In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2607

MICHAEL FREDERICK,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A012-464-579

ARGUED FEBRUARY 23, 2010—DECIDED MAY 3, 2011

Before BAUER, POSNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Michael Frederick was born in

Germany in 1957 and came to the United States at age

four with his mother and sister. They were admitted

as lawful permanent residents, and Frederick has

remained in the United States since his admission in

1961. In 1990 he pleaded guilty in Illinois state court to

two counts of aggravated sexual abuse of a minor. The
2 No. 09-2607

charges involved two victims and were issued in

separate cases, and Frederick was sentenced to concurrent four-year prison terms in each case. He served

these sentences and was discharged from parole in 1993.

For a long time he suffered no immigration consequences as a result of his convictions.

Fourteen years later, the Department of Homeland

Security issued a Notice to Appear charging that

Frederick was removable from the United States as an

alien convicted of an aggravated felony relating to

sexual abuse of a minor. See 8 U.S.C. § 1101(a)(43)(A).

Frederick applied for a statutory waiver of removal

under § 212(c) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1182(c). An immigration judge

found him ineligible for § 212(c) relief because the crime

that made him removable—an aggravated felony

involving sexual abuse of a minor—has no statutory

counterpart or comparable ground for inadmissibility

under § 212(a) of the INA. The Board of Immigration

Appeals dismissed Frederick’s appeal, and he petitioned this court for review.

We deny the petition. We have previously held that an

aggravated felony involving sexual abuse of a minor has

no statutory counterpart to a ground of inadmissibility

under § 212(a) of the INA. See Zamora-Mallari v. Mukasey,

514 F.3d 679, 692-93 (7th Cir. 2008). The BIA properly concluded that under Zamora-Mallari, Frederick is

ineligible for § 212(c) relief. The “statutory counterpart”

rule for § 212(c) eligibility is codified in 8 C.F.R.

§ 1212.3(f)(5) and well-established in BIA and circuit
No. 09-2607 3

precedent. That Frederick was convicted of two crimes of

sexual abuse of a minor does not change the application

of the rule.

I. Background

In 1961 four-year-old Michael Frederick, a native and

citizen of Germany, immigrated to the United States with

his mother and sister and became a lawful permanent

resident. In 1989 he was charged in Christian County,

Illinois, with two counts of aggravated criminal sexual

abuse of a minor. One of the two victims was his stepdaughter. In 1990 Frederick pleaded guilty to both counts

and was sentenced to two four-year terms of imprisonment; the sentences were ordered to run concurrently.

He served about a year in prison, was paroled, and successfully completed parole supervision in August 1993.

On October 15, 2007, DHS filed a Notice to Appear

charging Frederick with removability pursuant to INA

§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien

convicted of an aggravated felony relating to the sexual

abuse of a minor. See INA § 101(a)(43)(A), 8 U.S.C.

§ 1101(a)(43)(A) (defining “aggravated felony” to include sexual abuse of a minor). Frederick contested

removability by denying that he had been convicted of

sexual abuse of a minor; he also filed an application

for relief under former § 212(c) of the INA—a provision

that permitted the Attorney General, in his discretion, to

“waive” inadmissibility.

An immigration judge found Frederick removable as

charged, denied his application for § 212(c) relief, and
4 No. 09-2607

ordered him removed to Germany. The judge first held

that DHS had established Frederick’s removability

under 8 U.S.C. § 1227(a)(2)(A)(iii) by clear and convincing

evidence—specifically, the two charging documents in

the criminal cases against him, his jury waiver, and the

state-court records of conviction for two counts of aggravated criminal sexual abuse. Then, relying on the

BIA’s decision in Matter of Blake, 23 I. & N. Dec. 722 (B.I.A.

2005), and this court’s decision in Valere v. Gonzales,

473 F.3d 757 (7th Cir. 2007), the judge found Frederick

ineligible for § 212(c) relief because sexual abuse of a

minor has no comparable ground of inadmissibility

under § 212(a) of the INA.

Frederick appealed the immigration judge’s decision

to the BIA. The BIA dismissed the appeal, agreeing that

Frederick was ineligible for a § 212(c) waiver in light of

Blake and Zamora-Mallari v. Mukasey, 514 F.3d 679, both

of which held that an aggravated felony involving

sexual abuse of a minor has no statutory counterpart in

a ground of inadmissibility under § 212(a) of the INA.

The BIA also cited Zamora-Mallari for the proposition

that the regulation codifying the “statutory counterpart”

test did not establish a new rule and therefore was not

impermissibly retroactive. The BIA noted as well that the

immigration judge had properly “rejected a number of

other arguments presented [by Frederick], including

those relating to equal protection and due process.”

Finally, the BIA held that the statutory-counterpart rule

articulated in Blake did not violate I.N.S. v. St. Cyr, 533

U.S. 289 (2001). Frederick petitioned this court for

review challenging the BIA’s determination that he is

ineligible for § 212(c) relief.
No. 09-2607 5

Before 1996 the INA contained a separate provision for 1

waiver of deportation (now removal), see INA § 244, 8 U.S.C.

