FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YEWHALASHET ABEBE, 

Petitioner, No. 05-76201

v. Agency No.  A026-810-941 ERIC H. HOLDER JR., Attorney

General, ORDER

Respondent. 

Filed August 18, 2009

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.

Order;

Dissent by Judge Berzon

ORDER

The petition for en banc panel rehearing and the petition for

full court rehearing en banc are denied. See Fed. R. App. P.

40; Fed. R. App. P. 35; Cir. R. 35-3.

11219
BERZON, Circuit Judge, with whom PREGERSON,

REINHARDT, THOMAS, WARDLAW, W. FLETCHER,

and PAEZ, Circuit Judges, join, dissenting from denial of full

court rehearing: 

The en banc majority opinion in this case reverses a thirty

year old precedent; does so in answer to a question not raised

or briefed by either party; comes to a conclusion in conflict

with that of the Attorney General and the rule applied in every

circuit, as well as in conflict with the necessary assumption of

a Supreme Court case, INS v. St. Cyr, 533 U.S. 289 (2001);

and in doing so distorts the fundamental premises of equal

protection law. Moreover, there was no reason whatsoever to

embark on this ill-fated adventure, as the concurrence joined

by three members of the en banc court persuasively shows. 

Although this court has never held a full court en banc, the

partial court en banc process depends upon en banc panels

sticking to issues appropriately before them and taking heed

of the ramifications of their decisions for broad, unrelated

areas of law. Here the bare panel majority did neither. If ever

a case merited full court en banc consideration, this one did.

I. BACKGROUND

In his deportation proceeding, Abebe, a lawful permanent

resident (“LPR”), argued that he was eligible for discretionary

relief from deportation, invoking the now-repealed INA

§ 212(c), which provided that “[a]liens lawfully admitted for

permanent residence who temporarily proceeded abroad voluntarily . . . 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 excludable

aliens)].” Immigration and Naturalization Act, 8 U.S.C.

§ 1182(c) (repealed 1996). Although § 212(c) by its terms

applied only to LPRs in exclusion proceedings, “through a

decades-long series of administrative and judicial decisions,

11220 ABEBE v. HOLDER
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.” Abebe v. Gonzales, 493 F.3d 1092, 1095 (9th

Cir. 2007). And, under the Supreme Court’s decision in St.

Cyr, even though § 212(c) was repealed in 1996, relief

remains available to aliens who pled guilty prior to the effective date of the repeal and who “would have been eligible for

§ 212(c) relief at the time of their plea under the law then in

effect.” 533 U.S. at 326.

The Abebe three-judge panel of which I was a member held

that in Abebe’s particular circumstances, a recent agency regulation validly precluded relief. See 8 C.F.R. § 1212.3(f)(5).

I concurred on the ground that Komarenko v. INS, 35 F.3d

432 (9th Cir. 1994), precluded the contrary conclusion, but

urged en banc consideration of Komarenko. The court then

decided to hear the case en banc, presumably to consider the

continued viability of Komarenko.

I continue to believe that Komarenko was wrongly decided,

as Judge Thomas’s en banc dissent explains, and should be

overruled. Abebe v. Mukasey, 554 F.3d 1203, 1217-1218 (9th

Cir. 2009) (Thomas, J., dissenting). For present purposes,

however, the dispute over whether Komarenko was rightly or

wrongly decided doesn’t matter, because what the en banc

court ultimately addressed was an entirely different question.1

A six-judge majority of the en banc panel sidestepped the

Komarenko question altogether and instead overruled a prior

opinion, Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.

1981), the validity of which Komarenko assumed. See Abebe,

554 F.3d at 1207. Yet, no party to the case had suggested this

course, and there was no briefing on it.2

1

Judge Clifton’s concurrence and Judge Thomas’s dissent in the en banc

panel decision set out the parameters of the Komarenko issue. 

2The subject of Tapia-Acuna’s validity was discussed only briefly at

oral argument. At approximately the thirty-five minute mark, Chief Judge

ABEBE v. HOLDER 11221
Overruling Tapia-Acuna was not only a bolt from the blue,

it was entirely unnecessary to the result the majority reached

(as Judge Clifton’s concurrence shows), and was based on a

fundamental misunderstanding of Tapia-Acuna’s holding.

