                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

PEDRO AGUILERA-MONTERO,                           No. 06-72956
                     Petitioner,
               v.                                  Agency No.
                                                   A29-677-298
MICHAEL B. MUKASEY,
                                                     OPINION
                    Respondent.
                                           
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                    Argued and Submitted
               May 8, 2008—Seattle, Washington

                     Filed December 1, 2008

     Before: Susan P. Graber and Johnnie B. Rawlinson,
    Circuit Judges, and Otis D. Wright II* District Judge.

                  Opinion by Judge Rawlinson




  *The Honorable Otis D. Wright II, United States District Judge for the
Central District of California, sitting by designation.

                                15869
               AGUILERA-MONTERO v. MUKASEY             15871


                        COUNSEL

Russell W. Pritchett, Pritchett & Jacobson, Bellingham,
Washington, for petitioner-appellant Pedro Aguilera-Montero.

M. Jocelyn Lopez Wright and Kristin K. Edison (argued),
Office of Immigration Litigation, U.S. Department of Justice,
Washington, D.C., for respondent-appellee Michael Mukasey.
15872           AGUILERA-MONTERO v. MUKASEY
                          OPINION

RAWLINSON, Circuit Judge:

   Appellant Pedro Aguilera-Montero (Aguilera-Montero)
petitions for review of the Board of Immigration Appeals’
(BIA) dismissal of his appeal of a denial of his application for
adjustment of status. Aguilera-Montero asserts that he is enti-
tled to a waiver of deportability pursuant to 8 U.S.C. § 1227
because of a full and unconditional state pardon.

  Additionally, Aguilera-Montero maintains that the avail-
ability of a pardon-based waiver pursuant to 8 U.S.C. § 1227
violates the equal protection rights of inadmissible aliens,
who are not entitled to such a waiver under 8 U.S.C. § 1182.

  We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and
we deny the petition for review.

I.   BACKGROUND

   Aguilera-Montero has a long history of illegal presence in
this country. His original illegal entry was in September,
1986. On August 17, 1991, he was granted voluntary depar-
ture, but failed to depart. On June 19, 1992, he was appre-
hended and became the subject of deportation proceedings.
On August 25, 1992, an immigration judge (IJ) granted him
voluntary departure, and he again failed to depart. On Febru-
ary 20, 1993, he was deported, and he re-entered illegally on
March 1, 1993. On October 13, 1993, deportation proceedings
were commenced against Aguilera-Montero. On January 26,
1994, he was granted voluntary departure and failed to depart
yet again. He was “encountered by the U.S. Border Patrol on
January 3, 1995, while working illegally.” Although he was
deported on January 11, 1995, Aguilera-Montero re-entered
the country illegally “on or about April 15, 1995.”
                  AGUILERA-MONTERO v. MUKASEY                     15873
   On February 4, 1993, Aguilera-Montero pled guilty to
unlawful possession of cocaine. On April 30, 2001, he filed
an application for adjustment of status to permanent resident
due to his marriage to a United States citizen. Aguilera-
Montero’s application was denied by the District Director,
Citizenship and Immigration Services, Department of Home-
land Security, for two reasons: 1) Aguilera-Montero was inad-
missible for status as a permanent resident due to his second
removal within a ten-year period; and 2) Aguilera-Montero
was inadmissible for status as a permanent resident due to his
conviction for violating a law relating to a controlled sub-
stance, i.e., his 1993 guilty plea to unlawful possession of
cocaine.1

   The denial included a Notice to Appear before an IJ for
removal proceedings. Aguilera-Montero was charged with
being subject to removal pursuant to 8 U.S.C.
§ 1182(a)(9)(A)(ii) (providing for removal of an inadmissible
alien who has been ordered removed more than once and who
seeks admission within twenty years of the last removal), and
pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing for
removal of an inadmissible alien who has been convicted of
a crime relating to a controlled substance).

