctly decided, because Komarenko of course was
based on the validity of Tapia-Acuna, so the Court I suppose could clarify
Tapia-Acuna if it wished. But certainly it does not need to overrule
[Tapia-Acuna].” Respondent’s counsel never argued that Tapia-Acuna
should be overruled.
   3
     Following the en banc majority’s usage, see Abebe, 554 F.3d at 1205,
n.3, I use the terms “deportability” and “removability,” and the terms “ex-
cludability” and “inadmissibility,” interchangeably throughout this opin-
ion.
                       ABEBE v. HOLDER                    11223
counterpart” rule, codified at 8 C.F.R. § 1212.3(f)(5), the
Immigration Judge (IJ) rules that Joe is eligible to apply for
such relief because his charged ground has a statutory coun-
terpart in inadmissibility. Following the same regulation, the
IJ in Abebe’s case, down the hall, rules that Abebe is not eli-
gible to apply for relief and orders him removed.

   Abebe then comes to us — as he in fact did — to complain
that he’s been denied equal protection of the laws, because the
class of deportable LPRs to which he belongs — those who
are charged with grounds of deportability that have no statu-
tory counterpart in inadmissibility — is treated differently
from another class of deportable LPRs — those charged with
grounds of deportability that would make them inadmissible,
even when both are being deported for committing the same
offense. This classification is irrational, says Abebe, so the
DHS has to treat me the same as it treated Joe.

  What does the majority opinion say in response? Abebe, it
says, you have no complaint, because both you and Joe should
have been — or at least could have been — deported. DHS
doesn’t have to make § 212(c) relief available to any deport-
able aliens; we erred thirty years ago in Tapia-Acuna when
we said that it did.

   That answer both misapprehends and is wholly unrespon-
sive to Abebe’s equal protection claim. The core of equal pro-
tection law is classification, not entitlement. That neither
Abebe nor Joe may be entitled to apply for § 212(c) relief
does not change the fact that the government applied a policy
classifying Joe as eligible and Abebe as ineligible, and pro-
poses to throw Abebe but not Joe out of this country. That
policy either violates equal protection, or it doesn’t. Overrul-
ing Tapia-Acuna does not tell us whether Abebe’s constitu-
tional right to equal protection was violated, it just distorts
equal protection law.
11224                     ABEBE v. HOLDER
                    II.     TAPIA-ACUNA

   Again, in overruling Tapia-Acuna, the en banc panel
decided a question that was never briefed or argued by either
party. The panel did not call for briefs on the question, and it
was mentioned in oral argument only in passing. To decide a
question that involves overruling a nearly thirty-year-old
opinion of this Court — concurred in by the agency and con-
sistent with the law of the only other circuit to have consid-
ered the question — without providing notice to the parties
that such a question is in play and without soliciting their
positions, is both unprecedented and inconsistent with the
goal of informed decisionmaking toward which we strive.

   The resulting opinion demonstrates that there is good rea-
son why en banc panels — or any panels — don’t usually
destroy foundational decisions with no input from the parties.
The en banc majority characterizes Tapia-Acuna as holding
“that there’s no rational basis for providing section 212(c)
relief from inadmissibility, but not deportation.” Abebe, 554
F.3d at 1207. The majority suggests it was Tapia-Acuna and
its Second Circuit counterpart, Francis v. INS, 532 F.2d 268
(2d Cir. 1976), that forced the agency to extend § 212(c) relief
to aliens in deportation proceedings in the first place. Id. at
1205.

   Not so. In fact, the agency had been extending § 212(c)
relief to aliens in deportation proceedings for decades before
Francis and Tapia-Acuna were decided. In 1940, the Attorney
General held that the Seventh Proviso of the 1917 Immigra-
tion Act permitted him to grant nunc pro tunc deportation
waivers to LPRs who had traveled abroad and been readmit-
ted, but who were subsequently placed in deportation pro-
ceedings because of a conviction that could have been the
basis for an inadmissibility charge. Matter of L-, 1 I. & N.
Dec. 1 (AG 1940). Although the Immigration and Nationality
Act of 1952 replaced the Seventh Proviso with the slightly
differently worded INA § 212(c), the Attorney General held
                        ABEBE v. HOLDER                    11225
in 1955 that Congress intended § 212(c) relief to be available
to LPRs in deportation proceedings, just as the Seventh Pro-
viso had been. Matter of S-, 6 I. & N. Dec. 392 (BIA 1954,
AG 1955).

