Seventh Circuit Notes Split Re Eligibility of Aliens for § 212(c) Relief

Per Frederick v. Holder, --- F.3d ----, 2011 WL 1642811 (7th Cir. May 3, 2011):

Cases from this circuit have agreed with and adopted the BIA's holding in Blake that aliens who are removable for sexually abusing a minor are not eligible for § 212(c) relief because that offense has no comparable ground of inadmissibility in § 212(a). See Zamora–Mallari, 514 F.3d at 692–93; Valere, 473 F.3d at 761–62. We are joined in this approach to the statutory-counterpart rule by the majority of circuits to have considered the issue. See De la Rosa v. U.S. Att'y Gen., 579 F.3d 1327, 1337 (11th Cir.2009), cert. denied, 130 S.Ct. 3272 (2010); Koussan v. Holder, 556 F.3d 403, 412–14 (6th Cir.2009); Vue v. Gonzales, 496 F.3d 858, 861 (8th Cir.2007); Abebe v. Gonzales, 493 F.3d 1092, 1104 (9th Cir.2007); Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st Cir.2007); Vo v. Gonzales, 482 F.3d 363, 368–69 (5th Cir.2007); Caroleo v. Gonzales, 476 F.3d 158, 167–68 (3d Cir.2007). Moreover, in applying the statutory-counterpart test, we look to the actual charge of removal, not what DHS could have charged as a basis for removal. Zamora–Mallari, 514 F.3d at 692; see id. (“[I]f courts were to look beyond the charged grounds of deportation to the underlying criminal offense to determine whether the criminal offense could have been treated as a crime of moral turpitude, that would greatly expand the role Congress assigned the judiciary in immigration cases.”). Only the Second Circuit takes a different approach.FN3 The Supreme Court has just granted certiorari to resolve the lopsided circuit split. Judulang v. Holder, 249 F. App'x 499 (9th Cir.2007), cert. granted, 79 U.S.L.W. 3344 (U.S. Apr. 18, 2011) (No. 10–694).

FN3. In Zamora–Mallari, 514 F.3d at 692, we declined to follow the Second Circuit's decision in Blake v. Carbone, 489 F.3d 88 (2d Cir.2007). The Second Circuit's decision in Blake adopted an offense-based approach to the statutory-counterpart inquiry. Instead of comparing the actual ground of removal to a ground of inadmissibility, Blake requires that the BIA consider whether a “particular aggravated felony offense could form the basis of exclusion under § 212(a) as a crime of moral turpitude.” Id. at 104 (emphasis added). * * *


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