Abebe v. Gonzales

Decision Date09 July 2007
Docket NumberNo. 05-76201.,05-76201.
Citation493 F.3d 1092
PartiesYewhalashet ABEBE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Der Hout, Brigagliano & Nightingale, LLP, San Francisco, CA, (argued), for the petitioner.

Song E. Park (briefed) and John C. Cunningham (argued), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

Zachary Nightingale and Avantika Shastri, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, CA, filed a brief for the Immigration Law Clinic of the School of Law at the University of California, Davis, the Immigrant Legal Resource Center, and the National Immigration Project of the National Lawyers Guild as amici curiae in support of petitioner.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A26-810-941.

Before: D.W. NELSON, ROBERT E. COWEN,* and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge D.W. NELSON; Concurrence by Judge BERZON.

D.W. NELSON, Senior Circuit Judge:

Yewhalashet Abebe ("Abebe" or "Petitioner") seeks review of a decision by the Board of Immigration Appeals ("BIA" or "Board") finding him ineligible to apply for discretionary relief from removal under former section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (Supp. IV 1992) (repealed 1996),1 because the ground of deportability charged by the government—conviction of an "aggravated felony" within the meaning of INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), which defines the term to include "sexual abuse of a minor" crimes— lacks a comparable ground of inadmissibility under INA § 212(a), 8 U.S.C. § 1182(a). Abebe further challenges the BIA's refusal to review a claim raised in connection with his application for withholding of removal under INA § 241(b), 8 U.S.C. § 1231(b). We perceive no error with respect to the availability of § 212(c) relief and deny the petition on that issue. In a separate memorandum disposition filed concurrently herewith, we remand to the Board for an initial determination on the merits of the withholding claim.

I. BACKGROUND2

Petitioner is a citizen of Ethiopia who entered the United States as a refugee and became a lawful permanent resident ("LPR") in 1984. In 1992, pursuant to a guilty plea, Abebe was convicted of committing "lewd/lascivious conduct upon a child" in violation of California Penal Code § 288(a). He was sentenced to one year in jail and three years of supervised probation. In addition, Abebe was required to register as a sex offender and to provide registration updates to local police within five days of his birthday for each year he remained in California. After serving his sentence, Petitioner's only other contact with the criminal justice system occurred in 2001 when he failed to renew his sex offender registration by the statutory deadline. He was convicted of an offense under California Penal Code § 290(g)(2) and sentenced to 120 days in jail.

In 2005, the government commenced removal proceedings asserting that Abebe was deportable on the independent grounds that he (1) had been convicted of two crimes involving moral turpitude ("CIMT"), INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii); and (2) had been convicted of an aggravated felony, INA § 237(a)(2)(A)(iii)—namely, the 1992 "sexual abuse of a minor" conviction. The IJ dismissed the first charge after the government conceded that Abebe's failure to update his sex offender registration was not a CIMT. The second charge was sustained. Abebe does not contest the finding of removability.

Petitioner sought several forms of relief from removal including a discretionary waiver of inadmissibility authorized by former § 212(c). Although § 212(c) was repealed in 1996, because Abebe's 1992 conviction was obtained through a guilty plea, if he "would have been eligible for § 212(c) relief at the time of [his] plea under the law then in effect," he remained so during the removal proceedings. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that Congress did not unmistakably indicate an intention to apply the repeal of § 212(c) retroactively to aliens who may have relied on its availability in deciding whether to forgo their right to a criminal trial). At the time of Abebe's plea, § 212(c) stated that

[a]liens lawfully admitted for permanent residence 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 without regard to the provisions of subsection (a) [(establishing classes of aliens to be excluded from admission to the United States)]. . . . The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. § 1182(c) (Supp. IV 1992).

On the face of the statute, § 212(c) does not apply to Abebe's case because he is not returning from a temporary overseas journey and is not facing exclusion from admission to the United States under § 212(a) but, instead, is being deported from the interior of the country on the authority of § 237(a). However, as described below, through a decades-long series of administrative and judicial decisions, the Attorney General's statutory authority to grant relief from exclusion has been interpreted to carry with it a similar authority to grant relief from deportation under certain circumstances. Even so, the IJ held that there was no authority to grant relief to Abebe because the ground of deportability sustained — conviction of an aggravated felony/sexual abuse of a minor crime — lacked a comparable charge of inadmissibility under § 212(a).