   Thus, by the time the Second Circuit decided Francis in
1976, it was settled agency interpretation that § 212(c) relief
was available to certain LPRs in deportation proceedings —
i.e., those who had traveled abroad after their conviction,
were readmitted without being charged with inadmissibility,
and were later placed in deportation proceedings. Francis did
not question the agency’s statutory authorization to grant
§ 212(c) relief nunc pro tunc to LPRs in deportation proceed-
ings. Instead, it held that, if the agency did so, the equal pro-
tection component of the Fifth Amendment required that
relief also be available to LPRs who had not traveled abroad
prior to being placed in deportation proceedings, ruling that
there is no rational basis to discriminate between LPRs in
deportation proceedings who had previously traveled abroad
and LPRs in deportation proceedings who had not.

   Later that same year, in Matter of Silva, 16 I. & N. Dec. 26
(BIA 1976), the BIA acquiesced in Francis in all circuits
except ours, where contrary precedent was controlling. See
Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir. 1972). Several
years later, in Tapia-Acuna, we overruled Arias-Uribe and,
following the Second Circuit’s position in Francis and the
BIA’s acquiescing opinion in Silva, held that aliens in depor-
tation proceedings who had traveled abroad and aliens in
deportation proceedings who had not traveled abroad must be
treated the same so long as they are otherwise similarly situ-
ated. In other words, Tapia-Acuna just brought us into line
with the law as applied by the then-INS and in the all other
circuits.

   The majority, ignoring this evolution, provides a superficial
explanation of why Congress might rationally have limited
§ 212(c) relief to admitted aliens: It might have wanted to
11226                  ABEBE v. HOLDER
“create an incentive for deportable aliens to leave the coun-
try[,]” because the relief available upon reentry would be
broader than that available in deportation proceedings, and
thus, “[b]y encouraging such self-deportation, the government
could save resources it would otherwise devote to arresting
and deporting these aliens.” Abebe, 554 F.3d at 1206. But
Tapia-Acuna does not involve the comparison of (1) LPRs in
deportation proceedings who are currently inside the country
with (2) LPRs in exclusion proceedings who are currently at
a port of entry and hoping to be readmitted, as the Abebe
majority assumes. Rather, Tapia-Acuna involves the compari-
son of (3) LPRs in deportation proceedings who had previ-
ously departed and returned to the United States with (4)
LPRs in deportation proceedings who have not left the United
States since their conviction. As Judge Thomas’s en banc dis-
sent persuasively argues, the hypothetical cost-saving ratio-
nale that the majority suggests might have motivated
Congress’s differential treatment of aliens in classes (1) and
(2) does not pass even the most lenient rational-basis scrutiny,
when one recognizes that it is in fact aliens in classes (3) and
(4) that Tapia-Acuna is comparing, both of whom are in
deportation proceedings inside the United States, and both of
whom the government has had to expend resources to appre-
hend. Id. at 1215-16 (Thomas, J., dissenting).

   The upshot is that even if the en banc majority had been
deciding a question properly before it, it decided it incor-
rectly. Moreover, the en banc majority was obliged to square
its holding with the Supreme Court’s decision in St. Cyr,
which it does not do. St. Cyr simply makes no sense if the
majority opinion in this case is right.