   Prior to his removal hearing, the Governor of the State of
Washington granted Aguilera-Montero a “Full and Uncondi-
tional Pardon.” At the removal hearing, Aguilera-Montero
conceded removability. During the continued removal pro-
ceedings, Aguilera-Montero requested a waiver of the con-
trolled substance inadmissibility charge, which would permit
him to adjust his status to that of a lawful permanent resident.
The IJ rejected Aguilera-Montero’s request for a waiver, rea-
soning that although a waiver is available for aliens who have
  1
    Aguilera-Montero also filed an Application for Permission to Reapply
for Admission Into the United States After Deportation or Removal. That
application was also denied on the basis of Aguilera-Montero’s drug con-
viction. It does not appear that Aguilera-Montero appealed that decision.
15874              AGUILERA-MONTERO v. MUKASEY
been admitted into this country, no comparable waiver is
available for aliens who have not been admitted into the coun-
try.

   The BIA affirmed the IJ’s ruling, reiterating that 8 U.S.C.
§ 1227(a)(2)(A)(v) “expressly provides that certain enumer-
ated criminal grounds of deportability become inapplicable
where the alien receives a full and unconditional executive
pardon . . . but section 212 of the Act [8 U.S.C. § 1182] con-
tains no equivalent waiver provision pertaining to the criminal
grounds of inadmissibility.” (second emphasis in the original).

  Aguilera-Montero filed a timely petition for review of the
BIA decision.

II.    STANDARDS OF REVIEW

   “[W]hen the BIA conducts a de novo review and issues its
own decision, we review the BIA’s decision rather than the
IJ’s.” Urzua Covarrubias v. Gonzales, 487 F.3d 742, 747 n.2
(9th Cir. 2007) (citation omitted).

   “We review constitutional and legal issues de novo.” Avila-
Sanchez v. Mukasey, 509 F.3d 1037, 1040 (9th Cir. 2007)
(citations omitted).

III.    DISCUSSION

  A.    Aguilera-Montero’s State Pardon As Removing
        The Legal Consequences of His Controlled
        Substance Conviction

  Relying on Ex parte Garland, 71 U.S. 333 (1866), and its
progeny,2 Aguilera-Montero asserts that a state pardon, like a
  2
   In Ex parte Garland, the Supreme Court articulated that “[a] pardon
reaches both the punishment prescribed for the offence and the guilt of the
offender; and when the pardon is full, it releases the punishment and blots
out of existence the guilt, so that in the eye of the law the offender is as
innocent as if he had never committed the offence.” 71 U.S. at 380.
                AGUILERA-MONTERO v. MUKASEY              15875
Presidential pardon, obviates the legal consequences of his
conviction.

   [1] Pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)(2006), “any
alien convicted of, or who admits having committed, . . . a
violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country
relating to a controlled substance . . . , is inadmissible.”

   [2] In contrast, 8 U.S.C. § 1227, applicable to deportable
aliens, explicitly provides a waiver of deportability to aliens
who committed crimes of moral turpitude, had multiple crimi-
nal convictions, committed an aggravated felony, or engaged
in high speed flight from an immigration checkpoint “if the
alien subsequent to the criminal conviction has been granted
a full and unconditional pardon by the President of the United
States or by the Governor of any of the several States.” 8
U.S.C. § 1227(a)(2)(A)(vi)(2006).

   Contrary to Aguilera-Montero’s argument that a state par-
don removes all legal consequences of a conviction, Aguilera-
Montero’s state pardon does not entitle him to a waiver that
is not listed in 8 U.S.C. § 1182(a)(2)(A)(i)(II). In Yuen v.
I.N.S., 406 F.2d 499, 500 (9th Cir. 1969), we addressed the
effect of a state pardon on statutory waivers of deportation.
The petitioner, who was convicted of a state narcotics offense,
asserted that his full and unconditional pardon entitled him to
relief pursuant to section 249 of the Immigration and Nation-
ality Act, which allows a record of lawful admission to be
made under certain circumstances. Id. at 499. The petitioner
“allege[d] that the Board . . . attached a disability to him on
the basis of the conviction even though the conviction should
be considered as wiped out by the act of the Governor in par-
doning petitioner for the offense.” Id. at 501 (internal quota-
tion marks omitted). We rejected the petitioner’s argument
based on Ex parte Garland:

      We do not regard this as a sufficient ground for
    invalidating the federal statute which commands
15876              AGUILERA-MONTERO v. MUKASEY
     such a result. It is true that, in Ex parte Garland,
     upon which petitioner heavily relies for his authority
     on the effect of a pardon, there is broad language to
     the effect that Congress cannot fix punishment
     beyond the reach of executive clemency, or conse-
     quences which attach to a conviction beyond the
     reach of executive clemency. But the Court was
     there speaking of federal executive clemency, not
     state.

