Abebe v. Mukasey

• Decision Date: 20 November 2008
• Docket Number: No. 05-76201.,05-76201.
• Citation: 548 F.3d 787
• Parties: Yewhalashet ABEBE, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

548 F.3d 787

Yewhalashet ABEBE, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 05-76201.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 25, 2008.

Filed November 20, 2008.

Robert B. Jobe (argued) and Fatma Marouf, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner.

Thomas H. Dupree, Jr., Deputy Assistant Attorney General; Peter D. Keisler, Assistant Attorney General; M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation; Song E. Park, Office of Immigration Litigation, Washington, DC, for the respondent.

Zachary Miller Nightingale, Avantika Shastri, and Marc Van Der Hout, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California, for amicus curiae, the National Immigration Project of the National Lawyers Guild.

Mark Christopher Fleming and James Quarles, Wilmer Cutler Pickering Hale & Dorr, LLP, Boston, Massachusetts, for amicus curiae, Joel Judulang.

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

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, BARRY G. SILVERMAN, RONALD M. GOULD, RICHARD C. TALLMAN, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, CARLOS T. BEA and N. RANDY SMITH, Circuit Judges.

PER CURIAM Opinion; Concurrence by Judge CLIFTON; Dissent by Judge THOMAS.

PER CURIAM:

1. Petitioner became a lawful permanent resident in 1984 and, in 1992, pled guilty to lewd and lascivious conduct upon a child. Cal.Penal Code § 288(a). INS commenced removal proceedings on the ground that he was deportable as having committed an "aggravated felony," 8 U.S.C. § 1227(a)(2)(A)(iii) — "sexual abuse of a minor," id. § 1101(a)(43)(A). The Immigration Judge (IJ) denied petitioner's asylum, withholding of removal and Convention Against Torture claims, and found petitioner ineligible for a discretionary waiver of deportation under former Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).¹ On appeal to the Board of Immigration Appeals (BIA), petitioner argued that he's eligible for section 212(c) relief. The BIA affirmed, and Abebe petitions for review.

2. Petitioner argues that, by finding him ineligible for section 212(c) relief, the BIA denied him equal protection. Relying on Komarenko v. INS, 35 F.3d 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 section 212(c) relief if his grounds for deportation are substantially identical to a ground for inadmissibility.² Here, petitioner is deportable for committing an "aggravated felony," 8 U.S.C. § 1227(a)(2)(A)(iii), which the panel held isn't substantially identical to the most analogous ground for inadmissibility — committing a "crime involving moral turpitude," id. § 1182(a)(2)(A)(i)(I). Abebe, 493 F.3d at 1104-05. Petitioner claims that the rationale of Komarenko can't be squared with that of Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.1981). He therefore asks us to overrule Komarenko, and hold that a deportable alien can only be eligible for section 212(c) relief if his conviction is substantially identical to a ground for inadmissibility. See Abebe, 493 F.3d at 1106 (Berzon, J., concurring).

Under its plain language, section 212(c) only gives the Attorney General discretion to grant lawful permanent residents relief from inadmissibility³ — not deportation. See 8 U.S.C. § 1182(c) (repealed 1996). Tapia-Acuna, though, followed Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976), and held that equal protection required us to extend section 212(c) relief to aliens facing deportation — if such aliens would have been eligible for section 212(c) relief from inadmissibility, had they left the United States and attempted to reenter. Tapia-Acuna, 640 F.2d at 225. In following Francis, Tapia-Acuna reasoned that there is no rational basis for granting additional immigration relief to aliens who temporarily leave the United States and try to reenter (i.e., aliens facing inadmissibility), than to aliens who remain in the United States (i.e., aliens facing deportation). Tapia-Acuna, 640 F.2d at 225. According to Francis and Tapia-Acuna, it is wholly irrational for Congress to give any advantage to aliens outside the United States that it denies to similarly situated aliens within the United States.