   In St. Cyr, the Supreme Court held that although Congress
repealed § 212(c) when it enacted the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”) in
1996, § 212(c) relief must remain available to LPRs whose
plea agreements were entered before IIRIRA went into effect,
because retroactive application of the amendment would
                        ABEBE v. HOLDER                    11227
impermissibly upset the reasonable reliance of aliens who
pled guilty to crimes under the pre-IIRIRA regime. St. Cyr,
533 U.S. at 323-24 (quoting Landgraf v. USI Film Prod., 511
U.S. 244, 270 (1994)). Importantly for present purposes, the
petitioner in St. Cyr was in deportation proceedings, not
exclusion proceedings, id. at 293, yet the Court did not con-
sider that fact an obstacle to his eligibility to § 212(c) relief.
Before reaching the merits of St. Cyr’s retroactivity argument,
the Supreme Court recounted the legislative history of
§ 212(c) and cited Matter of Silva, the BIA opinion in which
the agency acquiesced in the very equal protection analysis
that the en banc majority in this case has thrown overboard,
for the understanding that § 212(c) relief was available:

    Like [the Seventh Proviso], § 212(c) was literally
    applicable only to exclusion proceedings, but it too
    has been interpreted by the Board of Immigration
    Appeals (BIA) to authorize any permanent resident
    alien with ‘a lawful unrelinquished domicile of
    seven consecutive years’ to apply for a discretionary
    waiver from deportation. See Matter of Silva, 16 I.
    & N. Dec. 26, 30 (1976) (adopting position of Fran-
    cis v. INS, 532 F.2d 268 (C.A.2 1976)).

St. Cyr, 533 U.S. at 295. St. Cyr did not question this reading
of § 212(c). Instead, it proceeded on the understanding that
§ 212(c) relief was available in both deportation and exclu-
sion proceedings, necessarily assuming that, as Silva and
Francis had ruled, there was no rational basis to distinguish
between LPRs in deportation proceedings who had traveled
abroad and those who had not.

   The en banc majority’s decision to overrule Tapia-Acuna
(this Circuit’s counterpart to Francis v. INS) and implicitly to
invalidate the regulation allowing § 212(c) to be administered
to LPRs in deportation proceedings thus undermines the first
premise of St. Cyr. Indeed, the en banc majority in this case
would seem to revive the very unfairness rectified in St. Cyr
11228                   ABEBE v. HOLDER
— namely, making deportable aliens who relied on the agen-
cy’s practice with regard to granting waivers from deportation
by pleading guilty to crimes from which they might have
received waivers under § 212(c) relief under the applicable
law at the time they pled. Now, those aliens are back in the
same position, because the basis for granting them a waiver
from deportation has been torn to shreds — with notice to no
one — by the en banc majority in this case.

               III.   EQUAL PROTECTION

  But — while bad enough — that’s not the worst of what the
en banc majority has done. It decides a question that not only
was not raised, but that has nothing to do with settling the
equal protection challenge that was raised.

   The first step in an equal protection analysis is to determine
what classification has been applied to the petitioner. As the
forgoing discussion shows, Abebe’s status as a deportable
alien and his prior travel history are utterly beside the point
in deciding whether he was denied equal protection of the
law, as those two classifications had nothing to do with why
the agency held him ineligible. Instead, the BIA held Abebe
ineligible for § 212(c) relief because he fell on the wrong side
of the agency’s statutory counterpart rule. Under that rule, as
between deportable aliens who have not left the United States,
the agency will not remove those charged with removal based
on a statutory ground that has an exclusion counterpart, but
will remove those charged with a removable ground with no
such counterpart — even if both committed the same crime.

   We explained in Servin-Espinoza v. Ashcroft, 309 F.3d
1193 (9th Cir. 2002), applying Allegheny Pittsburgh Coal Co.
v. County Comm’n of Webster County, 488 U.S. 336 (1989),
that when confronted with an equal protection challenge to an
administrative policy, we must analyze the rationality of the
classification the agency is actually making and applying to
the petitioner, not the rule the governing statute establishes, if
                            ABEBE v. HOLDER                          11229
the two are different. Cf. Yick Wo v. Hopkins, 118 U.S. 356,
373-74 (1886) (“Though the law itself be fair on its face, and
impartial in appearance, yet, if it is applied and administered
by public authority . . . so as practically to make unjust and
illegal discriminations between persons in similar circum-
stances . . . the denial of equal justice is still within the prohi-
bition of the [C]onstitution.”); McQueary v. Blodgett, 924
F.2d 829, 835 (9th Cir. 1991) (“To conclude that the relevant
Washington sentencing law is evenhandedly applicable does
not entirely dispose of the matter, however. The equal protec-
tion clause also requires that the law be evenhanded as actu-
ally applied.“) (emphases in original).

