2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-7-2007

Caroleo v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-3762

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 05-3762

__________

SALVATORE CAROLEO,

 Petitioner,

vs.

ALBERTO R. GONZALES,

Attorney General of the United States,

Respondent.

__________

On Petition for Review of an Order of 

the Board of Immigration Appeals

U.S. Department of Justice

(BIA No. A36-322-567)

__________

Submitted Under Third Circuit L.A.R. 34.1(a)

September 15, 2006

Before: SLOVITER, WEIS and GARTH, Circuit Judges

(Opinion Filed: February 7, 2007)
-2-

Mario Apuzzo, Esq.

185 Gatzmer Avenue

Jamesburg, NJ 08831

Counsel for Petitioner

Peter D. Kiesler

Michael P. Lindemann

Ethan B. Kanter

U.S. Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044 

Counsel for Respondent

 __________

OPINION

__________

Garth, Circuit Judge:

Petitioner Salvatore Caroleo seeks our review of a

decision of the Board of Immigration Appeals (“BIA”) denying

his motion for a discretionary waiver of removal pursuant to 

§ 212(c) of the Immigration and Nationality Act (“INA”).

Because we agree with the BIA’s determination that an

aggravated felony/crime of violence – for which Caroleo has

been found removable on the basis of his state court conviction
-3-

for attempted murder – has no statutory counterpart in § 212(a)

of the INA, we will deny Caroleo’s petition. 

I.

Petitioner Salvatore Caroleo, a 35 year-old native and

citizen of Italy, entered the United States as a lawful permanent

resident on an Immigrant Visa on April 23, 1978. In December

1993, Caroleo was indicted in New Jersey Superior Court on a

number of charges related to an attack he committed on a

woman in Middlesex County. By letter dated March 14, 1996,

New Jersey State Assistant Prosecutor Robert J. Brass offered

Caroleo a plea agreement. The terms of the proposal required

Caroleo to plead guilty to three counts: attempted murder,

second-degree burglary, and possession of a weapon for

unlawful purposes. Under the terms of the plea offer, Caroleo’s

maximum custodial sentence would be twelve years, with a

four-year period of parole ineligibilty. 

On November 1, 1996, Caroleo appeared in court with

his attorney, Louis C. Esposito, and formally accepted Brass’s

March 14, 1996 plea offer. On January 6, 1997, Caroleo was

sentenced, in accordance with the plea agreement, to a total of

twelve years imprisonment. The sentence provided that Caroleo

would not be eligible for parole prior to serving four years. 
-4-

II.

On June 12, 2000, while still incarcerated, Caroleo was

served by the INS with a Notice to Appear, charging him with

being removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. §

1227(a)(2)(A)(iii), as an alien convicted of an “aggravated

felony,” as that term is defined in INA § 101(a)(43), 8 U.S.C. §

1101(a)(43). In particular, the Notice to Appear contained two

charges relating to two separate aggravated felonies. The first

charge alleged that Caroleo had been convicted of an aggravated

felony consisting of “a crime of violence [attempted murder] 

. . . for which the term of imprisonment [is] at least one year.”

INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F). The second

charge alleged that Caroleo was convicted of the aggravated

felony of “a theft offense . . . or burglary offense for which the

term of imprisonment [is] at least one year.” INA §

101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G). 

A hearing was held before an immigration judge (“IJ”) on

April 19, 2001. At the hearing, Caroleo, who was represented

by counsel, conceded the removal charges, and sought to apply

for a discretionary waiver of deportation under INA § 212(c).

Counsel for Caroleo acknowledged that the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), which took effect in

1996, foreclosed § 212(c) relief to individuals such as Caroleo

who had been convicted of aggravated felonies. He argued,

however, that Caroleo might still be entitled to relief under the
-5-

Second Circuit’s decision in St. Cyr v. INS, 229 F.3d 406 (2d

Cir. 2000), which held that AEDPA’s restriction on § 212(c)

relief to aggravated felons could not be applied retroactively to

aliens who pled guilty prior to AEDPA’s effective date of April

24, 1996. Caroleo conceded that he had pled guilty after that

date, but asserted that, because his crime had been committed in

1993 – prior to the enactment of AEDPA – the principles of St.

Cyr should be extended to render AEDPA inapplicable to him.