        Moreover, Garland and like cases deal with the
     effect of a pardon in releasing an offender from pun-
     ishment. Accepting as true the premise that a pardon,
     full and unconditional, federal or state, exempts the
     convicted person from punishment, it does not
     thereby exempt such person from deportation. . . . It
     is well settled that deportation, while it may be bur-
     densome and severe for the alien, is not punishment.

Yuen, 406 F.2d at 501-02 (citations and internal quotation
marks omitted). Our reasoning, therefore, undermines
Aguilera-Montero’s argument premised on Ex parte Garland.3

   [3] We have not extensively addressed the dichotomy
between inadmissible and deportable aliens in the context of
a state pardon. However, the Eleventh Circuit explicitly
explored this issue at length in Balogun v. United States
Attorney General, 425 F.3d 1356, 1358 (11th Cir. 2005),
where the petitioner asserted that his “full and unconditional”
state pardon entitled him to waiver of inadmissibility pursuant
  3
    Aguilera-Montero contends that Yuen is inapplicable because it did not
address an equal protection claim similar to our opinions resolving appeals
based on the Federal First Offender Act (FFOA). However, Yuen specifi-
cally addressed Aguilera-Montero’s argument that his state pardon elimi-
nated the legal consequences of his conviction. Aguilera-Montero’s equal
protection claim is also premised on the contention that all pardons elimi-
nate such legal consequences. Thus, Yuen is persuasive.
                AGUILERA-MONTERO v. MUKASEY               15877
to 8 U.S.C. § 1227(a)(2)(A)(v). The Eleventh Circuit rejected
this argument, observing that:

       Balogun is not a deportable alien. He is an inad-
    missible alien under section 1182(a)(2)(A)(i)(I), a
    wholly different provision authorizing his removal.
    This separate classification of inadmissibility applies
    to those aliens who, for one reason or another, are
    ineligible to enter or re-enter the United States in the
    first place. . . .

       Section 1182 does not have a pardon provision
    like section 1227 does, and we believe that if Con-
    gress had intended to extend the pardon waiver to
    inadmissible aliens, it would have done so . . .

Id. at 1362-63 (citations, alteration, and internal quotation
marks omitted).

   [4] We agree with the Eleventh Circuit that the basic tenets
of statutory construction preclude us from inferring a waiver
under the provisions of 8 U.S.C. § 1182(a). See Harrison v.
Ollison, 519 F.3d 952, 958 (9th Cir.), cert. denied 129 S.Ct.
254 (2008) (“Where Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts inten-
tionally and purposely in the disparate inclusion or exclu-
sion.”) (citations omitted). We are persuaded by the reasoning
of the Eleventh Circuit and, therefore, hold that the state par-
don did not remove the immigration consequences of
Aguilera-Montero’s conviction.

  B.   Aguilera-Montero’s Equal Protection Argument

   [5] Aguilera-Montero raises an equal protection challenge
to the absence of a waiver provision in 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) for a state pardon, although a waiver is
available in similar circumstances to deportable aliens, pursu-
15878              AGUILERA-MONTERO v. MUKASEY
ant to 8 U.S.C. § 1227(a)(2)(A)(vi). We conclude that
Aguilera-Montero’s equal protection challenge is unavailing.
“Distinctions between different classes of aliens in the immi-
gration context are subject to rational basis review and must
be upheld if they are rationally related to a legitimate govern-
ment purpose.” Avila-Sanchez, 509 F.3d at 1041 (citation
omitted). “A legislative classification must be wholly irratio-
nal to violate equal protection.” de Martinez v. Ashcroft, 374
F.3d 759, 764 (9th Cir. 2004), as amended (citation and inter-
nal quotation marks omitted). “Challengers have the burden to
negate every conceivable basis which might support a legisla-
tive classification whether or not the basis has a foundation in
the record.” Id. (citation, alterations, and internal quotation
marks omitted).4