   Servin-Espinoza involved “an equal protection challenge to
an administrative policy that violated a statutory command.”
309 F.3d at 1197.4 The government argued that, because the
governing statute created a classification that was supportable
on rational basis review and that would have rendered the
petitioner ineligible for the benefit he sought, no equal protec-
tion violation had occurred. Id. at 1196. Servin-Espinoza held
that the rationality of the statute’s classification was beside
the point, because it was not the statute’s classification that
had been applied to the petitioner to deny him the benefit, but
   4
     Coincidentally, the administrative policy at issue in Servin-Espinoza
was also related to the provision of § 212(c) relief. Servin-Espinoza
addressed the narrow question whether the INS violated equal protection
when it denied § 212(c) relief to deportees during the window of time
between the BIA’s decision in In re Fuentes-Campos, 21 I. & N. Dec. 905
(BIA 1997) (which held that AEDPA § 440(d), which barred § 212(c)
relief, operated against LPRs in deportation proceedings but not those in
exclusion proceedings) and our decision in United States v. Estra-
da-Torres, 179 F.3d 776 (9th Cir. 1999) (which held that the BIA’s inter-
pretation in Fuentes-Campos was contrary to the meaning of the statute).
I do not cite Servin-Espinoza for its substantive § 212(c) holding, how-
ever, or even for its proposition that a more demanding variant of rational
basis review might apply to an administrative policy in violation of a stat-
utory command. Rather, I cite it only for the manner in which it went
about identifying the relevant classification to which equal protection
analysis had to be applied.
11230                        ABEBE v. HOLDER
rather a different classification fashioned by administrative
policy. Following the Supreme Court’s analysis in Allegheny
Pittsburgh, which similarly considered an equal protection
challenge to a tax assessment policy that violated a state tax
law, see 488 U.S. at 346, Servin-Espinoza directed its equal
protection inquiry at the classification the agency had actually
applied to the petitioner.5

   Applying that common-sense understanding here clarifies
where the en banc majority went fundamentally wrong.
Abebe’s argument is that the agency’s application of its statu-
tory counterpart rule violated his equal protection rights. He
does not complain of the statute’s apparent classification of
LPRs in exclusion proceedings as eligible and those in depor-
tation proceedings as ineligible (a classification the agency
has ignored for decades). Nor does he complain of the agen-
cy’s former rule that deportees were eligible for § 212(c)
waivers only if they had previously traveled abroad (a rule
invalidated by Francis and Tapia-Acuna, and renounced by
the agency in Matter of Silva). And no wonder — neither of
these rules was applied to him. Thus, the en banc majority’s
overruling of Tapia-Acuna does nothing to resolve Abebe’s
equal protection challenge one way or the other, because the
   5
     That is not to say, of course, that an alien who is simply denied a bene-
fit for a reason that is in violation of statutory authority necessarily has an
equal protection claim. What we have here is an agency policy formally
enunciated and consistently and long-applied, approved in BIA case law
and embodied in a formally promulgated regulation. See Servin-Espinoza,
309 F.3d at 1198 (noting that the INS policy was a proper focus for equal
protection analysis because it “systematically favored excludables over
deportables. This difference in treatment was not isolated or sporadic [but]
. . . based on a policy formally announced . . . [by the BIA] and consis-
tently followed [by the agency] . . . .”) (citation omitted); compare Chan
v. Reno, 113 F.3d 1068, 1074 (9th Cir. 1997) (rejecting equal protection
challenge based on the allegation that the INS treated another alien more
favorably than the petitioner because “[a]ny other conclusion would create
an absurd result: whenever the INS granted an alien relief to which he was
not entitled, any future attempts to apply the law correctly would generate
an equal protection claim.”).
                        ABEBE v. HOLDER                    11231
classification Tapia-Acuna held to be invalid was simply not
the distinction applied to Abebe to make him ineligible for
relief.

