                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0232n.06
                              Filed: March 26, 2009

                                           No. 08-3012

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


HEINRICH ERB,                                            )
                                                         )
       Petitioner,                                       )
                                                         )
v.                                                       )    ON PETITION FOR REVIEW OF A
                                                         )    FINAL ORDER OF THE BOARD OF
ERIC H. HOLDER, JR., United States Attorney              )    IMMIGRATION APPEALS
General,*                                                )
                                                         )
       Respondent.                                       )
                                                         )
                                                         )

*

       Before: KETHLEDGE and WHITE, Circuit Judges; POLSTER, District Judge.**

       KETHLEDGE, Circuit Judge.          Petitioner Heinrich Erb seeks review of a Board of

Immigration Appeals (BIA) order affirming the denial of his request for a waiver of removal. We

deny Erb’s petition.

                                                 I.




       *
       Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric H. Holder, Jr. is substituted for
former Attorney General Michael B. Mukasey.
       **
         The Honorable Dan A. Polster, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 08-3012
Erb v. Holder

       Erb is a native and citizen of Germany. He immigrated to the United States in 1957 at age

four. In 1993, Erb pleaded guilty to three counts of gross sexual imposition under Ohio law, for

which he served three years and eleven months in prison.

       In 2004, the former Immigration and Naturalization Service (INS), which is now part of the

Department of Homeland Security (DHS), issued Erb a Notice to Appear (NTA) before an

immigration judge (IJ). The NTA charged Erb with being subject to removal for having “been

convicted of an aggravated felony as defined in section 101(a)(43)(A) of the” Immigration and

Nationality Act (INA) for “sexual abuse of a minor.” J.A. 63. Erb sought a waiver of removal

pursuant to former INA § 212(c), 8 U.S.C. § 1182(c) (1994). The IJ found Erb ineligible for

§ 212(c) relief, and ordered him removed to Germany. The BIA affirmed in a written order. This

petition for review followed.

                                                 II.

       Erb argues that the BIA erred in finding him ineligible for § 212(c) relief. We review the

BIA’s legal determinations “de novo, while granting substantial deference to the BIA’s interpretation

of the [INA] and the INA’s accompanying regulations.” Koussan v. Holder, __F.3d__, 2009 WL

330999 at *2 (6th Cir. Feb. 12, 2009).

       Former INA § 212(c) “provided for a discretionary waiver of certain grounds of

inadmissibility under section 212(a).” In re Blake, 23 I. & N. Dec. 722, 724 (BIA 2005). Section

212(a) listed various classes of individuals “who are ineligible to receive visas and who shall be

excluded from admission into the United States[,]” including persons convicted of “crime[s]

involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A) (1994). Former § 212(c) provided, however,

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that “[a]liens lawfully admitted for permanent resident [sic] who temporarily proceeded abroad

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

domicile of seven consecutive years, may be admitted in the discretion of the Attorney General[.]”

Id. § 1182(c).

           By its terms, former § 212(c) applied only to aliens seeking readmission to the United States,

but “[o]ver the last 30 years . . . the BIA and the courts have extended § 212(c) relief to aliens

seeking to avoid removal[.]” Thap v. Mukasey, 544 F.3d 674, 677 (6th Cir. 2008) (emphasis added);

but see Abebe v. Mukasey, __F.3d__, 2009 WL 50120 (9th Cir. Jan. 5, 2009) (en banc) (holding that

§ 212(c) relief is not available in removal proceedings). But the rule in this circuit, as in most others,

is that such aliens are eligible for § 212(c) relief only if their ground of removability has a

“comparable ground of exclusion”—or “statutory counterpart”—in § 212(a). See Thap, 544 F.3d

at 679 (collecting cases). In 2004, the BIA codified this statutory-counterpart rule in 8 C.F.R.

§ 1212.3(f)(5).

           In 1996, Congress repealed § 212(c). See Illegal Immigration Reform and Immigrant

Responsibility Act, Pub. L. 104-208, 110 Stat. 3009-594. Nonetheless, the Supreme Court held in

INS v. St. Cyr, 533 U.S. 289, 326 (2001), that “§ 212(c) relief remains available for aliens

[who] . . . would have been eligible for § 212(c) relief at the time of their plea under the law then in

effect.”

           Erb presents several arguments as to why, at the time of his plea, he would have been eligible

for § 212(c) relief under the law then in effect. First, Erb argues that the statutory-counterpart rule

does not apply to him because he made his plea before we formally recognized that rule in Gjonaj

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v. INS, 47 F.3d 824, 826 (6th Cir. 1995). See Pet’r Br. at 11. He argues that 8 C.F.R. § 1213.3(f)(5)

does not apply to him for the same reason.

