                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2007

Calderon-Minchola v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3056




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                                                NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                    __________

                      No. 06-3056
                      __________

      DENIS SEGUNDO CALDERON-MINCHOLA,

                                       Petitioner,

                            v.

            ATTORNEY GENERAL OF THE
                 UNITED STATES,

                                       Respondent.


                     ____________

              On Petition for Review from an
         Order of the Board of Immigration Appeals
                 (Board No. A37-919-176)
       Immigration Judge: Honorable Walter Durling
                       ____________

        Submitted Under Third Circuit LAR 34.1(a)
                   December 10, 2007

Before: McKEE, CHAGARES and HARDIMAN, Circuit Judges.

               (Filed: December 12, 2007)

                     ____________

               OPINION OF THE COURT
                    ____________
HARDIMAN, Circuit Judge.

       Denis Segundo Calderon-Minchola (Calderon) petitions for review of an order of

the Board of Immigration Appeals (BIA), which affirmed an order of an Immigration

Judge (IJ) finding him removable and pretermitting his application for a waiver of

inadmissibility under former § 212(c) of the Immigration and Nationality Act (INA). For

the reasons set forth below, the petition will be denied.

                                              I.

       Calderon is a 38 year-old citizen of Peru who became a lawful permanent resident

of the United States in 1983. In 1997, Calderon was tried and convicted in the Court of

Common Pleas of Philadelphia County of aggravated assault, criminal conspiracy,

possessing instruments of a crime, simple assault, and recklessly endangering another

person. He was sentenced to not less than 2 ½ years to no more than 10 years

incarceration.

       In 2005, Calderon was detained by U.S. Immigration and Customs Enforcement

while reporting on parole and served with a Notice to Appear charging him with being

removable as an aggravated felon who committed a crime of violence under 8 U.S.C.

§ 1101(a)(43)(F). The IJ sustained the charge, finding that Calderon’s aggravated assault

conviction constituted a “crime of violence” under the statute. The IJ also pretermitted

Calderon’s request for a waiver of inadmissibility under former § 212(c), finding that

Calderon was statutorily ineligible. The BIA affirmed the IJ, and Calderon now appeals

to this Court.

                                              2
                                            II.

       Former § 212(c) of the INA provided the Attorney General with discretion to

waive the exclusion of certain lawful permanent residents who sought reentry to the

United States after a temporary departure and were found excludable under one of the 33

grounds of exclusion set forth in § 212(a). Section 212(c) was repealed when the Illegal

Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208

(1996) became law. Because the Supreme Court subsequently held that Congress did not

intend for IIRIRA to apply retroactively to lawful permanent residents who pleaded guilty

to crimes before the passage of IIRIRA, INS v. St. Cyr, 533 U.S. 289 (2001), the INS

permitted lawful permanent residents with convictions entered before April 1, 1997 to

apply for a § 212(c) waiver. See 8 C.F.R. pts. 1003, 1212, and 1240.

       The plain language of § 212(c) did not affect lawful permanent residents who had

never left the country and were found deportable under one of the numerous grounds of

deportation listed in § 241 of the INA, and for many years the BIA refused to grant

§ 212(c) waivers to lawful permanent residents in deportation proceedings. See Matter of

Arias-Uribe, 13 I. & N. Dec. 696 (B.I.A. 1971). However, in Francis v. INS, 532 F.2d

268 (2d Cir. 1976), the Second Circuit found that the BIA’s rule violated the guarantee of

equal protection implicit in the Due Process Clause of the Fifth Amendment, and held that

deportable lawful permanent residents who had not left the country are eligible for

§ 212(c) waivers to the same extent as those seeking to reenter the country. Id. at 272-73.



                                             3
       In the wake of Francis, the BIA struggled to formulate an appropriate test for

determining whether a deportee was similarly situated to an excludee, but ultimately

settled upon a “comparable grounds” test in which it looked to whether the “ground of

deportation charged is also a ground of inadmissibility.” See, e.g., Matter of Wadud, 19 I.

& N. Dec. 182, 184 (B.I.A. 1984). In 2004, the BIA changed course somewhat,

promulgating a regulation making a lawful permanent resident ineligible for a § 212(c)

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

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

“whether Congress has employed similar language to describe substantially equivalent

categories of offenses.” In re Blake, 23 I. & N. Dec. 722 (B.I.A. 2005). Notably, the

BIA has expressly found that a lawful permanent resident, like Calderon, who is found

deportable for having committed an aggravated felony crime of violence, is not eligible to

apply for a § 212(c) waiver. In re Brieva-Perez, 23 I. & N. Dec. 766 (B.I.A. 2005). In

Brieva, the BIA rejected petitioner’s argument that his conviction for a crime of violence

had a statutory counterpart in § 212's ground of exclusion for crimes of moral turpitude,

noting the different language used to describe crimes of violence and crimes involving

moral turpitude and the “significant variance in the types of offenses covered by these

two provisions.” Id. at 773.



                                            III.



                                             4
       Calderon asserts two principal arguments on appeal. First, he submits that the

Blake-Brieva rule is inconsistent with past BIA precedent and creates the same “Equal

Protection conundrum” identified in Francis. Calderon argues that the BIA must instead

look to the underlying offense itself, not the statutory ground of removal actually charged,

to determine if it could have been addressed under a specific ground of exclusion.

Because his offense also could have subjected him to removal for having committed a

crime of moral turpitude, which does have a statutory counterpart in § 212, this approach

would make Calderon eligible for a waiver. Second, Calderon maintains that, even if the

Blake-Brieva rule is correct, the BIA misapplied it in concluding that the “crime of

violence” ground of removability has no statutory counterpart in § 212.