   [6] “A fundamental distinction runs throughout immigra-
tion law: the distinction between an alien who has effected an
entry into the United States and one who has never entered.”
Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1097 (9th Cir.
2004) (citations, alteration, and internal quotation marks omit-
ted). “This distinction is significant. Aliens standing on the
threshold of entry are not entitled to the constitutional protec-
tions provided to those within the territorial jurisdiction of the
United States.” Id. (citations and internal quotation marks
omitted). “For this reason, immigration laws can constitution-
ally treat aliens who are already on our soil (and who are
therefore deportable) more favorably than aliens who are
merely seeking admittance (and who are therefore exclud-
able).” Id. (citation, alteration, and internal quotation marks
omitted). “The entry fiction explains the apparent paradox:
  4
    The government contends that Aguilera-Montero, as an inadmissible
alien, cannot invoke the Fifth Amendment’s due process protections.
However, “[i]t is well established that all individuals in the United
States—citizens and aliens alike—are protected by the Due Process
Clause of the Constitution. It is equally well established that the Due Pro-
cess Clause incorporates the guarantees of equal protection.” United States
v. Calderon-Segura, 512 F.3d 1104, 1107 (9th Cir. 2008) (citation omit-
ted).
                AGUILERA-MONTERO v. MUKASEY                15879
the doctrine provides that although aliens seeking admission
into the United States may physically be allowed within its
borders pending a determination of admissibility, such aliens
are legally considered to be detained at the border and hence
as never having effected entry into this country.” Id. (citations
and internal quotation marks omitted).

   Aguilera-Montero posits that his equal protection rights
were violated because deportable aliens convicted of aggra-
vated felonies are eligible for a waiver, while inadmissible
aliens convicted of less serious crimes, such as simple posses-
sion, are not similarly entitled to a waiver. However,
Aguilera-Montero’s argument ignores the language of 8
U.S.C. § 1227(a)(2)(B)(i). In evaluating an equal protection
claim, we evaluate the applicable statutory language that is
“substantially identical” for inadmissible and deportable
aliens. See Cabasug v. I.N.S., 847 F.2d 1321, 1325 (9th Cir.
1988), as amended. Aguilera-Montero was charged as remov-
able pursuant to the controlled substance provision contained
in 8 U.S.C. § 1182. As a result, the analytical focus is 8
U.S.C. § 1227(a)(2)(B)(i), the statutory analogue for deport-
able aliens with controlled substance convictions, not the
aggravated felony statute referenced by Aguilera-Montero.
See Cabasug, 847 F.2d at 1324 (“Certain narcotics and mari-
juana offenses are grounds both for exclusion and deportation.
These drug subsections are among the most nearly identical
sections of the exclusion and deportation statutes.”) (citations
omitted).

  8 U.S.C. § 1227(a)(2)(B)(i)(2006) provides that:

    [a]ny alien who at any time after admission has been
    convicted of a violation of (or a conspiracy or
    attempt to violate) any law or regulation of a State,
    the United States, or a foreign country relating to a
    controlled substance (as defined in section 802 of
    Title 21), other than a single offense involving pos-
15880              AGUILERA-MONTERO v. MUKASEY
      session for one’s own use of 30 grams or less of
      marijuana, is deportable.

   [7] Title 8 U.S.C. § 1227(a)(2)(B)(i), which applies to con-
trolled substance convictions, does not contain a waiver simi-
lar to the one contained in 8 U.S.C. § 1227(a)(2)(A)(vi).
Consequently, a deportable alien with a controlled substance
conviction would be barred from relief in the same manner as
Aguilera-Montero is barred as an inadmissible alien. See 8
U.S.C. § 1182(a)(2)(A)(i)(II).5 Aguilera-Montero’s equal pro-
tection claim fails because deportable aliens and inadmissible
aliens with controlled substance convictions are similarly
ineligible for a pardon-based waiver. Compare 8 U.S.C.
§ 1227(a)(2)(B)(i)(no waiver provision) and 8 U.S.C.
§ 1182(a)(2)(A)(i)(II)(no waiver provision) with 8 U.S.C.
§ 1227(a)(2)(A)(vi) (waiver for crimes other than ones relat-
ing to controlled substances); see also Dillingham v. I.N.S.,
267 F.3d 996, 1007 n.13 (9th Cir. 2001) (“[N]o pardons of
drug offenses are recognized under the INA, whether foreign
or domestic.”) (citations omitted).