We are not convinced that Francis and Tapia-Acuna accorded sufficient deference to this complex legislative scheme, and therefore reconsider this question, as we are authorized to do en banc. We note at the outset that the statute doesn't discriminate against a discrete and insular minority or trench on any fundamental rights, and therefore we apply a standard of bare rationality. United States v. Barajas-Guillen, 632 F.2d 749, 752 (9th Cir. 1980) (quoting Alvarez v. Dist. Dir. of the U.S. INS, 539 F.2d 1220, 1224 (9th Cir. 1976)). Congress has particularly broad and sweeping powers when it comes to immigration, and is therefore entitled to an additional measure of deference when it legislates as to admission, exclusion, removal, naturalization or other matters pertaining to aliens. See Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Boutilier v. INS, 387 U.S. 118, 123-24, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967); Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Our task, therefore, is to determine, not whether the statutory scheme makes sense to us, but whether we can conceive of a rational reason Congress may have had in adopting it.⁴

We can: Congress could have limited section 212(c) relief to aliens seeking to enter the country from abroad in order to "create[ ] an incentive for deportable aliens to leave the country." Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 309 (5th Cir.1999) (quoting LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998)); see DeSousa v. Reno, 190 F.3d 175, 185 (3d Cir. 1999). A deportable alien who wishes to obtain section 212(c) relief will know that he can't obtain such relief so long as he remains in the United States; if he departs the United States, however, he could become eligible for such relief. By encouraging such self-deportation, the government could save resources it would otherwise devote to arresting and deporting these aliens. See Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1153 (10th Cir. 1999), abrogated in part by INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Saving scarce resources that would otherwise be paid for by taxpayers is certainly a legitimate congressional objective.

We thus overrule Tapia-Acuna's holding that there's no rational basis for providing section 212(c) relief from inadmissibility, but not deportation. The BIA therefore didn't violate petitioner's right to equal protection by finding him ineligible for section 212(c) relief from deportation. Since petitioner was not eligible for section 212(c) relief in the first place, the BIA could not have committed an equal protection violation by denying him such relief. We affirm the BIA's section 212(c) ruling, and have no reason to reconsider Komarenko. Indeed, under our ruling today, Komarenko becomes a dead letter, as its only purpose was to fill a gap created by Tapia-Acuna.

3. Petitioner also argues that the IJ erred by denying his claim for withholding of removal. But petitioner didn't raise a withholding of removal claim in his brief before the BIA, and the BIA was therefore not required to consider it. See, e.g., Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 535 n. 11 (3d Cir. 2007) (issues raised in the notice of appeal but not argued in appellant's principal brief are deemed abandoned). When a petitioner files no brief and relies entirely on the notice of appeal to make an immigration argument, as he may do before the BIA, see 8 C.F.R. § 1003.38(f), then the notice of appeal serves in lieu of a brief, and he will be deemed to have exhausted all issues raised therein. But when a petitioner does file a brief, the BIA is entitled to look to the brief for an explication of the issues that petitioner is presenting to have reviewed. Petitioner will therefore be deemed to have exhausted only those issues he raised and argued in his brief before the BIA. Here, petitioner did file a brief, which did not raise the withholding of removal issue. He therefore didn't exhaust that claim, and we lack jurisdiction to review it. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004) (citing 8 U.S.C. § 1252(d)(1)). Ladha v. INS, 215 F.3d 889, 903 (9th Cir.2000), is overruled.

PETITION DENIED IN PART and DISMISSED IN PART.⁵

CLIFTON, Circuit Judge, with whom Circuit Judges SILVERMAN and GOULD join, concurring in the judgment:

I concur in the judgment, denying in part and dismissing in part Yewhalashet Abebe's petition for review. I do not join most of the majority opinion,¹ however, because I believe it is both unnecessary and unwise to overrule our prior decision in Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.1981), to reach that result. The government has not advocated such a drastic step. The original decision by a three-judge panel of our court, Abebe v. Gonzales, 493 F.3d 1092 (9th Cir.2007), reached the same result in this case as the majority reaches today, simply by applying our existing precedent, Komarenko v INS, 35 F.3d 432 (9th Cir.1994). The en banc panel should do the same.

I share the concern expressed in the dissent with overruling more than sixty years of agency precedent and more than twenty-seven years of our own precedent. I also share the fear that the path taken by the majority puts into jeopardy the agency's ability to continue to grant discretionary relief in removal proceedings pursuant to 8 C.F.R. §...