Even more disturbing, the en banc majority’s overruling of a

nearly thirty-year-old precedent does not resolve the equal

protection issue before the three-judge panel and the en banc

court in this case, and, by pretending that it does, clashes

resoundingly with Supreme Court and Ninth Circuit case law.

To illustrate this last, supervening problem: Imagine Abebe

is in one courtroom in Immigration Court, and another LPR

— let’s call him Joe — is in a courtroom down the hall. Years

earlier, both Abebe and Joe were convicted of the same crime

in the same state court. The Department of Homeland Security (DHS) now wants to remove both of them on the basis of

their state convictions. It charges Joe with deportability3 on a

ground that would also make him inadmissible (say, the

ground of having been convicted of a crime involving moral

turpitude), whereas it charges Abebe with deportability on a

ground that would not make him inadmissible (say, the

ground of having been convicted of an aggravated felony).

Both Abebe and Joe seek to apply for relief from removal

under the former INA § 212(c). Following the “statutory

Kozinski asked Respondent’s counsel, “Is it correct to say that if TapiaAcuna were overruled, if it weren’t on the books, the Komarenko problem

would drop out altogether?” Respondent’s counsel answered, “I think

that’s right. I think that’s right.” When Judge Callahan asked Respondent’s counsel to clarify his answer, he stated, “Well, certainly you don’t

need to overrule it. Arguably, you could clarify it and say that we think

Komarenko was correctly decided, because Komarenko of course was

based on the validity of Tapia-Acuna, so the Court I suppose could clarify

Tapia-Acuna if it wished. But certainly it does not need to overrule

[Tapia-Acuna].” Respondent’s counsel never argued that Tapia-Acuna

should be overruled. 

3Following the en banc majority’s usage, see Abebe, 554 F.3d at 1205,

n.3, I use the terms “deportability” and “removability,” and the terms “excludability” and “inadmissibility,” interchangeably throughout this opinion. 

11222 ABEBE v. HOLDER
counterpart” rule, codified at 8 C.F.R. § 1212.3(f)(5), the

Immigration Judge (IJ) rules that Joe is eligible to apply for

such relief because his charged ground has a statutory counterpart in inadmissibility. Following the same regulation, the

IJ in Abebe’s case, down the hall, rules that Abebe is not eligible to apply for relief and orders him removed. 

Abebe then comes to us — as he in fact did — to complain

that he’s been denied equal protection of the laws, because the

class of deportable LPRs to which he belongs — those who

are charged with grounds of deportability that have no statutory counterpart in inadmissibility — is treated differently

from another class of deportable LPRs — those charged with

grounds of deportability that would make them inadmissible,

even when both are being deported for committing the same

offense. This classification is irrational, says Abebe, so the

DHS has to treat me the same as it treated Joe. 

What does the majority opinion say in response? Abebe, it

says, you have no complaint, because both you and Joe should

have been — or at least could have been — deported. DHS

doesn’t have to make § 212(c) relief available to any deportable aliens; we erred thirty years ago in Tapia-Acuna when

we said that it did.

That answer both misapprehends and is wholly unresponsive to Abebe’s equal protection claim. The core of equal protection law is classification, not entitlement. That neither

Abebe nor Joe may be entitled to apply for § 212(c) relief

does not change the fact that the government applied a policy

classifying Joe as eligible and Abebe as ineligible, and proposes to throw Abebe but not Joe out of this country. That

policy either violates equal protection, or it doesn’t. Overruling Tapia-Acuna does not tell us whether Abebe’s constitutional right to equal protection was violated, it just distorts

equal protection law.

ABEBE v. HOLDER 11223
II. TAPIA-ACUNA

Again, in overruling Tapia-Acuna, the en banc panel

decided a question that was never briefed or argued by either

party. The panel did not call for briefs on the question, and it

was mentioned in oral argument only in passing. To decide a

question that involves overruling a nearly thirty-year-old

opinion of this Court — concurred in by the agency and consistent with the law of the only other circuit to have considered the question — without providing notice to the parties

that such a question is in play and without soliciting their

positions, is both unprecedented and inconsistent with the

goal of informed decisionmaking toward which we strive. 