On April 19, 2001, the IJ issued an oral decision ordering

that Caroleo be removed. The IJ rejected Caroleo’s argument

that the holding of St. Cyr should be extended to aliens like

Caroleo whose crime had been committed prior to – but had

pled guilty after – AEDPA’s effective date. The IJ therefore

held that St. Cyr was inapplicable to Caroleo because Caroleo

“has conceded that he pled guilty on November 1, 1996,” which

was after the April 24, 1996 effective date of AEDPA. 

Caroleo filed his appeal to the BIA shortly after the

Supreme Court affirmed St. Cyr on June 25, 2001. On appeal,

Caroleo again argued that he was not subject to AEDPA’s

limitations on § 212(c) relief because his offense was committed

in 1993, prior to the enactment of AEDPA. On July 30, 2001,

the BIA dismissed the appeal. In its order, the BIA stated that

Caroleo “acknowledges that he pled guilty to attempted murder

and burglary on or about November 1, 1996,” a date after

AEDPA had taken effect, and that St. Cyr only applies to aliens

who pled guilty prior to AEDPA’s effective date regardless of
-6-

when their crimes were committed. 

III.

On April 25, 2005, Caroleo filed a special motion with

the BIA seeking § 212(c) relief. Caroleo specifically relied

upon regulations then recently adopted by the Department of

Justice to implement St. Cyr. Those regulations provide that an

alien need only have agreed with the prosecutor informally to

plead guilty prior to AEDPA’s effective date to avoid the

limitations imposed by AEDPA. In his motion, Caroleo

asserted, for the first time, that although his guilty plea was not

formally entered in court until November 1, 1996, he had in fact

informally accepted the prosecution’s March 14, 1996 plea offer

prior to AEDPA’s April 24, 1996 effective date, and that he was

therefore eligible to be considered for § 212(c) relief under preAEDPA standards. To support this assertion, Caroleo submitted

an affidavit from Louis C. Esposito, the attorney who had

represented him in his criminal case. In the affidavit, Esposito

stated:

3. Due to the quantity and quality of the evidence

the State had against Mr. Caroleo, he and I never

seriously considered a trial. We therefore

immediately opened plea negotiations with

Assistant Prosecutor Robert J. Brass.

4. On March 14, 1996, Mr. Brass made a plea

offer. The offer was transmitted in a letter to me
-7-

dated March 14, 1996 . . . This offer was

accepted by Mr. Caroleo and me shortly after I

received the letter.

5. Due to my busy trial calendar and the mental

health problems and several mental health

hospitalizations experienced by Mr. Caroleo, the

offer was not formally acted upon until November

1, 1996, the day Mr. Caroleo entered his guilty

plea on the record in the Superior Court of New

Jersey . . .

6. The initial offer which we received in writing

in Mr. Brass’s letter dated March 14, 1996 was

never rejected and accepted as presented almost

immediately. . . .

7. I have a clear recollection of the facts of the

case, the plea negotiations with the State, the time

that the State made the offer, the time that Mr.

Caroleo and I accepted that offer, and would, if

required, be willing to testify in open court to this

knowledge. I can state with certainty that we

accepted the State’s plea offer dated March 14,

1996 before April 24, 1996. 

Caroleo acknowledged that, under amendments to the

INA that were in place since 1990, § 212(c) relief was

unavailable to any alien who had served a term of imprisonment

of at least five years for an aggravated felony. At the time his

special motion seeking § 212(c) relief was filed in April 2005,
-8-

Caroleo was still incarcerated, and had, to that point, served

more than eight years in prison. 

Caroleo presented two main arguments that he was

nevertheless entitled to relief. First, as a matter of statutory

interpretation, Caroleo argued that the time at which to evaluate

whether an alien has “served a term of imprisonment of at least

five years,” thus rendering him ineligible for consideration

under § 212(c), is when the alien first seeks to apply for such

relief – or at the latest, upon entry of a final order of removal.

In the present case, Caroleo had sought to apply for a § 212(c)

waiver at the hearing before the IJ on April 19, 2001, at which

time he had served fewer than five years. Moreover, Caroleo

had still not served five years at the time when the BIA issued

its July 30, 2001 order affirming the IJ’s decision. 

Second, Caroleo argued that, even if he was found to be

statutorily barred from relief under § 212(c), the BIA should

nevertheless consider his application on equitable grounds.