   In any event, we have rejected equal protection claims
premised on the statutory differences based on the alleged
“seriousness” of the crimes. In Carr v. I.N.S., 86 F.3d 949,
952 (9th Cir. 1996), we rejected the petitioner’s contention
that “it is irrational to allow expungement for crimes of moral
turpitude, but not for weapons offenses, where many crimes
of moral turpitude would seem greatly more egregious than
firearms offenses.” See also Cabasug, 847 F.2d at 1327 (“We
also do not agree with the implicit proposition that the Consti-
tution requires Congress to lay out crimes on a spectrum, and
grant at least as much discretion for the less serious as for any
more serious crimes.”).
  5
    Titles 8 U.S.C. § 1227(a)(2)(B)(i) and 8 U.S.C. § 1182(a)(2)(A)(i)(II)
differ in that 8 U.S.C. § 1227(a)(2)(B)(i) provides an additional exception
for marijuana possession, which would not impact Aguilera-Montero, as
he was convicted of cocaine possession.
                  AGUILERA-MONTERO v. MUKASEY                     15881
   If we created an implied waiver under 8 U.S.C. § 1182,
inadmissible aliens with controlled substance convictions
would enjoy a more generous waiver provision than that
expressly provided to deportable aliens under 8 U.S.C.
§ 1227. In particular, 8 U.S.C. § 1227 limits the granted
waiver to the enumerated crimes. See 8 U.S.C. § 1227(a)(2)
(A)(vi) (providing for a waiver of deportation only for deport-
able aliens convicted of crimes of moral turpitude, an aggra-
vated felony or high speed flight from an immigration
checkpoint). Under Aguilera-Montero’s requested interpreta-
tion of 8 U.S.C. § 1182, inadmissible aliens with controlled
substance convictions would benefit from the waiver provi-
sion in 8 U.S.C. § 1227(a)(2)(A)(v), while deportable aliens
charged with controlled substance offenses would not be simi-
larly eligible. To imply such a waiver “would vastly overstep
our limited scope of judicial inquiry into immigration legisla-
tion, and would interfere with the broad enforcement powers
Congress has delegated to the Attorney General.” Komarenko
v. I.N.S., 35 F.3d 432, 435 (9th Cir. 1994) (citations and inter-
nal quotation marks omitted).

   Aguilera-Montero also asserts that Garberding v. I.N.S., 30
F.3d 1187 (9th Cir. 1994), and related Federal First Offender
Act (FFOA) cases support his equal protection challenge.6
However, Garberding’s equal protection analysis is inapplica-
ble to Aguilera-Montero’s equal protection argument. As we
stated in Carr:

        [Petitioner] asserts that Garberding somehow
      requires us to hold that the Service’s distinction
  6
    “As a general rule, the BIA does not recognize expungements of con-
trolled substance offenses for federal immigration purposes.” Dillingham,
267 F.3d at 1005 (citation omitted). “However, in 1970, Congress carved
out a narrow exception for simple possession offenses when it enacted the
[FFOA]. . . . Under the FFOA, no legal consequences may be imposed fol-
lowing expungement as a result of the defendant’s former conviction.” Id.
(citation omitted). Aguilera-Montero does not contend that he is eligible
for the FFOA exception.
15882               AGUILERA-MONTERO v. MUKASEY
      between firearms on the one hand, and moral turpi-
      tude and drug crimes on the other, is irrational and
      violative of due process. Garberding, however, ruled
      only on the constitutionality of treating aliens differ-
      ently on the basis of which state laws they violated.
      It concluded only that treating aliens differently on
      the basis of their state expungement statute is irratio-
      nal; it did not speak to the issue of treating aliens dif-
      ferently on the basis of the crimes they had
      committed. Because the holding of Garberding is so
      limited, it cannot serve [petitioner’s] purpose of
      showing that the Service’s distinctions based on the
      crimes aliens commit violate due process.