§ 1254(a)(1) & (2) (repealed 1996), but the requirements of a

§ 244 waiver were more stringent than those of a § 212(c)

waiver. Therefore, deportable aliens found a § 212(c) waiver

of inadmissibility to be a more hospitable route to relief than a

§ 244 waiver of deportation. See Zamora-Mallari v. Mukasey,

514 F.3d 679, 684 (7th Cir. 2008).

II. Discussion

We have previously described the lengthy and complex

history of former § 212(c) of the INA, see Zamora-Mallari,

514 F.3d at 683-89; Valere, 473 F.3d at 759-61, and repeat

that history only as necessary to decide this case. Until

1996 the Attorney General had discretion to readmit

resident aliens who traveled abroad and upon reentry

were found to be inadmissible under one of the grounds

of inadmissibility contained in INA § 212(a), 8 U.S.C.

§ 1182(a). This discretionary authority to waive inadmissibility was conferred by the former § 212(c) of the

INA, 8 U.S.C. § 1182(c) (1994), which by its terms

applied only to exclusion proceedings—that is, to cases

in which resident aliens traveled abroad and were

excludable upon reentry. However, § 212(c) has been

interpreted to apply to removal proceedings as well—

provided the removable alien is similarly situated to

a returning, excludable alien. See Matter of Silva, 16 I. & N.

Dec. 26, 30 (1976) (adopting the standard of Francis v.

I.N.S., 532 F.2d 268 (2d Cir. 1976)); Zamora-Mallari, 514

F.3d at 684-85; Valere, 473 F.3d at 759-60. This expansion

1

of § 212(c) eligibility flowed from the Second Circuit’s
6 No. 09-2607

Before IIRIRA repealed § 212(c) altogether in 1996, Congress 2

had excluded from that section’s purview aggravated felons

who had served five or more years in prison, see Immigration

Act of 1990, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052,

and later eliminated § 212(c) waivers for all aggravated

(continued...)

holding in Francis that there is “no rational basis for

making § 212(c) relief available only to inadmissible

aliens seeking reentry and not to similarly situated

deportable aliens who had not left the country.” Valere,

473 F.3d at 760 (summarizing the holding in Francis).

After the Second Circuit’s equal-protection ruling in

Francis, a removable alien is eligible for a § 212(c) waiver

if the ground for removability has a statutory counterpart or comparable ground of inadmissibility under

§ 212(a). Zamora-Mallari, 514 F.3d at 685-86; Valere, 473

F.3d at 760; Leal-Rodriguez v. I.N.S., 990 F.2d 939, 949

(7th Cir. 1993). Conversely, aliens removable on a

ground for which there is no comparable ground of

inadmissibility are not similarly situated to inadmissible reentering aliens and therefore are not eligible for

§ 212(c) relief. This has come to be known as the “statutory counterpart” or the “comparable ground” rule.

In 1996 Congress repealed § 212(c) altogether, replacing

it with the narrower 8 U.S.C. § 1229b, which permits the

Attorney General to cancel removal for certain aliens,

but excludes from consideration those who, like Frederick,

have committed aggravated felonies. Illegal Immigration

Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.

L. No. 104-208, 110 Stat. 3009-594. The Supreme Court 2
No. 09-2607 7

(...continued) 2

felons, see Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277. See also

Zamora-Mallari, 514 F.3d at 687 (describing amendments to

former § 212(c)). IIRIRA also expanded the definition of aggravated felony to include sexual abuse of a minor and explicitly

made that amendment retroactive. See IIRIRA § 321, 8 U.S.C.

§ 1101(a)(43); see also Zamora-Mallari, 514 F.3d at 690 (upholding the retroactivity of IIRIRA’s amendment to the definition of aggravated felony).

subsequently held in I.N.S. v. St. Cyr that the repeal of

former § 212(c) could not be retroactively applied to

aliens who pleaded guilty prior to IIRIRA’s effective date.

533 U.S. at 326 (holding that “§ 212(c) relief remains

available for aliens . . . whose convictions were obtained

through plea agreements and who, notwithstanding

those convictions, would have been eligible for § 212(c)

relief at the time of their plea under the law then in effect”).

In 2004 DHS implemented St. Cyr and codified the

judicially created statutory-counterpart rule by promulgating 8 C.F.R. § 1212.3(f)(5). Section 1212.3(f)(5) provides that § 212(c) relief is available to lawful permanentresident aliens who pleaded guilty before § 212(c)

was repealed—but only if they satisfy the statutory-counterpart test. See 8 C.F.R. § 1212.3(f)(5) (application for

§ 212(c) relief “shall be denied” if 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” (emphasis
8 No. 09-2607

added)). In other words, the regulation returned the

law regarding § 212(c) eligibility to the status quo ante.