The resulting opinion demonstrates that there is good reason why en banc panels — or any panels — don’t usually

destroy foundational decisions with no input from the parties.

The en banc majority characterizes Tapia-Acuna as holding

“that there’s no rational basis for providing section 212(c)

relief from inadmissibility, but not deportation.” Abebe, 554

F.3d at 1207. The majority suggests it was Tapia-Acuna and

its Second Circuit counterpart, Francis v. INS, 532 F.2d 268

(2d Cir. 1976), that forced the agency to extend § 212(c) relief

to aliens in deportation proceedings in the first place. Id. at

1205. 

Not so. In fact, the agency had been extending § 212(c)

relief to aliens in deportation proceedings for decades before

Francis and Tapia-Acuna were decided. In 1940, the Attorney

General held that the Seventh Proviso of the 1917 Immigration Act permitted him to grant nunc pro tunc deportation

waivers to LPRs who had traveled abroad and been readmitted, but who were subsequently placed in deportation proceedings because of a conviction that could have been the

basis for an inadmissibility charge. Matter of L-, 1 I. & N.

Dec. 1 (AG 1940). Although the Immigration and Nationality

Act of 1952 replaced the Seventh Proviso with the slightly

differently worded INA § 212(c), the Attorney General held

11224 ABEBE v. HOLDER
in 1955 that Congress intended § 212(c) relief to be available

to LPRs in deportation proceedings, just as the Seventh Proviso had been. Matter of S-, 6 I. & N. Dec. 392 (BIA 1954,

AG 1955). 

Thus, by the time the Second Circuit decided Francis in

1976, it was settled agency interpretation that § 212(c) relief

was available to certain LPRs in deportation proceedings —

i.e., those who had traveled abroad after their conviction,

were readmitted without being charged with inadmissibility,

and were later placed in deportation proceedings. Francis did

not question the agency’s statutory authorization to grant

§ 212(c) relief nunc pro tunc to LPRs in deportation proceedings. Instead, it held that, if the agency did so, the equal protection component of the Fifth Amendment required that

relief also be available to LPRs who had not traveled abroad

prior to being placed in deportation proceedings, ruling that

there is no rational basis to discriminate between LPRs in

deportation proceedings who had previously traveled abroad

and LPRs in deportation proceedings who had not.

Later that same year, in Matter of Silva, 16 I. & N. Dec. 26

(BIA 1976), the BIA acquiesced in Francis in all circuits

except ours, where contrary precedent was controlling. See

Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir. 1972). Several

years later, in Tapia-Acuna, we overruled Arias-Uribe and,

following the Second Circuit’s position in Francis and the

BIA’s acquiescing opinion in Silva, held that aliens in deportation proceedings who had traveled abroad and aliens in

deportation proceedings who had not traveled abroad must be

treated the same so long as they are otherwise similarly situated. In other words, Tapia-Acuna just brought us into line

with the law as applied by the then-INS and in the all other

circuits. 

The majority, ignoring this evolution, provides a superficial

explanation of why Congress might rationally have limited

§ 212(c) relief to admitted aliens: It might have wanted to

ABEBE v. HOLDER 11225
“create an incentive for deportable aliens to leave the country[,]” because the relief available upon reentry would be

broader than that available in deportation proceedings, and

thus, “[b]y encouraging such self-deportation, the government

could save resources it would otherwise devote to arresting

and deporting these aliens.” Abebe, 554 F.3d at 1206. But

Tapia-Acuna does not involve the comparison of (1) LPRs in

deportation proceedings who are currently inside the country

with (2) LPRs in exclusion proceedings who are currently at

a port of entry and hoping to be readmitted, as the Abebe

majority assumes. Rather, Tapia-Acuna involves the comparison of (3) LPRs in deportation proceedings who had previously departed and returned to the United States with (4)

LPRs in deportation proceedings who have not left the United

States since their conviction. As Judge Thomas’s en banc dissent persuasively argues, the hypothetical cost-saving rationale that the majority suggests might have motivated

Congress’s differential treatment of aliens in classes (1) and

(2) does not pass even the most lenient rational-basis scrutiny,

when one recognizes that it is in fact aliens in classes (3) and

(4) that Tapia-Acuna is comparing, both of whom are in

deportation proceedings inside the United States, and both of

whom the government has had to expend resources to apprehend. Id. at 1215-16 (Thomas, J., dissenting).