        But we did not announce a new rule in Gjonaj. Rather, we “decline[d] to change” the

“well-established rule” that “there must be a comparable ground of exclusion for an alien in

deportation to be eligible for section 212(c) relief.” Gjonaj, 47 F.3d at 827 (emphasis added). That

is a characterization that we must accept for purposes of this appeal. We applied that rule in Gjonaj

to a petitioner who had pleaded guilty to his offense in 1990, three years before Erb’s guilty plea

here. Therefore, we are bound by precedent to apply the statutory-counterpart rule to Erb here. That

the BIA did not codify the rule until 2004 in 8 C.F.R. § 1213.3(f)(5) is irrelevant. “Section

1213.3(f)(5) is simply the agency’s codification of [a] preexisting, judicially created rule.” Valere

v. Gonzalez, 473 F.3d 757, 761 (7th Cir. 2007). And that rule, as shown above, existed when Erb

made his plea.

        Erb next contends that his ground of removability finds a counterpart in § 212(a)’s “crime

involving moral turpitude.” He asserts that the conduct that led to his gross-sexual-imposition

conviction was “inherently base, vile, or depraved[,]” and thus that it “is very clear that [his] actions

involved moral turpitude.” Pet’r Br. at 26.

        Erb’s argument is again foreclosed by precedent. The “statutory ground of removal”—and

not the “factual basis of the underlying criminal activity”—must “have a ‘substantially identical’

counterpart in the statutory grounds for exclusion in order to qualify for section 212(c)[.]” Thap, 544

F.3d at 679 (quoting Caroleo v. Gonzalez, 476 F.3d 158, 168 (3d Cir. 2007)). It simply does “not

matter [that Erb’s] actions . . . could be considered a crime of moral turpitude as well as an

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Erb v. Holder

aggravated felony” for sexual abuse of a minor; and “it is beside the point that a different ground of

deportation (e.g., the ‘crimes of moral turpitude’ ground) might have been waived if it also had been

invoked against him.” Id. at 678-79 (emphasis in original).

       Here, the DHS seeks to deport Erb under INA § 237 on the ground that he was convicted of

an “aggravated felony” for “sexual abuse of a minor” under INA § 101(a)(43)(A). That is his

statutory ground for removal. There is no “substantially identical” statutory counterpart to that

ground in § 212(a), since that subsection does not include conviction of an “aggravated felony” or

of “sexual abuse of a minor” as a ground of inadmissibility. Id.; see also Blake, 23 I. & N. Dec. at

727 (“although there may be considerable overlap between offenses characterized as sexual abuse

of a minor and those considered crimes of moral turpitude, these two categories of offenses are not

statutory counterparts”); Avilez-Granados v. Gonzalez, 481 F.3d 869, 872 (5th Cir. 2007) (“[t]here

is no textual link between sexual abuse of a child and crimes involving moral turpitude to indicate

that Congress had the same class of offenses in mind when in enacted the two

provisions . . . . Absent this textual link, we cannot extend § 212(c) relief to cover any crime that

common-sense might classify as involving moral turpitude”); Soriano v. Gonzalez, 489 F.3d 909,

909 (8th Cir. 2007) (per curiam) (“the ground for which [the petitioner] was found removable—the

aggravated felony of sexual abuse of a minor—does not have a statutory counterpart in the grounds

of admissibility listed in INA § 212(a)”). Erb is therefore ineligible for § 212(c) relief.

       Finally, Erb argues that, because we owe no deference to the BIA’s interpretation of § 212,

we should abandon the statutory-counterpart rule altogether. He argues that the rule creates an

asymmetry between aliens seeking readmission, who can seek § 212(c) waivers on the ground that

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Erb v. Holder

their offenses involved “moral turpitude,” and aliens facing removal for the same offenses, who

cannot.

          But precedent forecloses those arguments as well. We have long recognized the statutory-

counterpart rule in precisely this form, see Gjonaj, 47 F.3d at 827, and recently reaffirmed it on two

occasions, see Thap, 544 F.3d at 678-79; Koussan, __F.3d at __, 2009 WL 330999 at *5. In so

doing, we have aligned this circuit with nearly every other circuit that has considered the issue. Our

decision here, then, is based not on undue deference to the BIA, but on adherence to our precedent.

          We therefore deny Erb’s petition.




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       WHITE, Circuit Judge, concurring. I agree that precedent precludes us from granting relief.

I observe, however, that there is an unsettling incongruity in refusing to apply § 212(c) to grounds

for removal that would be subject to discretionary waiver under § 212(c) were the alien seeking

readmittance rather than waiver of deportation.




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