Caroleo asserted that it would be unjust to deny him § 212(c)

relief on the basis of his now having served more than five

years’ incarceration, when he had, in fact, sought such relief

prior to having served five years, but had been wrongly denied

the opportunity to do so. Caroleo therefore asked the BIA to

employ the equitable remedy of nunc pro tunc to consider his §

212(c) application as though he had properly filed it before

serving five years. 
-9-

In an order dated July 7, 2005, the BIA denied Caroleo’s

motion. First, the BIA ruled that Caroleo was ineligible for a §

212(c) waiver because the aggravated felony convictions on the

basis of which Caroleo was found removable – i.e., “crime of

violence” and “theft or burglary offense,” “do not have a

statutory counterpart in section 212(a) of the Act.” As a second

ground for denying his motion, the order stated: “it appears that

the respondent has served more than 5 years of incarceration for

his aggravated felony convictions. If this is true, it would also

render him ineligible for a section 212(c) waiver.” Caroleo then

filed this timely petition. 

IV.

We have jurisdiction to review constitutional claims or

questions of law raised upon a petition for review from a final

order of the BIA pursuant to INA § 242(a), 8 U.S.C. § 1252(a)

as amended by section 106 of the REAL ID Act of 2005, Pub.

L. No. 109-13, Div. B, 119 Stat. 231, 310 (2005). We review

such constitutional claims and questions of law de novo.

Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.2005). 

In order for Caroleo to establish his eligibility for §

212(c) relief, he must demonstrate (i) that he agreed to plead

guilty prior to AEDPA’s effective date, and is therefore not

subject to AEDPA’s absolute bar on § 212(c) relief to
We consider all three of Caroleo’s claims even though 1

the BIA’s July 7, 2005 decision deals only with the “five year”

and “statutory counterpart” grounds. 

-10-

aggravated felons; (ii) that he is entitled to invoke § 212(c) 1

despite having now served more than five years in prison; and

(iii) that the basis for his removal has a “statutory counterpart”

ground for exclusion in INA § 212(a). Caroleo must prevail on

all three grounds to succeed in his petition – i.e., to establish his

eligibility for relief under INA § 212(c). 

Were we to reach the first two issues, we would hold that

Caroleo should be permitted, on equitable grounds, to apply for

§ 212(c) relief despite having now served more than five years

in prison, and that Caroleo’s application should be remanded for

a determination of when Caroleo agreed to plead guilty. These

issues are mooted, however, by our conclusion that Caroleo is

ineligible for § 212(c) relief as a result of his failure to satisfy

the “statutory counterpart” requirement under § 212(c) because

at least one of the grounds upon which the government seeks his

removal – the aggravated felony of “crime of violence”

(attempted murder) – does not have a statutory counterpart in

INA § 212(a). Thus, even if we held for Caroleo on the first two

issues listed above, his petition must nevertheless be denied. 

1.

The principle that § 212(c) is available in removal
Section 212(c) was repealed in the Illegal Immigration 2

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),

Pub. L. No. 104-208 § 304, 110 Stat. 3009-597 (1996). Relief

under § 212(c) remains available, however, pursuant to St. Cyr,

for aliens who have been found removable pursuant to guilty

pleas entered prior to § 212(c)’s repeal. 

The statutory counterpart requirement has somewhat 3

tortuous origins. Under its literal terms, § 212(c) offers relief

only to aliens who leave the United States and are faced with

exclusion under the provisions of INA § 212(a). See INA §

212(c), 8 U.S.C. § 1182(c)(“Aliens lawfully admitted for

-11-

proceedings only where the ground for removal has a “statutory

counterpart” ground for exclusion has been firmly in place and

consistently applied since at least 1991. This requirement has 2

also recently been codified in the INS regulations:

(f) Limitations on discretion to grant an

application under section 212(c) of the Act. An

application for relief under former section 212(c)

of the Act shall be denied if:

. . . . 

(5) The alien is deportable under former section

241 of the Act or removable under section 237 of

the Act on a ground which does not have a

statutory counterpart in section 212 of the Act.

8 C.F.R. § 1212.3(f) (emphasis added). See also Farquharson 3
permanent residence who temporarily proceed abroad . . . may

be admitted in the discretion of the Attorney General [despite

being faced with exclusion under the provisions of INA §

212(a)]”)(emphasis added). 