The upshot is that even if the en banc majority had been

deciding a question properly before it, it decided it incorrectly. Moreover, the en banc majority was obliged to square

its holding with the Supreme Court’s decision in St. Cyr,

which it does not do. St. Cyr simply makes no sense if the

majority opinion in this case is right. 

In St. Cyr, the Supreme Court held that although Congress

repealed § 212(c) when it enacted the Illegal Immigration

Reform and Immigrant Responsibility Act (“IIRIRA”) in

1996, § 212(c) relief must remain available to LPRs whose

plea agreements were entered before IIRIRA went into effect,

because retroactive application of the amendment would

11226 ABEBE v. HOLDER
impermissibly upset the reasonable reliance of aliens who

pled guilty to crimes under the pre-IIRIRA regime. St. Cyr,

533 U.S. at 323-24 (quoting Landgraf v. USI Film Prod., 511

U.S. 244, 270 (1994)). Importantly for present purposes, the

petitioner in St. Cyr was in deportation proceedings, not

exclusion proceedings, id. at 293, yet the Court did not consider that fact an obstacle to his eligibility to § 212(c) relief.

Before reaching the merits of St. Cyr’s retroactivity argument,

the Supreme Court recounted the legislative history of

§ 212(c) and cited Matter of Silva, the BIA opinion in which

the agency acquiesced in the very equal protection analysis

that the en banc majority in this case has thrown overboard,

for the understanding that § 212(c) relief was available:

Like [the Seventh Proviso], § 212(c) was literally

applicable only to exclusion proceedings, but it too

has been interpreted by the Board of Immigration

Appeals (BIA) to authorize any permanent resident

alien with ‘a lawful unrelinquished domicile of

seven consecutive years’ to apply for a discretionary

waiver from deportation. See Matter of Silva, 16 I.

& N. Dec. 26, 30 (1976) (adopting position of Francis v. INS, 532 F.2d 268 (C.A.2 1976)).

St. Cyr, 533 U.S. at 295. St. Cyr did not question this reading

of § 212(c). Instead, it proceeded on the understanding that

§ 212(c) relief was available in both deportation and exclusion proceedings, necessarily assuming that, as Silva and

Francis had ruled, there was no rational basis to distinguish

between LPRs in deportation proceedings who had traveled

abroad and those who had not.

The en banc majority’s decision to overrule Tapia-Acuna

(this Circuit’s counterpart to Francis v. INS) and implicitly to

invalidate the regulation allowing § 212(c) to be administered

to LPRs in deportation proceedings thus undermines the first

premise of St. Cyr. Indeed, the en banc majority in this case

would seem to revive the very unfairness rectified in St. Cyr

ABEBE v. HOLDER 11227
— namely, making deportable aliens who relied on the agency’s practice with regard to granting waivers from deportation

by pleading guilty to crimes from which they might have

received waivers under § 212(c) relief under the applicable

law at the time they pled. Now, those aliens are back in the

same position, because the basis for granting them a waiver

from deportation has been torn to shreds — with notice to no

one — by the en banc majority in this case. 

III. EQUAL PROTECTION

But — while bad enough — that’s not the worst of what the

en banc majority has done. It decides a question that not only

was not raised, but that has nothing to do with settling the

equal protection challenge that was raised. 

The first step in an equal protection analysis is to determine

what classification has been applied to the petitioner. As the

forgoing discussion shows, Abebe’s status as a deportable

alien and his prior travel history are utterly beside the point

in deciding whether he was denied equal protection of the

law, as those two classifications had nothing to do with why

the agency held him ineligible. Instead, the BIA held Abebe

ineligible for § 212(c) relief because he fell on the wrong side

of the agency’s statutory counterpart rule. Under that rule, as

between deportable aliens who have not left the United States,

the agency will not remove those charged with removal based

on a statutory ground that has an exclusion counterpart, but

will remove those charged with a removable ground with no

such counterpart — even if both committed the same crime.