   Put another way, what the majority’s approach misses is
that the core of the equal protection right is “the denial of
equal treatment resulting from the imposition of the barrier,
not the ultimate inability to obtain the benefit.” Northeastern
Fla. Chapter of Associated Gen. Contractors of Am. v. City
of Jacksonville, 508 U.S. 656, 666 (1993). “When the govern-
ment erects a barrier that makes it more difficult for members
of one group to obtain a benefit than it is for members of
another group, a member of the former group seeking to chal-
lenge the barrier need not allege that he would have obtained
the benefit but for the barrier . . . .” Id.; see also Turner v.
Fouche, 396 U.S. 346, 362 (1970) (“We may assume that the
[plaintiffs] have no right to be appointed to the . . . board of
education. But [they] do have a federal constitutional right to
be considered for public service without the burden of invidi-
ously discriminatory disqualifications”). Whether Abebe was
entitled to § 212(c) relief as a person in deportation rather
than exclusion proceedings is thus entirely irrelevant to his
core equal protection challenge.

   Once we have isolated the proper focus of the equal protec-
tion analysis, it becomes clear that there is no avoiding the
Komarenko question. Either there is a rational basis for the
statutory counterpart classification — the classification actu-
ally applied — or there is not.

   Perhaps recognizing that overruling Tapia-Acuna doesn’t
get it where it needs to go, the en banc opinion attempts to
obviate the need for an equal protection analysis altogether,
by stating that “[u]nder its plain language, section 212(c)
gives the Attorney General discretion to grant lawful perma-
nent residents relief only from inadmissibility—not deporta-
tion.” Abebe, 554 F.3d at 1205. It then reasons that “[s]ince
petitioner was not eligible for section 212(c) relief in the first
11232                       ABEBE v. HOLDER
place, the BIA could not have committed an equal protection
violation by denying him such relief.” Id. at 1207.

   That leap is simply wrong, as should be apparent by now.
Again, equal protection law is concerned with equal treat-
ment, not with entitlement. If a governmental agency misin-
terpreted a statute to require that all schoolchildren be given
$5.00 — or if a court mistakenly held that the Constitution
required that all schoolchildren be given $5.00 — but the
agency then gave the $5.00 only to white children, not to
blacks or Asians, it would be no answer to the equal protec-
tion claim by black or Asian children that neither they nor the
white children were entitled to the $5.00 in the first place.
Similarly, if, as here, there is a regularly applied, official
administrative policy conferring eligibility for § 212(c) relief
on one group of deportees but not another, that policy is not
exempt from the equal protection clause’s strictures because
the agency misconstrued the statute, or because the equal pro-
tection analysis that generated the agency’s approach to
applying the statute was wrong. Either way, the on-the-ground
result was based on a second-level classification, which was
the one actually applied to Abebe, and which either is or is
not an irrational classification of similarly situated LPRs. The
lack of entitlement might become relevant at the remedy
stage, but it is not relevant at the violation stage.6

   Pertinent to any remedy stage is the majority’s suggestion
that its decision might prompt the agency “to reconsider [8
C.F.R. § 1212.3(f)(5)], and eventually repeal it,” thus ceasing
  6
    The majority later maintains that, plain language notwithstanding,
“[t]he INS may certainly choose to treat different classes of aliens the
same, even though the statute does not.” Abebe, 554 F.3d at 1207. That
is not right either, as an agency has the discretion to act only within the
boundaries allowed by its governing statute. See Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208 (1988). If providing relief to deportees is
foreclosed by the plain language of the statute, the agency may not elect
to do otherwise. It could, however, be required to do so as a matter of con-
stitutional mandate — which is exactly what happened in Francis.
                        ABEBE v. HOLDER                    11233
to offer § 212(c) waivers to all deportees. Id. There are two
problems with this suggestion as a solution to the real equal
protection problem raised here, both of which stem from the
fact that providing § 212(c) relief to deportees is long-
established agency policy.