The INS, however, extended § 212(c) relief to a subclass

of aliens in removal or deportation proceedings: aliens who had

left the United States and then were permitted to reenter despite

being excludable. This practice yielded an inequitable result by

treating differently, removable aliens who had left and reentered

the United States and those who had never left. Under the INS’s

policy, by the simple expedient of taking a trip abroad, the

former class of aliens became eligible for discretionary relief

while the latter were not. (We use the term “removal” instead

of “deportation” because the statutory term used in the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”) is “removal”). Finding this distinction “not

rationally related to any legitimate purpose of the statute,” the

Second Circuit in 1976 struck it down as a violation of the equal

protection component of the Due Process Clause of the Fifth

Amendment. Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976).

The BIA subsequently adopted this reasoning in Matter of Silva,

16 I. & N. Dec. 26 (BIA 1976), and extended § 212(c) relief to

removable aliens regardless of whether they had departed the

United States since the commission of the act rendering them

removable. 

Under the rationale of Francis and Silva, certain aliens

removable under INA § 237 may receive § 212(c) relief as if

-12-
they were subject to exclusion rather than removal. However,

the equal protection rationale underlying the extension of §

212(c) relief to removable aliens only requires that such relief be

made available to removable aliens who would be excludable

for the same reasons that render them removable – a situation

not true for all aliens facing removal. Accordingly, § 212(c)

relief was not extended to aliens whose removability is based

upon a ground for which a comparable ground of exclusion –

i.e. a statutory counterpart – does not exist. See Matter of

Wadud, 19 I. & N. Dec. 182, 184 (BIA 1984); Matter of

Granados, 16 I. & N. Dec. 726 (BIA 1979). 

As we have recognized in note 2, supra, § 212(c) was

repealed in 1996, and relief under that statute is now available

only to aliens who entered guilty pleas prior to that date. 

-13-

v. United States AG, 246 F.3d 1317, 1324 (11th Cir. 2001);

Cato v. INS, 84 F.3d 597 (2d Cir. 1996); Gjonaj v. INS, 47 F.3d

824, 827 (6th Cir. 1995); Komarenko v. INS, 35 F.3d 432, 435

(9th Cir. 1994); Chow v. INS, 12 F.3d 34, 38 (5th Cir. 1993);

Leal-Rodriguez v. INS, 990 F.2d 939, 948-52 (7th Cir. 1993);

Campos v. INS, 961 F.2d 309, 316-17 (1st Cir. 1992). 

Caroleo argues he should not be removed because he

satisfies the “statutory counterpart” requirement in that his

criminal convictions – for attempted murder, burglary, and

unlawful possession of a weapon for an unlawful purpose –

constitute “crime[s] involving moral turpitude,” one of the

grounds for exclusion under INA § 212(a). See 8 U.S.C. §
 We have recognized that “it is not uncommon for the 4

DHS to conceive of a single crime as qualifying both as a crime

involving moral turpitude and as an aggravated felony.” Park v.

Gonzales, No. 05-2054, slip op. at 14 (3d Cir. December 28,

2006). However, Park involved only the preliminary question

-14-

1182(a)(2)(A)(i). Our analysis, however, leads to a different

conclusion. 

2.

Section 237 of the INA, entitled “Deportable Aliens,”

lists the grounds upon which the Attorney General may order an

alien removed. It is in this context that courts look to an alien’s

underlying criminal conviction to determine whether it falls

within one of § 237's statutory grounds for removal. For

example, an alien will only be subject to removal under INA §

237(a)(2)(A)(iii) if it is determined that the crime for which he

was convicted is indeed an aggravated felony as that term is

defined in the INA. Likewise, before an alien can be removed

for a “crime involving moral turpitude,” INA § 237(a)(2)(A)(i),

the government must establish that the alien’s underlying

conviction does indeed constitute a crime involving moral

turpitude. It is in this context – i.e., determining whether an

alien’s underlying conviction qualifies as moral turpitude

thereby establishing removability – that some cases have held

that crimes like those for which Caroleo was convicted are

crimes involving moral turpitude. 

4
of the alien’s removability under INA § 237; § 212(c) relief

from removal, and the statutory counterpart requirement

thereunder, were not in issue. The analyses are different for

each of these provisions. 

