                                                              [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                             No. 08-13055                  ELEVENTH CIRCUIT
                                                             JANUARY 28, 2009
                         Non-Argument Calendar
                                                            THOMAS K. KAHN
                       ________________________
                                                                 CLERK

                         Agency No. A91-426-881

JESUS MATHEHUALA GARCIA,


                                                                      Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                       ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                        _________________________

                             (January 28, 2009)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Jesus Matehuala Garcia (“Matehuala”), a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming

the Immigration Judge’s (“IJ”) denial of his request for relief under former

Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c). This

appeal raises two issues: (1) whether we have jurisdiction to hear Matehuala’s

constitutional and legal claim, pursuant to 8 U.S.C. § 1252(a)(2)(D); and (2)

whether Matehuala’s right to equal protection was violated when he was denied

eligibility for waiver under former § 212(c) because he is removable, pursuant to 8

U.S.C. § 1227, on grounds that have no analogue in the INA’s inadmissability

grounds.

                                         I.

      The REAL ID Act amended 8 U.S.C. § 1252 to preclude judicial review of

the removal orders of aliens who have been convicted of an aggravated felony

offense. 8 U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction to review

“constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). We have

addressed equal protection challenges to § 212 applying the REAL ID Act. See

Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343 (11th Cir. 2006) (per curiam)

(involving a §212(h) waiver).




                                          2
      Accordingly, our jurisdiction to consider Matehuala’s equal protection claim

is not in doubt. Moreover, our jurisdiction over Matehuala’s legal claim is not

barred by INA § 242(a)(2)(B)(ii) because Matehuala’s eligibility for a § 212(c)

waiver is a question of law.

                                          II.

      We review the BIA’s determinations on questions of law de novo, with

appropriate deference to the BIA’s reasonable interpretations of the INA.

Farquharson v. U.S. Att’y. Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). See also

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104

S. Ct. 2778, 2781 (1984). Additionally, “we review constitutional challenges de

novo.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam).

      Matehula argues that he is eligible for § 212(c) relief because the offense

rendering him removable, battery, qualifies as a crime of moral turpitude.

Matehuala acknowledges that, as a lawful permanent resident of the United States,

he was charged with removability on the basis of committing an aggravated felony

crime of violence. However, he maintains that if he had been charged upon

attempted reentry into the United States, he would have been charged with

inadmissibility on the basis of having committed a crime of moral turpitude, and

immigration officials would have discretion to readmit him. Matehuala

specifically challenges that the test for comparability established by In re Matter of
                                           3
Blake, 23 I. & N. Dec. 722, 728 (BIA 2005), and contends that application of the

Blake test violates his constitutional right to equal protection because it treats

similarly situated people differently and fails to consider whether the facts create a

crime-of-moral-turpitude ground of inadmissibility in addition to the charged

ground of removability.

      A.     Eligibility for INA § 212(c) Relief

      Former INA § 212(c), 8 U.S.C. § 1182(c), provided that an alien lawfully

admitted for permanent residence who temporarily proceeds abroad voluntarily and

not under an order of deportation, and who is returning to a lawful unrelinquished

domicile of seven consecutive years, may be admitted to the United States at the

discretion of the Attorney General without regard to certain specified grounds of

exclusion enumerated in INA § 212(a), 8 U.S.C. § 1182(a). See 8 U.S.C. § 1182(c)

(repealed 1996). The availability of § 212(c) relief was later extended to lawful

permanent residents who never left the United States but who were subject to

deportation on grounds analogous to the grounds of exclusion specified in INA §

212(a), 8 U.S.C. § 1182(a). See Rodriguez-Padron v. I.N.S., 13 F.3d 1455, 1460-

61 (11th Cir. 1994). While § 212(c) was repealed in the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-

208 § 304(b), 110 Stat. 3009-597 (1996), relief under § 212(c) remains available,

pursuant to INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293 (2001), for
                                            4
aliens who have been found removable pursuant to guilty pleas entered prior to §

212(c)’s repeal, and “who, notwithstanding those convictions would have been

eligible for § 212(c) relief at the time of their plea under the law then in effect.”

      The Third Circuit provides an instructive analysis of the relevant framework

of deportation law:

      Section 237 of the INA, entitled “Deportable Aliens,” lists the
      grounds upon which the Attorney General may order an alien
      removed. It is in this context that courts look to an alien’s underlying
      criminal conviction to determine whether it falls within one of § 237’s
      statutory grounds for removal. . . .

