35 F.3d 432 (9th Cir. 1994), 92-70595, Komarenko v. I.N.S.

Docket Nº:92-70595.
Citation:35 F.3d 432
Party Name:Alexander KOMARENKO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:September 09, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 432

35 F.3d 432 (9th Cir. 1994)

Alexander KOMARENKO, Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-70595.

United States Court of Appeals, Ninth Circuit

September 9, 1994

Argued and Submitted Feb. 8, 1994.

Page 433

Daniel E. Kritz, Sideman & Bancroft, San Francisco, CA, for petitioner.

Francesco Isgro, Attorney, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision and Order of the Board of Immigration Appeals.

Before: FLETCHER, KOZINSKI and TROTT, Circuit Judges.

TROTT, Circuit Judge:

On March 12, 1990, Alexander Komarenko, a former Soviet citizen and a lawful permanent

Page 434

resident of the United States, was convicted of assault with a deadly weapon in violation of California Penal Code Sec. 245(a)(2) and sentenced to four years of imprisonment. The I.N.S. commenced deportability proceedings against Komarenko under 8 U.S.C. Sec. 1251(a)(2)(C) for being an alien convicted of a firearms charge.

Komarenko concedes he is deportable, but submitted to the I.N.S. applications for asylum, withholding of deportation and waiver of inadmissibility. An Immigration Judge ("IJ") held that Komarenko was: 1) ineligible for asylum under 8 U.S.C. Sec. 1158(a); 2) "statutorily ineligible" for withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)(B); and, 3) "statutorily ineligible" for waiver of inadmissibility under 8 U.S.C. Sec. 1182(c).

Komarenko appealed to the Board of Immigration Appeals ("BIA"), which dismissed his appeal. The BIA concluded: 1) Komarenko was ineligible for waiver of inadmissibility under Sec. 212(c) of the INA, based on the reasoning in Cabasug v. I.N.S., 847 F.2d 1321 (9th Cir.1988); 2) Komarenko had been convicted of a "serious crime" and was therefore ineligible for asylum pursuant to 8 C.F.R. Sec. 208.14(c)(1) and for withholding of deportation pursuant to 8 U.S.C. Sec. 1253(h)(2)(B). Komarenko petitions for review of the BIA's dismissal of his appeal. See 8 U.S.C. Sec. 1105a (1988).

I

Komarenko argues the Immigration Judge's "absolute refusal" to allow him access to relief under Sec. 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1182(c) (1988), violates his right to equal protection of the law under the Due Process Clause of the Fifth Amendment. "It 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 Process Clause incorporates the guarantees of equal protection." Garberding v. I.N.S., 30 F.3d 1187, 1190 (9th Cir.1994) (citations omitted). "We review de novo the [BIA's] determination of purely legal questions regarding the requirements of the Immigration and Nationality Act." Abedini v. I.N.S., 971 F.2d 188, 190-91 (9th Cir.1992).

We have held that "when the basis upon which the INS seeks deportation is identical to a statutory ground for exclusion for which discretionary relief would be available, the equal protection component of the fifth amendment due process guarantee requires that discretionary relief be accorded in the deportation context as well." Gutierrez v. I.N.S., 745 F.2d 548, 550 (9th Cir.1984) (emphasis added); see also Cabasug, 847 F.2d at 1325; Tapia-Acuna...

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