-15-

The statutory counterpart requirement under § 212(c), on

the other hand, presents an entirely different question. In an

application for § 212(c) relief – i.e. a discretionary waiver of

removal, the alien’s removability has already been established

– i.e., it has already been determined that the underlying crime

for which he has been convicted falls within one of INA § 237's

grounds for removal. The relevant statutory counterpart inquiry

then looks – not to the underlying criminal conviction – but

rather to the statutory ground for removal contained in INA §

237 and whether it has a counterpart in the statutory ground for

exclusion provisions of INA § 212(a). Under this categorical

analysis, we compare the removal and exclusion provisions of

the INA to determine whether they are “substantially equivalent”

See Bedoya-Valencia v. INS, 6 F.3d 891, 894 (2d Cir.1993);

Campos v. INS, 961 F.2d 309, 313 n.6 (1st Cir.1992). If they

are, a statutory counterpart has been established. 

This distinction between the preliminary question of

removability under INA § 237 and the statutory counterpart

requirement for relief from removal under INA § 212(c) leads us

to conclude that Caroleo has not satisfied the statutory

counterpart requirement. Because while it is true that the

underlying crime of attempted murder can be characterized as
-16-

a crime involving moral turpitude for the purposes of

determining removability, see, e.g., Yousefi v. United States

INS, 260 F.3d 318, 326 (4th Cir. 2001), the statutory counterpart

prerequisite for § 212(c) relief from removal focuses, quite

differently, upon the statutory ground for removal – here an

aggravated felony “crime of violence.” Komarenko v. INS, 35

F.3d 432 (9th Cir. 1994). And, there is no authority challenging

the BIA’s direct holding in Matter of Brieva, 23 I&N Dec. 766

(BIA 2005) that the aggravated felony “crime of violence”

ground for removal is not a statutory counterpart of INA §

212(a)’s “crime involving moral turpitude.” 

In Komarenko, the court rejected an analysis very similar

to the one proposed by Caroleo. Komarenko was convicted of

assault with a deadly weapon in violation of California law and

sentenced to four years imprisonment. The INS commenced

removal proceedings against him for being an alien convicted of

the aggravated felony of a “firearms charge,” 8 U.S.C. §

1227(a)(2)(C). Komarenko conceded removability but sought

a waiver under § 212(c), arguing that his conviction for assault

with a deadly weapon had a statutory counterpart in INA §

212(a)’s “crime involving moral turpitude” ground for

exclusion. 

The court specifically rejected Komarenko’s claim that

the court must look to the particular facts of his crime, which, he

claimed, could be deemed a crime of moral turpitude. The court

held that it is the statutory ground for removal that must have a
-17-

“substantially identical” counterpart in the statutory grounds

for exclusion in order to qualify for section 212(c); the factual

basis of the underlying criminal activity is irrelevant. The court

explained that this conclusion follows directly from the equal

protection concerns that are the basis for the whole idea of a

“statutory counterpart”:

Generally, when courts have found an equal

protection violation, the excludability and

deportation provisions have been substantially

identical. That way, the only distinction between

the two classes of persons the statute created was

that one class of individuals had traveled abroad

and returned, and the other had not. It is this

arbitrary distinction that violates equal protection.

In the instant case, the provisions are entirely

dissimilar, and the distinction between the two

classes is not arbitrary or unreasonable.. . . For

this reason, the linchpin of the equal protection

analysis in this context is that the two provisions

be “substantially identical.”

Komarenko, 35 F.3d at 435. 

The court also addressed Komarenko’s argument that,

because his conviction for assault with a deadly weapon would

also have qualified him for exclusion under INA § 212(a)’s

crime involving moral turpitude ground, it would violate equal
-18-

protection to deny him § 212(c) relief from removal proceedings

predicated on the same underlying criminal activity. The court

rejected this argument, holding that the underlying criminal

activity was not relevant; what was important was the statutory

ground in the INA under which removal was sought. Whether

the underlying crime could also have been the basis for a

different ground for removal – one which does have a statutory

counterpart ground for exclusion – is entirely irrelevant.

Komarenko claims we must focus on the facts of

his individual case and conclude that because he

could have been excluded under the moral

turpitude provision, he has been denied equal

protection. We decline to speculate whether the

I.N.S. would have applied this broad excludability

provision to an alien in Komarenko's position.