      The statutory counterpart requirement under § 212(c), on the other
      hand, presents an entirely different question. In an application for §
      212(c) relief . . . , the alien’s removability has already been
      established – i.e., it has already been determined that the underlying
      crime for which he has been convicted falls within one of INA § 237’s
      grounds for removal. The relevant statutory counterpart inquiry then
      looks not to the underlying criminal conviction – but rather to the
      statutory ground for removal contained in INA § 237 and whether it
      has a counterpart in the statutory ground for exclusion provisions of
      INA § 212(a). Under this categorical analysis, [a comparison of] the
      removal and exclusion provisions of the INA [is undertaken] to
      determine whether they are substantially equivalent.

Caroleo v. Gonzales, 476 F.3d 158, 164 (3d Cir. 2007) (internal quotation marks

omitted).

      The BIA has adopted the statutory counterpart analysis. In In re Matter of

Brieva-Perez, 23 I. & N. Dec. 766, 773 (BIA 2005), the BIA denied eligibility for

waiver under former § 212(c) upon concluding that an aggravated felony-crime-of-


                                            5
violence ground for removal under INA § 237 is not substantially equivalent to

INA § 212(a)’s crime-involving-moral-turpitude ground for exclusion. The BIA

concluded that the two cannot be considered statutory counterparts. Id. In

reaching this conclusion, the BIA relied on its decision in Blake, in which it held

that the sexual-abuse-of-a-minor aggravated-felony ground for removal, INA §

101(a)(43)(A), is not a statutory counterpart of INA § 212(a)’s crime-involving-

moral-turpitude ground for exclusion. Blake, 23 I. & N. Dec. at 729. The Blake

court noted that, although some crimes constituting sexual abuse of a minor may

well constitute moral turpitude, the mere overlap between crimes of violence, such

as sexual abuse, and some crimes involving moral turpitude is insufficient to

render the two statutory counterparts. Id. at 728. Rather, the BIA required a close

textual link between a ground of deportation or removal and the provisions for

exclusion or inadmissibility. Id.

      We have followed the BIA’s statutory counterpart analysis and focused the

§ 212(c) inquiry on whether the statutory ground for removal has a statutory

counterpart ground for exclusion in § 212(a). In Rodriguez-Padron, petitioners,

classified as deportable after having been convicted of firearms offenses, were

denied relief under § 212(c) because they were deportable on a ground for which

there was no statutory analogue for exclusion in § 212. Rodriguez-Padron, 13

F.3d at 1456-57. We declined to extend § 212(c) relief to all aliens facing
                                          6
deportation, unless the ground was one specifically excluded in § 212(c). Id. at

1460. In doing so, we reasoned that the denial 212(c) relief to aliens removable on

a ground with no analogue for exclusion in § 212(a) had a rational basis and thus,

was not a violation of equal protection, and there was no indication of

congressional intent to extend the availability of § 212(c) relief beyond the

statutory language of § 212(c). Id. at 1459-60.

       Here, Matehuala was convicted of an aggravated felony crime of violence

that has no statutory counterpart in § 212(a). Thus, he is ineligible for § 212(c)

relief, and his petition of review as to this issue is denied.

       B.     Equal Protection

       We have rejected the argument that the distinction between a deportable and

an excludable aliens’ ability to obtain § 212(c) relief violates equal protection

guarantees. Chuang v. U.S. Att’y Gen., 382 F.3d 1299, 1304 (11th Cir. 2004) (per

curiam). Even if deportable and excludable aliens could be considered similarly

situated, there is a rational basis for distinguishing between the two.

       A rational and indeed sensible reason can readily be assigned to
       Congress’s more lenient treatment of excludable as distinct from
       deportable aliens: it creates an incentive for deportable aliens to leave
       the country-which is after all the goal of deportation-without their
       having to be ordered to leave at the government’s expense. To induce
       their voluntary departure, a little carrot is dangled before them,
       consisting of the opportunity to seek a waiver should they seek to
       return to the country and by doing so trigger exclusion proceedings.

                                             7
Id. at 1303-04 (quotation omitted).

      Because there is a rational basis behind the different treatment of excludable

and deportable aliens, we reject Matehuala’s equal protection challenge.

                                  CONCLUSION

      We defer to the BIA’s statutory counterpart analysis and find that denial of

§ 212(c) relief does not violate equal protection where an applicant is deportable

on grounds that have no comparable statutory grounds for inadmissibilty. Upon

review of the record and the parties’ briefs, we discern no reversible error.

Accordingly, the petitioner’s petition for review is denied.

      PETITION DENIED.




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