       We recently rejected both of these arguments in Coroleo v. Gonzales, 476 F.3d

158 (3d Cir. 2007), which was decided after Calderon’s opening brief was filed. Like

Calderon, the petitioner in Coroleo was charged with being removable for having

committed a crime of violence and argued that he was eligible for a § 212 waiver because

his underlying offense, attempted murder, was also a crime of moral turpitude. We

disagreed, and instead endorsed the BIA's reasoning in Blake and Brieva, that “the

underlying crime for which [petitioner] was convicted plays no role” in determining

eligibility for a § 212(c) waiver. Id. at 168. Rather, once the government has

categorized the ground of removal, and that categorization has been sustained, the inquiry

“focuses on whether this statutory ground for removal is substantially equivalent to any

of the statutory grounds for exclusion in INA § 212(a).” Id. (emphasis in original). It is

                                             5
“irrelevant that [petitioner’s] conviction for attempted murder could have subjected him

to removal as an alien convicted of a crime of moral turpitude.” Id. We then proceeded

to apply the Blake-Brieva test and concluded that the “crime of violence” ground of

removal had no statutory counterpart in § 212, thus making the petitioner statutorily

ineligible to apply for a § 212(c) waiver. Id.

       Calderon urges us to reconsider our holding in Coroleo, arguing that we

overlooked the substantial equal protection problem created by the BIA’s Blake-Brieva

approach. In support of this argument, Calderon has submitted the recent decision of the

Second Circuit in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), in which the court

rejected the Blake-Brieva rule based upon “the equal protection principle articulated in

Francis” and held that a deportable lawful permanent resident with an aggravating felony

conviction is eligible for a § 212(c) waiver “if his or her particular aggravated felony

offense could form the basis of exclusion under § 212(a) as a crime of moral turpitude”

Id. at 104. As Congress “did not employ similar terms when writing the grounds of

exclusion and grounds of deportation because it had no need to,” the Second Circuit

found it was “an exercise in futility to search for similar language to gauge whether equal

protection is being afforded.” Id. at 102.

       We are unpersuaded. Contrary to Calderon’s assertions, we did consider the equal

protection implications of the Blake-Brieva rule in Coroleo. Indeed, we noted that the

Ninth Circuit’s conclusion in Komarenko v. INS, 35 F.3d 432 (9th Cir. 1994), which we

adopted after discussing at length, “follows directly from the equal protection concerns

                                              6
that are the basis for the whole idea of a ‘statutory counterpart’” Coroleo, 476 F.3d at

165. These equal protection concerns require that statutory classifications that are

substantially identical be treated similarly, but do not require like treatment where the two

classifications are dissimilar. Id. (citing Komarenko, 35 F.3d at 435). We also joined the

Ninth Circuit in declining to adopt a factual approach to our equal protection analysis,

finding that such “judicial legislating” would overstep the judicial role in immigration

legislation and “interfere with the broad enforcement powers Congress has delegated to

the Attorney General.” Id. at 165-66 (quoting Komarenko, 35 F.3d at 435). We are

unmoved by the Second Circuit’s assertion that its holding in Blake is limited because it

has “neither made a § 212(c) waiver available to all deportees with an aggravated felony

conviction, nor put deportees in a better position than excludees.” Blake, 489 F.3d at 104.

Although this may be factually correct, the Second Circuit’s approach nevertheless

dramatically expands the scope of the Attorney General’s review. See Coroleo, 476 F.3d

at 165-66 (observing that a factual equal protection analysis would extend “discretionary

review to every ground for deportation that could constitute ‘the essential elements of a

crime involving moral turpitude,’”) (internal citation omitted). It also bears mentioning

that the Second Circuit’s holding is contrary to every other court of appeals to have

addressed the issue since the BIA announced the Blake-Brieva rule. See Kim v. Gonzales,

468 F.3d 58 (1st Cir. 2006); Sanchez v. Gonzales, 473 F.3d 133 (5th Cir. 2006); Valere v.

Gonzales, 473 F.3d 757 (7th Cir. 2007); Soriano v. Gonzales, 489 F.3d 909 (8th Cir.

2006) (per curiam); Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007).

                                             7
       We are also unpersuaded by Calderon’s assertion that his “plain language

argument” regarding the divisibility of 18 U.S.C. § 16, which defines the term “crime of

violence,” distinguishes his case from Coroleo. The premise of this argument appears to

be that the petitioner in Blake committed a “crime of violence” as defined in 18 U.S.C.

§ 16(b). Calderon, however, committed a crime of violence as defined in 18 U.S.C.

§ 16(a), and he claims it was therefore improper for the BIA to rely upon Blake in finding

that § 16(a) had no statutory counterpart in § 212(a). Because, according to Calderon, the

proper inquiry under Blake-Brieva is whether all possible offenses under the statute in

question involve moral turpitude, and all offenses under § 16(a) would involve moral

turpitude, § 16(a) has a statutory counterpart in § 212(a) even though § 16(b) may not.

       This “plain language” argument misstates the Blake-Brevia rule and is in fact

nothing more than a variation on Calderon’s assertion that we should examine the

underlying facts of his conviction. Moreover, Calderon’s proposed test would be unlikely

to yield the result he seeks because § 16(a) encompasses any offense “that has as an

element the use, attempted use, or threatened use of physical force against the person or

property of another.” 18 U.S.C. § 16(a). Thus, § 16(a) would appear to require none of

the vileness, depravity, or reprehensible acts deliberately committed that we have held are

characteristic of moral turpitude. See DeLeon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir.

2002); Partyka v. Attorney General, 417 F.3d 408 (3d Cir. 2005).

                                            IV.

       For the foregoing reasons, we will deny Calderon’s petition for review.

                                             8
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