Were we to do so, we would extend discretionary

review to every ground for deportation that could

constitute “the essential elements of a crime

involving moral turpitude.” 8 U.S.C. §

1182(a)(2)(A)(i)(II). Such judicial legislating

would vastly overstep our "limited scope of

judicial inquiry into immigration legislation,"

Fiallo v. Bell, 430 U.S. 787, 792, 52 L. Ed. 2d 50,

97 S. Ct. 1473 (1977); Francis, 532 F.2d at 272,

and would interfere with the broad enforcement

powers Congress has delegated to the Attorney

General, see 8 U.S.C. § 1103(a). We decline to
-19-

adopt a factual approach to our equal protection

analysis in the context of the deportation and

excludability provisions of the INA. 

Komarenko, 35 F.3d at 435 (emphasis added). 

Thus, it was irrelevant to the Komarenko court whether

the alien could have been removed under the moral turpitude

statutory ground for removal. The government had ordered

Komarenko removed for a firearms charge and the court

therefore was required to restrict its inquiry to the question

whether the removal category “firearms charge” is a statutory

counterpart of the moral turpitude ground for exclusion. The

court held that it was not. 

The same analysis was more recently applied in two cases

before the BIA, whose interpretation of the INA is entitled to

deference. See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S.

837, 844 (1984), Francois v. Gonzales, 448 F.3d 645, 648 (3d

Cir.2006). In Matter of Brieva, 23 I&N Dec. 766 (BIA 2005),

an alien was ordered removed under the “crime of violence”

aggravated felony provision after having been convicted under

state law for unauthorized use of a motor vehicle. The alien

appealed to the BIA on two grounds. First, the alien asserted

that unauthorized use of a motor vehicle was not a “crime of

violence” aggravated felony for which he could be removed.

Second, the alien argued that even if removable for committing

a crime of violence, he was entitled to § 212(c) relief because
-20-

“crime of violence” is a statutory counterpart of INA § 212(a)’s

“crime involving moral turpitude.” The BIA rejected both of

these arguments. The BIA first held that unauthorized use of a

motor vehicle qualifies as a crime of violence under the INA,

thereby making the alien removable as a result of his conviction

for that “aggravated felony.” Removability having been

established, the BIA then turned to the alien’s request for relief

under § 212(c). The BIA denied relief, holding that the crime of

violence ground for removal is not a statutory counterpart of

INA § 212(a)’s “crime involving moral turpitude” ground for

exclusion. 

The BIA held that, in deciding the question, the court

should look not to the underlying crime – i.e., unauthorized use

of a motor vehicle, but rather to the statutory ground for

removal:

In making the comparison in this case, the

relevant question is whether the "crime of

violence" aggravated felony ground, as defined in

section 101(a)(43)(F) of the Act, is substantially

equivalent to a ground of inadmissibility in

section 212(a) of the Act.

. . . . 

Although there need not be perfect symmetry in

order to find that a ground of removal has a

statutory counterpart in section 212(a), there must

be a closer match than that exhibited by the
-21-

incidental overlap between section 101(a)(43)(F)

(crime of violence) and section 212(a)(2)(A)(i)(I)

(crime involving moral turpitude). The distinctly

different terminology used to describe the two

categories of offenses and the significant variance

in the types of offenses covered by these two

provisions lead us to conclude that they are not

“statutory counterparts” for purposes of section

212(c) eligibility.

Matter of Brieva, 23 I. & N. Dec. 766, 773. 

The alien in Brieva also argued that, because he could

have been removed under the “theft offense” provision of the

INA, see 8 U.S.C. § 1101(a)(43)(G)(stating that the INA's

definition of “aggravated felony” includes “a theft offense . . .

for which the term of imprisonment [is] at least one year”), the

BIA should look to that ground as a basis for comparison to INA

§ 212(a)’s moral turpitude provision. The BIA rejected this

argument:

The respondent argues that his crime is a "theft

offense" for purposes of comparing the moral

turpitude ground of inadmissibility. However, the

respondent has not been charged with an

aggravated felony "theft offense." The

comparable ground test for section 212(c)

requires that the offense charged, i.e., "crime of
-22-

violence," have an analogous ground of

inadmissibility. Whether the respondent could be

found inadmissible for a "theft offense"

amounting to a crime of moral turpitude is not

relevant to the critical question whether the

"crime of violence" removal ground has a

comparable ground of inadmissibility. 

