                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUL 28 1997
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    FIDEL JIMENEZ-SANTILLANO,

                Petitioner,

    v.                                                   No. 96-9532
                                                     (Petition for Review)
    IMMIGRATION &                                     (No. A90 355 520)
    NATURALIZATION SERVICE,

                Respondent.




                              ORDER AND JUDGMENT *



Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.


         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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable William F. Downes, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
      Petitioner Fidel Jimenez-Santillano has filed this petition seeking review of

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

Immigration Judge’s (IJ) determination that petitioner is deportable and ineligible

for a waiver of inadmissibility under 8 U.S.C. § 1182(c). We affirm.

      Initially, we address whether we have jurisdiction over this appeal. The

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

Pub. L. No. 104-208, 110 Stat. 3009, alters the availability, scope, and nature of

judicial review in INS cases. However, because petitioner’s deportation

proceedings commenced before April 1, 1997, and the final decision of the INS

issued before September 30, 1996, neither IIRIRA’s permanent “new rules,” nor

its interim “transitional rules,” apply to this case. See id. §§ 306(c)(1), 309(a),

(c)(1) & (4), as amended, Pub. L. No. 104-302, § 2, 110 Stat. 3657, set out in

notes to 8 U.S.C. §§ 1101, 1252. Because this case does not involve deportation

for criminal activity addressed by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, we need not address

whether that Act would apply to INS cases commenced before its enactment on

April 24, 1996. 1 See Fernandez v. INS, 113 F.3d 1151, 1152-54 (10th Cir. 1997).


1
       Although Mr. Jimenez-Santillano was convicted of a felony, the felony is
not one of those referenced in 8 U.S.C. § 1252(a)(2)(C). See id. §§ 1105(a)(2)
(currently found at § 1227(a)(2)), 1182(a)(2); see also In re Jimenez-Santillano,
Interim Decision (BIA), No. A90 355 520, 1996 WL 426890 n.3 (BIA July 24,
1996).

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Accordingly, we consider petitioner’s claims under pre-AEDPA and pre-IIRIRA

law.

       Mr. Jimenez-Santillano, a native and citizen of Mexico, came to this

country prior to January 1, 1972. He was granted permanent resident status in

1989. In 1994, he was convicted of fraud and misuse of documents required for

entry into the United States in violation of 18 U.S.C. § 1546(a) and was sentenced

to two years’ probation.

       Thereafter, respondent issued an order to show cause as to why he was not

deportable. Mr. Jimenez-Santillano conceded deportability, but sought a waiver

under § 212(c) of the Immigration and Naturalization Act (INA)(8 U.S.C.

§ 1182(c)). The IJ denied the waiver on the ground that the crime for which Mr.

Jimenez-Santillano was found deportable was not identical to a statutory ground

for exclusion for which discretionary relief would be available.

       We review the BIA's factual findings for substantial evidence, discretionary

determinations for an abuse of discretion, and legal conclusions de novo. See

Hadjimehdigholi v. INS, 49 F.3d 642, 647 (10th Cir. 1995); Turri v. INS, 997

F.2d 1306, 1308 (10th Cir. 1993).

       The INA provides two parallel statutory schemes regulating aliens’ ability

to enter or remain in this country. See Leal-Rodriguez v. INS, 990 F.2d 939, 942

(7th Cir. 1993). One scheme addresses the process of excluding aliens seeking to


                                         -3-
enter the United States, while the other addresses the process of expelling aliens

already present in the country. See id. While the grounds for exclusion largely

overlap those for deportation, they are not identical. See id.

      Section 1182(c)(INA § 212(c)) provides that aliens who have been lawfully

admitted for permanent residence but who temporarily and voluntarily leave the

United States, may be readmitted, at the Attorney General’s discretion, upon their

return to a lawful unrelinquished domicile of seven consecutive years. 2

      Literally read, Mr. Jimenez-Santillano would not appear to be eligible for a

§ 212(c) waiver. As he has not voluntarily left this country, he is not excludable.

However, eligibility for consideration for a § 212(c) waiver has been extended to

aliens who face deportation proceedings. See Francis v. INS, 532 F.2d 268, 271-

73 (2d Cir. 1976). The Francis court accepted the petitioner’s argument that, as

applied, § 212(c) created “two classes of aliens identical in every respect except

for the fact that members of one class have departed and returned to this country

at some point after they became deportable.” Id. at 272. The court held that

“[f]undamental fairness dictates that permanent resident aliens who are in like

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




2
      This subsection does not apply to any alien who has been convicted of one
or more aggravated felonies for which he\she served at least five years
imprisonment. Mr. Jimenez-Santillano is not subject to this exclusion.

                                         -4-
manner.” Id. at 273. 3

      Therefore, some aliens facing deportation may obtain

      exclusion-type relief as if they were subject to exclusion rather than
      deportation. But that fiction requires that the aliens be excludable
      for the same reasons that render them deportable--a situation not
      necessarily true for all aliens facing deportations. Accordingly,
      section 212(c) relief was not extended to aliens whose deportability
      was based on a ground for which a comparable ground of exclusion
      did not exist.

Leal-Rodriguez, 990 F.2d at 949.

      We, therefore, examine the statute to determine if the crime for which Mr.

Jimenez-Santillano was convicted, and which he admits is a deportable crime, has

an identical counterpart in the exclusion statute. Mr. Jimenez-Santillano was

convicted of violating 18 U.S.C. § 1546(a) for obtaining “fraudulent resident

alien cards and Social Security cards for undocumented aliens in the Roswell,

New Mexico area.” R. 63. He was adjudged deportable under 8 U.S.C.

§ 1251(a)(3)(B)(iii).

      Mr. Jimenez-Santillano apparently argued before the IJ and BIA that

§ 1182(a)(6)(C)(i) is the comparable exclusion provision to § 1251(a)(3)(B)(iii). 4

3
       This circuit adopted this standard in Vissian v. Immigration &
Naturalization Service, 548 F.2d 325 (10th Cir. 1977). In Vissian we concluded
that a § 212(c) waiver of inadmissibility “may be granted to a permanent resident
alien in a deportation proceeding regardless of whether he left the United States
following the act or acts which render him deportable.” Id. at 328 n.3.
4
       Before this court, Mr. Jimenez-Santillano asserts that the “identical
statutory counterpart” is § 1182(a)(6)(F). Appellant’s Br. at 5. This section

                                        -5-
Section 1182(a)(6)(C)(i) provides that an alien who fraudulently procures a “visa,

other documentation, or entry into the United States” is excludable. Mr. Jimenez-

Santillano’s acts of obtaining fraudulent documents for illegal aliens present in

this country, which they presumably would use fraudulently to assert legal

presence, is not comparable to obtaining false documents for the purpose of

entering the United States. We agree with the BIA that the criminal acts

encompassed by 18 U.S.C. § 1546(a) are much broader than those addressed in

8 U.S.C. § 1182(a)(6)(C)(i). Therefore, no comparable exclusion provision is

present and the BIA correctly held that Mr. Jimenez-Santillano could not validly

request a § 212(c) waiver. Because no § 212(c) waiver was available to Mr.

Jimenez-Santillano, we need not address Mr. Jimenez-Santillano’s argument that

the equities of his situation were such that a denial of a waiver would constitute

an abuse of discretion by the BIA.

      The petition for review is DENIED.
                                                    Entered for the Court

                                                    Robert H. Henry
                                                    Circuit Judge




concerns civil penalties and is clearly inapplicable. Mr. Jimenez-Santillano was
convicted of a criminal act and sentenced to probation. He received no civil
penalty.

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