Relying on Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005), and a recently promulgated regulation, 8 C.F.R. § 1212.3(f)(5), the BIA affirmed. In his petition for review, Abebe argues that the Board's interpretation of former § 212(c) must be rejected because: (1) it is invalid as a matter of statutory construction; (2) it violates principles of equal protection; and (3) it is impermissibly retroactive as applied to him.3 We disagree. In so doing, we join the First, Third, Fifth, and Seventh Circuits, Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st Cir.2007); Kim v. Gonzales, 468 F.3d 58 (1st Cir.2006); Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007); Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir.2007); Avilez-Granados v. Gonzales, 481 F.3d 869 (5th Cir.2007); Vo v. Gonzales, 482 F.3d 363 (5th Cir.2007); Valere v. Gonzales, 473 F.3d 757 (7th Cir. 2007); see also Rubio v. U.S. Atty. Gen., 182 Fed.Appx. 925 (11th Cir.2006) (unpublished), and part ways with the Second, Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007).

II. STATUTORY BACKGROUND — HISTORY OF § 212(c)

The immigration laws have long distinguished between the exclusion of non-citizens seeking to enter the United States and the deportation of those who have already crossed our borders. See Immigration Act of 1917 ("1917 Act") §§ 3, 19, 39 Stat. 875, 889(defining classes of excludable4 and deportable aliens respectively); Immigration and Nationality Act of 1952 ("1952 Act") §§ 212, 241, 66 Stat. 182, 204 (same).5 There is no question that Congress has the power to establish different standards for admission into the United States and deportation therefrom. For instance, it was certainly rational for Congress to turn away aliens at the border who were "afflicted with ... loathsome or dangerous contagious disease[s]," 1917 Act § 3, 39 Stat. 875, but to allow aliens who contracted such diseases after entry to remain. The immigration laws generally reflect a policy choice that what might count as a good reason to deny admission to a first-time entry-seeker might not be a good reason to expel a resident alien who has developed ties to this country. However, in many cases, an alien who has once surmounted the initial barriers to admission will nevertheless be assimilated to the position of a first-time entry-seeker if he travels outside the territorial United States and attempts to return.6 This system makes travel hazardous for the long-term resident and conflicts with the intuitive appeal of the exclusion/deportation distinction.

Consequently, the immigration laws historically provided preferential treatment to long-term resident aliens who sought to reenter the United States after a trip abroad. Congress could have exempted such aliens from the excludability tests altogether but generally chose not to take this approach.7 Instead, long-term residents returning to the United States have been the beneficiaries of provisions authorizing discretionary relief from the grounds of exclusion.

An early version was codified in the seventh proviso to § 3 of the 1917 Act which allowed "aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years [to] be admitted in the discretion of the Secretary of Labor" notwithstanding membership in an excluded class. 39 Stat. 878.8 In this way, Congress diminished the risks faced by long-term resident aliens who traveled abroad.

Although the seventh proviso only authorized relief from the process of exclusion at the border, it was extended into the deportation context because of the overlap between certain deportation and exclusion provisions. An early case involved a Yugoslavian citizen who attained legal resident status in 1909 and was convicted of larceny—a crime involving moral turpitude—in 1924. Matter of L____, 1 I. & N. Dec. 1, 1 (BIA, Att'y Gen.1940). Under the law then in effect, if an alien committed a CIMT...

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  • Abebe v. Mukasey, 05-76201.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 20 Noviembre 2008
    ...432, 434-35 (9th Cir.1994), the three-judge panel held that petitioner isn't eligible for section 212(c) relief. Abebe v. Gonzales, 493 F.3d 1092, 1104-05 (9th Cir.2007), vacated, 514 F.3d 909 (9th Cir.2008). Under Komarenko, 35 F.3d at 434-35, a deportable alien can only be eligible for se......
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