Id. at 772 n.4 (emphasis added). 

In Brieva, the BIA relied on In re Blake, 23 I. & N. Dec.

722 (BIA 2005), in which the BIA had held that the “sexual

abuse of a minor” aggravated felony ground for removal, see

INA § 101(a)(43)(A), is not a statutory counterpart of INA §

212(a)’s “crime involving moral turpitude” ground for

exclusion. In reaching this conclusion, the Blake Court noted

that, although some crimes constituting “sexual abuse of a

minor” may well constitute moral turpitude, this fact was not

determinative under the categorical approach:

As indicated by the approach taken in our

decisions in the firearms cases discussed above,

whether a ground of deportation or removal has a

statutory counterpart in the provisions for

exclusion or inadmissibility turns on whether

Congress has employed similar language to

describe substantially equivalent categories of

offenses. Although many firearms offenses may
Because we find that the crime of violence ground for 5

Caroleo’s removal has no statutory counterpart in INA § 212(a),

thus rendering him ineligible for relief under § 212(c), we do not

reach the question whether the second ground upon which the

government seeks to remove Caroleo – a “theft offense . . . or

burglary offense for which the term of imprisonment [is] at least

one year,” 8 U.S.C. § 1101(a)(43)(G) – has a statutory

counterpart in INA § 212(a). 

-23-

also be crimes of moral turpitude, the category of

firearms offenses is not a statutory counterpart to

crimes of moral turpitude. Similarly, although

there may be considerable overlap between

offenses categorized as sexual abuse of a minor

and those considered crimes of moral turpitude,

these two categories of offenses are not statutory

counterparts.

In re Blake, 23 I. & N. Dec. 722, 728. 

V.

In the present case, Caroleo was convicted in state court

of attempted murder, burglary, and unlawful possession of a

weapon for an unlawful purpose. Based upon the attempted

murder conviction, the government charged Caroleo with being

subject to removal under the “crime of violence” aggravated

felony ground contained in INA § 237. Caroleo does not 5
-24-

dispute that his attempted murder conviction is a crime of

violence under the INA; indeed, he concedes that he is

removable on that basis. 

Caroleo’s application for section 212(c) relief was

properly denied. Under Matter of Silva, 16 I. & N. Dec. 26

(BIA 1976) and subsequent authority, Caroleo is not entitled to

relief under § 212(c) unless the statutory basis for his removal

– i.e., crime of violence, has a statutory counterpart ground for

exclusion in INA § 212(a). As Komarenko, Brieva, and Blake

make clear, the underlying crime for which Caroleo was

convicted plays no role in this inquiry. It is therefore irrelevant

that Caroleo’s conviction for attempted murder could have

subjected him to removal as an alien convicted of a crime of

moral turpitude under INA § 237(a)(2)(A)(i). See, e.g., Yousefi,

260 F.3d at 326. Once the government has categorized his

offense as a “crime of violence” in removal proceedings, and

that categorization has been upheld, our § 212(c) inquiry focuses

on whether this statutory ground for removal is substantially

equivalent to any of the statutory grounds for exclusion

contained in INA § 212(a).

The BIA has held that the “crime of violence” aggravated

felony ground for removal under INA § 237 is not “substantially

equivalent” to INA § 212(a)’s “crime involving moral turpitude”

ground for exclusion such that the two can be considered

statutory counterparts. Brieva, 23 I. & N. Dec. at 773. 
-25-

We recognize the seeming illogic of a scheme under

which the crime of attempted murder may constitute a crime

involving moral turpitude rendering the alien removable, while

the same alien, if charged with being removable under INA §

237's aggravated felony “crime of violence” ground, is ineligible

for § 212(c) relief because a “crime of violence” is not a

statutory counterpart of a “crime involving moral turpitude.”

However, this is the result of an administratively engrafted

“statutory counterpart” requirement and its interpretation by the

BIA in Brieva and the Ninth Circuit in Komarenko, and we find

these authorities persuasive. Because we hold that Caroleo’s

conviction of attempted murder is an aggravated felony “crime

of violence” that has no statutory counterpart in a crime

involving moral turpitude we will deny Caroleo’s request for §

212(c) relief and thus his petition. 

WEIS, J., Concurring.