We explained in Servin-Espinoza v. Ashcroft, 309 F.3d

1193 (9th Cir. 2002), applying Allegheny Pittsburgh Coal Co.

v. County Comm’n of Webster County, 488 U.S. 336 (1989),

that when confronted with an equal protection challenge to an

administrative policy, we must analyze the rationality of the

classification the agency is actually making and applying to

the petitioner, not the rule the governing statute establishes, if

11228 ABEBE v. HOLDER
the two are different. Cf. Yick Wo v. Hopkins, 118 U.S. 356,

373-74 (1886) (“Though the law itself be fair on its face, and

impartial in appearance, yet, if it is applied and administered

by public authority . . . so as practically to make unjust and

illegal discriminations between persons in similar circumstances . . . the denial of equal justice is still within the prohibition of the [C]onstitution.”); McQueary v. Blodgett, 924

F.2d 829, 835 (9th Cir. 1991) (“To conclude that the relevant

Washington sentencing law is evenhandedly applicable does

not entirely dispose of the matter, however. The equal protection clause also requires that the law be evenhanded as actually applied.“) (emphases in original).

Servin-Espinoza involved “an equal protection challenge to

an administrative policy that violated a statutory command.”

309 F.3d at 1197.4 The government argued that, because the

governing statute created a classification that was supportable

on rational basis review and that would have rendered the

petitioner ineligible for the benefit he sought, no equal protection violation had occurred. Id. at 1196. Servin-Espinoza held

that the rationality of the statute’s classification was beside

the point, because it was not the statute’s classification that

had been applied to the petitioner to deny him the benefit, but

4Coincidentally, the administrative policy at issue in Servin-Espinoza

was also related to the provision of § 212(c) relief. Servin-Espinoza

addressed the narrow question whether the INS violated equal protection

when it denied § 212(c) relief to deportees during the window of time

between the BIA’s decision in In re Fuentes-Campos, 21 I. & N. Dec. 905

(BIA 1997) (which held that AEDPA § 440(d), which barred § 212(c)

relief, operated against LPRs in deportation proceedings but not those in

exclusion proceedings) and our decision in United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. 1999) (which held that the BIA’s interpretation in Fuentes-Campos was contrary to the meaning of the statute).

I do not cite Servin-Espinoza for its substantive § 212(c) holding, however, or even for its proposition that a more demanding variant of rational

basis review might apply to an administrative policy in violation of a statutory command. Rather, I cite it only for the manner in which it went

about identifying the relevant classification to which equal protection

analysis had to be applied. 

ABEBE v. HOLDER 11229
rather a different classification fashioned by administrative

policy. Following the Supreme Court’s analysis in Allegheny

Pittsburgh, which similarly considered an equal protection

challenge to a tax assessment policy that violated a state tax

law, see 488 U.S. at 346, Servin-Espinoza directed its equal

protection inquiry at the classification the agency had actually

applied to the petitioner.5

Applying that common-sense understanding here clarifies

where the en banc majority went fundamentally wrong.

Abebe’s argument is that the agency’s application of its statutory counterpart rule violated his equal protection rights. He

does not complain of the statute’s apparent classification of

LPRs in exclusion proceedings as eligible and those in deportation proceedings as ineligible (a classification the agency

has ignored for decades). Nor does he complain of the agency’s former rule that deportees were eligible for § 212(c)

waivers only if they had previously traveled abroad (a rule

invalidated by Francis and Tapia-Acuna, and renounced by

the agency in Matter of Silva). And no wonder — neither of

these rules was applied to him. Thus, the en banc majority’s

overruling of Tapia-Acuna does nothing to resolve Abebe’s

equal protection challenge one way or the other, because the

5That is not to say, of course, that an alien who is simply denied a benefit for a reason that is in violation of statutory authority necessarily has an

equal protection claim. What we have here is an agency policy formally

enunciated and consistently and long-applied, approved in BIA case law

and embodied in a formally promulgated regulation. See Servin-Espinoza,

309 F.3d at 1198 (noting that the INS policy was a proper focus for equal

protection analysis because it “systematically favored excludables over

deportables. This difference in treatment was not isolated or sporadic [but]

. . . based on a policy formally announced . . . [by the BIA] and consistently followed [by the agency] . . . .”) (citation omitted); compare Chan

v. Reno, 113 F.3d 1068, 1074 (9th Cir. 1997) (rejecting equal protection

challenge based on the allegation that the INS treated another alien more

favorably than the petitioner because “[a]ny other conclusion would create

an absurd result: whenever the INS granted an alien relief to which he was

not entitled, any future attempts to apply the law correctly would generate

an equal protection claim.”). 