86 F.3d at 952.7

   Aguilera-Montero fails to provide any legal support for his
proposition that “a person pardoned through a pardon by a
state governor should not be subject to deportation as long as
he could have received the benefit of a Presidential pardon if
he had been prosecuted under federal law.” (emphasis in the
original).8 Indeed, the underlying premise of Aguilera-
  7
     Aguilera-Montero also relies on Cordes v. Gonzales, 421 F.3d 889 (9th
Cir. 2005). However, that opinion was vacated for lack of jurisdiction. See
Cordes v. Mukasey, 517 F.3d 1094, 1095 (9th Cir. 2008) (order).
   8
     Any alien could potentially receive the benefit of a Presidential pardon,
as the Presidential power to pardon “extends to every offence known to
the law, and may be exercised at any time after its commission, either
before legal proceedings are taken, or during their pendency, or after con-
viction and judgment. This power of the President is not subject to legisla-
tive control.” Ex parte Garland, 71 U.S. at 380. The description of the
expansive Presidential power to pardon is in stark contrast to the more
limited analysis conducted in FFOA cases, where there is a specific stan-
dard that must be satisfied. See, e.g., Aguiluz-Arellano v. Gonzales, 446
F.3d 980, 983 (9th Cir. 2006) (“Because the conviction for being under the
influence was Aguiluz-Arellano’s second conviction for a drug offense,
the FFOA could not have applied if he had been prosecuted in federal
court.”) (citation omitted).
                   AGUILERA-MONTERO v. MUKASEY                       15883
Montero’s argument is flawed, as it is based on Ex parte
Garland and related cases, which we have rejected in the
immigration context. See Yuen, 406 F.2d at 501-02.9

   [8] Aguilera-Montero, therefore, fails to demonstrate that
the absence of a waiver for inadmissible aliens with a state
pardon is “wholly irrational [so as] to violate equal protec-
tion.” de Martinez, 374 F.3d at 764 (citations and internal
quotation marks omitted).10

IV.    CONCLUSION

   Because Aguilero-Montero is an inadmissible alien and no
statutory basis exists to waive his inadmissibility, he cannot
adjust his status to that of a lawful permanent resident. Nei-
ther his state pardon nor his equal protection claim changes
the fact that Congress has expressly declined to provide a
waiver for an inadmissible alien convicted of a crime relating
to a controlled substance.
   9
     Aguilera-Montero relies on a memorandum from the Office of Legal
Counsel (OLC) as additional support for his argument. The OLC dis-
agreed with Yuen’s conclusion that deportation does not constitute punish-
ment. 19 U.S. Op. O.L.C. 160 (O.L.C. June 19, 1995) (OLC Memo). The
OLC’s disagreement concerned the effect of a Presidential pardon, with
the OLC concluding that “congressional legislation cannot define or limit
the effect of a presidential pardon.” Id. However, Aguilera-Montero’s case
involves a state pardon. In any event, the OLC’s opinion addressed 8
U.S.C. § 1251, the statutory predecessor to 8 U.S.C. § 1227. See id. The
OLC’s analysis necessarily failed to encompass the interplay between 8
U.S.C. § 1227 and 8 U.S.C. § 1182. See OLC Memo (“[T]he question
raised . . . is not a matter of statutory interpretation, but instead entails
consideration of the scope of the President’s pardon authority under the
Constitution.”).
   10
      Aguilera-Montero also asserts that the IJ erred in not permitting him
to apply for adjustment of status and a waiver pursuant to 8 C.F.R.
§ 212.2(e). However, as an inadmissible alien, Aguilera-Montero is not
entitled to adjustment of status. See Blanco v. Mukasey, 518 F.3d 714, 720
(9th Cir. 2008) (“In removal proceedings, the alien has the burden of
establishing that he is clearly and beyond doubt entitled to be admitted and
is not inadmissible.”) (citation and internal quotation marks omitted).
15884      AGUILERA-MONTERO v. MUKASEY
  PETITION FOR REVIEW DENIED.