I concur in the denial of the petition of review. Although

I do not accept some portions of the majority opinion of my

distinguished colleagues, I agree that the dispositive issue is the

application of the comparability test, a policy adopted by the

immigration authorities.

Although the test has been used for some decades, it has

only recently been codified in a regulation. See 8 C.F.R.

§ 1003.44, 1212.3(f)(5) (effective Oct. 28, 2004). Briefly stated,

in order to qualify for a waiver under section 212(c) of the
-26-

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c),

the ground of deportation must have a counterpart in section

212(a).

The substance of the inquiry has been expressed in a

variety of ways, but the term “ground” has not been clearly

defined by the courts. In my view, the comparability should be

that between the grounds specified in INA section 237(a), 8

U.S.C. § 1227(a), and the grounds listed in section 212(a).

Therefore, the alien must first show that the underlying

conviction constitutes a deportable offense under section 237(a)

and then demonstrate the comparability of that ground with one

in section 212(a).

I agree with the majority that an aggravated felony crime

of violence has no statutory counterpart in section 212(a).

However, as we noted in Park v. Gonzales, No. 05-2054, 2006

WL 3821408, at *6 (3d Cir. December 28, 2006), a conviction

may be categorized as both an aggravated felony and one of

moral turpitude as those terms are used in the immigration law.

Where a conviction does so qualify, the counterpart test should

be applied to both the aggravated felony and moral turpitude

grounds for deportation in section 237(a).

Petitioner argues that his conviction was one of moral

turpitude that has an explicit counterpart in section 212(a).

Therefore, he contends that he is eligible for a discretionary

waiver under section 212(c). He thus would have the
The majority did not reach the question whether the 6

petitioner’s second ground of removal for a theft offense has a

statutory counterpart in INA section 212(a), but using the categorical

approach it would appear that the petitioner’s theft offense would also

constitute a crime of moral turpitude.

-27-

comparability exist between the underlying conviction and

section 212(a).

The petitioner’s argument is flawed. Assuming that the

conviction was for a crime of moral turpitude, the next and

crucial question is whether it was a ground of deportation under

section 237(a). I believe this case presents a situation where the

petitioner’s underlying conviction for attempted murder can be

both a crime of violence and moral turpitude.6

Although crimes of moral turpitude are often not ones

that allow for easy and specific definitions, attempted murder

fits neatly within the tests we formulated in DeLeon-Reynoso v.

Ashcroft, 293 F.3d 633 (3d Cir. 2002) and Partyka v. Attorney

General, 417 F.3d 408 (3d Cir. 2005). There we cited vileness,

depravity, and reprehensible acts deliberately committed as

characteristic of moral turpitude. See, e.g., Ascencio v. INS,

371 F.3d 614 (11th Cir. 1994) (BIA categorized attempted

murder as crime of moral turpitude).

That said, however, petitioner’s crimes do not constitute

deportation grounds for moral turpitude. INA
Subsection (iii) provides that an alien who is convicted of 7

two or more crimes involving moral turpitude not arising out of a

single scheme of criminal misconduct . . . is deportable. Because

both convictions in this case resulted from a single incident, that

provision is not applicable to this case.

-28-

§ 237(a)(2)(A)(i)(I) specifically states that “any alien who is

convicted of a crime involving moral turpitude committed

within five years . . . after the date of admission . . . is

deportable.” See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Because 7

petitioner committed the crimes here on a day more than five

years after originally being admitted to this country and has not

left the country and been readmitted during that time, his

convictions do not satisfy this provision.

Therefore, although petitioner committed crimes of moral

turpitude, the government had no authority to deport him on that

basis. His moral turpitude conviction could not be a “ground”

for deportation, and therefore the issue of comparability with

section 212(a) is simply not applicable.

Moreover, because he could not be deported on the

ground of moral turpitude, there is no need for petitioner to

obtain a waiver on that basis under section 212(c). In effect, he

has already received the substance of that benefit because the

moral turpitude deportation provision no longer applies to him

since five years had elapsed following his admission. In short,

he could not receive a waiver of deportation for a moral
-29-

turpitude conviction when the passage of time had already

prevented deportation.

I agree with the majority that, although petitioner has

asserted other substantial defenses, in the end the comparability

issue trumps those contentions.

Accordingly, I join in the denial of the petition for

review.