11230 ABEBE v. HOLDER
classification Tapia-Acuna held to be invalid was simply not

the distinction applied to Abebe to make him ineligible for

relief. 

Put another way, what the majority’s approach misses is

that the core of the equal protection right is “the denial of

equal treatment resulting from the imposition of the barrier,

not the ultimate inability to obtain the benefit.” Northeastern

Fla. Chapter of Associated Gen. Contractors of Am. v. City

of Jacksonville, 508 U.S. 656, 666 (1993). “When the government erects a barrier that makes it more difficult for members

of one group to obtain a benefit than it is for members of

another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained

the benefit but for the barrier . . . .” Id.; see also Turner v.

Fouche, 396 U.S. 346, 362 (1970) (“We may assume that the

[plaintiffs] have no right to be appointed to the . . . board of

education. But [they] do have a federal constitutional right to

be considered for public service without the burden of invidiously discriminatory disqualifications”). Whether Abebe was

entitled to § 212(c) relief as a person in deportation rather

than exclusion proceedings is thus entirely irrelevant to his

core equal protection challenge.

Once we have isolated the proper focus of the equal protection analysis, it becomes clear that there is no avoiding the

Komarenko question. Either there is a rational basis for the

statutory counterpart classification — the classification actually applied — or there is not. 

Perhaps recognizing that overruling Tapia-Acuna doesn’t

get it where it needs to go, the en banc opinion attempts to

obviate the need for an equal protection analysis altogether,

by stating that “[u]nder its plain language, section 212(c)

gives the Attorney General discretion to grant lawful permanent residents relief only from inadmissibility—not deportation.” Abebe, 554 F.3d at 1205. It then reasons that “[s]ince

petitioner was not eligible for section 212(c) relief in the first

ABEBE v. HOLDER 11231
place, the BIA could not have committed an equal protection

violation by denying him such relief.” Id. at 1207. 

That leap is simply wrong, as should be apparent by now.

Again, equal protection law is concerned with equal treatment, not with entitlement. If a governmental agency misinterpreted a statute to require that all schoolchildren be given

$5.00 — or if a court mistakenly held that the Constitution

required that all schoolchildren be given $5.00 — but the

agency then gave the $5.00 only to white children, not to

blacks or Asians, it would be no answer to the equal protection claim by black or Asian children that neither they nor the

white children were entitled to the $5.00 in the first place.

Similarly, if, as here, there is a regularly applied, official

administrative policy conferring eligibility for § 212(c) relief

on one group of deportees but not another, that policy is not

exempt from the equal protection clause’s strictures because

the agency misconstrued the statute, or because the equal protection analysis that generated the agency’s approach to

applying the statute was wrong. Either way, the on-the-ground

result was based on a second-level classification, which was

the one actually applied to Abebe, and which either is or is

not an irrational classification of similarly situated LPRs. The

lack of entitlement might become relevant at the remedy

stage, but it is not relevant at the violation stage.6

Pertinent to any remedy stage is the majority’s suggestion

that its decision might prompt the agency “to reconsider [8

C.F.R. § 1212.3(f)(5)], and eventually repeal it,” thus ceasing

6The majority later maintains that, plain language notwithstanding,

“[t]he INS may certainly choose to treat different classes of aliens the

same, even though the statute does not.” Abebe, 554 F.3d at 1207. That

is not right either, as an agency has the discretion to act only within the

boundaries allowed by its governing statute. See Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 208 (1988). If providing relief to deportees is

foreclosed by the plain language of the statute, the agency may not elect

to do otherwise. It could, however, be required to do so as a matter of constitutional mandate — which is exactly what happened in Francis. 