   First, as Servin-Espinoza explained, again relying on the
Supreme Court’s holding in Allegheny Pittsburgh, an agen-
cy’s perfectly proper change of policy going forward does not
in any way mitigate a past equal protection violation, or pro-
vide a remedy for it. See Servin-Espinoza, 309 F.3d at 1199
(“In this case, as in Allegheny Pittsburgh, the proper remedy
under the equal protection guarantee is to provide equality of
treatment. Because we cannot turn back the hands of time and
erase the favorable treatment of excludable aliens, the only
feasible way to remedy the discrimination suffered by Ser-
vin-Espinoza is to grant him the same opportunity to apply for
§ 212(c) relief that was systematically granted to [similarly
situated] excludable aliens . . . .”). So, if the majority had
decided that Komarenko erroneously approved an impermiss-
ibly irrational classification, the only proper relief would have
been to direct the agency not to deport Abebe and allow him
the opportunity to apply for § 212(c) relief.

   Second, if the agency takes up the majority’s invitation and
precludes relief in the future to all deportees, we could have
a second St. Cyr on our hands. St. Cyr held that a legislative
change — the passage of the 1996 Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA), repeal-
ing the former § 212(c) — could not apply retroactively to
deny relief to LPRs who entered guilty pleas prior to
IIRIRA’s passage, because such retroactive application would
“clearly attach[ ] a new disability[ ] in respect to transactions
or considerations already past.” 533 U.S. at 321 (internal quo-
tation omitted). St. Cyr thus mandated that § 212(c) relief
remain available for LPRs who entered guilty pleas, just as it
was available prior to IIRIRA and/or AEDPA. On St. Cyr’s
logic, a repeal of the agency’s longstanding policy making
11234                   ABEBE v. HOLDER
relief available to deportees would quite possibly fare no bet-
ter on a retroactivity analysis, at least as applied to those who
were convicted via guilty plea (as was Abebe).

   And what if the agency declines the invitation, and contin-
ues to apply the statutory counterpart rule and the correspond-
ing regulation as it is currently written? If that happens, we
will have to decide the viability of Komarenko all over again,
because the en banc majority opinion has not decided whether
the statutory counterpart rule actually applied and embodied
in 8 C.F.R § 1212.3(f)(5) complies with equal protection.

   So, all in all, the majority opinion not only fails to resolve
the case before it, but also fails to set an intelligible rule for
future cases. Worst of all, the majority opinion makes a hash
of equal protection law generally for the future, by allowing
courts to consider what the government’s classification policy
should be, rather than what it is, when addressing an equal
protection claim.

  The bottom line is that there is simply no escaping the
Komarenko question. If the en banc panel was determined to
deny Abebe’s petition for review, it should have done so by
upholding the statutory counterpart rule, affirming
Komarenko without questioning the validity of Tapia-Acuna,
as the concurrence would have done.

                    IV.    CONCLUSION

   Among the ultimate goals of the en banc process are ensur-
ing the coherence of our case law, its consistency with
Supreme Court law, and, when possible, its agreement with
that of the other circuits. With its overruling of Tapia-Acuna
and its implicit invalidation of a federal regulation, the en
banc majority in Abebe v. Mukasey has advanced none of
these goals. Instead, it has casually overturned nearly thirty
years of our own case law and an even longer period of settled
agency interpretation, throwing future agency practice into
                        ABEBE v. HOLDER                    11235
uncertainty. It has created a conflict with the only other circuit
court to have considered the question directly, see Francis,
532 F.2d 268, with the law actually applied by the agency and
by every other circuit, and with the underpinnings of the
Supreme Court’s decision in St. Cyr. More broadly, the dis-
torted analysis of Abebe’s equal protection claim threatens
our most basic understandings of equal protection law, with
ramifications for cases in entirely different substantive areas.

   For all these reasons, I respectfully dissent from the deci-
sion not to reconsider this indefensible opinion in a full court
en banc.
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