11232 ABEBE v. HOLDER
to offer § 212(c) waivers to all deportees. Id. There are two

problems with this suggestion as a solution to the real equal

protection problem raised here, both of which stem from the

fact that providing § 212(c) relief to deportees is longestablished agency policy. 

First, as Servin-Espinoza explained, again relying on the

Supreme Court’s holding in Allegheny Pittsburgh, an agency’s perfectly proper change of policy going forward does not

in any way mitigate a past equal protection violation, or provide a remedy for it. See Servin-Espinoza, 309 F.3d at 1199

(“In this case, as in Allegheny Pittsburgh, the proper remedy

under the equal protection guarantee is to provide equality of

treatment. Because we cannot turn back the hands of time and

erase the favorable treatment of excludable aliens, the only

feasible way to remedy the discrimination suffered by Servin-Espinoza is to grant him the same opportunity to apply for

§ 212(c) relief that was systematically granted to [similarly

situated] excludable aliens . . . .”). So, if the majority had

decided that Komarenko erroneously approved an impermissibly irrational classification, the only proper relief would have

been to direct the agency not to deport Abebe and allow him

the opportunity to apply for § 212(c) relief.

Second, if the agency takes up the majority’s invitation and

precludes relief in the future to all deportees, we could have

a second St. Cyr on our hands. St. Cyr held that a legislative

change — the passage of the 1996 Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA), repealing the former § 212(c) — could not apply retroactively to

deny relief to LPRs who entered guilty pleas prior to

IIRIRA’s passage, because such retroactive application would

“clearly attach[ ] a new disability[ ] in respect to transactions

or considerations already past.” 533 U.S. at 321 (internal quotation omitted). St. Cyr thus mandated that § 212(c) relief

remain available for LPRs who entered guilty pleas, just as it

was available prior to IIRIRA and/or AEDPA. On St. Cyr’s

logic, a repeal of the agency’s longstanding policy making

ABEBE v. HOLDER 11233
relief available to deportees would quite possibly fare no better on a retroactivity analysis, at least as applied to those who

were convicted via guilty plea (as was Abebe).

And what if the agency declines the invitation, and continues to apply the statutory counterpart rule and the corresponding regulation as it is currently written? If that happens, we

will have to decide the viability of Komarenko all over again,

because the en banc majority opinion has not decided whether

the statutory counterpart rule actually applied and embodied

in 8 C.F.R § 1212.3(f)(5) complies with equal protection. 

So, all in all, the majority opinion not only fails to resolve

the case before it, but also fails to set an intelligible rule for

future cases. Worst of all, the majority opinion makes a hash

of equal protection law generally for the future, by allowing

courts to consider what the government’s classification policy

should be, rather than what it is, when addressing an equal

protection claim.

The bottom line is that there is simply no escaping the

Komarenko question. If the en banc panel was determined to

deny Abebe’s petition for review, it should have done so by

upholding the statutory counterpart rule, affirming

Komarenko without questioning the validity of Tapia-Acuna,

as the concurrence would have done. 

IV. CONCLUSION

Among the ultimate goals of the en banc process are ensuring the coherence of our case law, its consistency with

Supreme Court law, and, when possible, its agreement with

that of the other circuits. With its overruling of Tapia-Acuna

and its implicit invalidation of a federal regulation, the en

banc majority in Abebe v. Mukasey has advanced none of

these goals. Instead, it has casually overturned nearly thirty

years of our own case law and an even longer period of settled

agency interpretation, throwing future agency practice into

11234 ABEBE v. HOLDER
uncertainty. It has created a conflict with the only other circuit

court to have considered the question directly, see Francis,

532 F.2d 268, with the law actually applied by the agency and

by every other circuit, and with the underpinnings of the

Supreme Court’s decision in St. Cyr. More broadly, the distorted analysis of Abebe’s equal protection claim threatens

our most basic understandings of equal protection law, with

ramifications for cases in entirely different substantive areas.

For all these reasons, I respectfully dissent from the decision not to reconsider this indefensible opinion in a full court

en banc. 

ABEBE v. HOLDER 11235


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