In 2005 the BIA issued its decision in Blake, 23 I. & N.

Dec. 722, which applied the statutory-counterpart test

to an alien who, like Frederick, was ordered removed for

having been convicted of an aggravated felony involving

sexual abuse of a minor. The BIA held that “the ‘sexual

abuse of a minor’ category in the aggravated felony

definition does not have a ‘statutory counterpart’ in the

grounds of inadmissibility” under § 212(a). Id. at 724.

Particularly relevant here, the BIA specifically rejected

the argument that an aggravated felony involving

sexual abuse of a minor is sufficiently comparable to

a crime of moral turpitude, a statutory ground for inadmissibility in § 212(a). Id. at 728. The BIA explained that

“the moral turpitude ground of exclusion addresses a

distinctly different and much broader category of offenses

than the aggravated felony sexual abuse of a minor

charge.” Id. The proper inquiry turned on whether Congress had used “similar language to describe substantially equivalent categories of offenses.” Id. Although

the crime of sexual abuse of a minor entails moral turpitude, the two categories of crimes were not substantially

equivalent and thus were not statutory counterparts

for purposes of extending § 212(c) relief. Id.

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
No. 09-2607 9

In Zamora-Mallari, 514 F.3d at 692, we declined to follow 3

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). The BIA, however, generally continues

(continued...)

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. ZamoraMallari, 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. The Supreme 3
10 No. 09-2607

(...continued) 3

to adhere to its prior understanding of the statutory-counterpart rule notwithstanding the Second Circuit’s decision in Blake.

See Matter of Moreno-Escobosa, 25 I. & N. Dec. 114, 117 (B.I.A.

2009) (“It is important to note that nothing in this decision

is intended to cast doubt on our prior holdings where we

articulated the ‘statutory counterpart’ rule that an alien

seeking to waive a deportation ground must establish that

there is a comparable ground of inadmissibility in section 212(a)

of the Act.”). We decline Frederick’s invitation to replace

our approach to the statutory-counterpart test with the categorical approach used in the cancellation-of-removal context

under 8 U.S.C. § 1229b. Pursuant to § 1229b, the Attorney

General may not cancel the removal of an alien who has

been convicted of a crime of moral turpitude. 8 U.S.C.

§ 1229b(b)(1)(C). Whether a particular offense qualifies as a

crime of moral turpitude for purposes of ineligibility for

cancellation of removal is determined by the elements of the

statute under which the alien was convicted. See Padilla v.

Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005). This categorical

approach is similar to the Second Circuit’s reasoning in

Blake because the starting point is the underlying offense,

regardless of the actual charged ground of removal. 

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).

With this background in place, we now turn to Frederick’s claims, noting first that while we ordinarily would

lack jurisdiction to review an order of removal against

an alien who is removable by reason of having committed
No. 09-2607 11

an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), we retain

jurisdiction to review constitutional claims and questions

of law, id. § 1252(a)(2)(D). To the extent Frederick raises

legal and constitutional claims in his petition for review,

we review them de novo. Klementanovsky v. Gonzales,

501 F.3d 788, 791 (7th Cir. 2007).

Frederick first argues that he is eligible for a § 212(c)

waiver because DHS could have charged him with

removal under 8 U.S.C. § 1227(a)(2)(A)(ii) for having

been convicted of “two or more crimes involving moral

turpitude, not arising out of a single scheme of criminal

misconduct,” instead of charging him with removability

based on a conviction for an aggravated felony involving

sexual abuse of a minor. He maintains that this alternative ground makes him eligible for a § 212(c) waiver

because it satisfies the statutory-counterpart rule. He

also claims he had an expectation of a § 212(c) waiver at

the time he entered his guilty pleas and thus falls under

the purview of St. Cyr.

We disagree. As we have explained, under our caselaw,

what DHS could have charged as grounds for removal is

irrelevant. Here, Frederick’s Notice of Removal charged

him with having committed an aggravated felony involving the sexual abuse of a minor. Under established

circuit precedent, sexual abuse of a minor has no comparable ground of inadmissibility in § 212(a), making Frederick

ineligible for § 212(c) relief. Zamora-Mallari, 514 F.3d at

691. That Frederick committed two acts of sexual abuse

of a minor instead of one does not change this result.
12 No. 09-2607

We also disagree with Frederick’s claim that he is

entitled to § 212(c) relief under St. Cyr. The Supreme

Court held in St. Cyr that “§ 212(c) relief remains available

for aliens . . . whose convictions were obtained through

plea agreements and who, notwithstanding those convictions, 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. But Frederick was not eligible for § 212(c)

relief at the time of his guilty pleas because the crime of

sexual abuse of a minor has no comparable ground of

inadmissibility in § 212(a). Where there is no comparable

ground of inadmissibility, St. Cyr is simply inapplicable.

Zamora-Mallari, 514 F.3d at 691. We need not address

any of Frederick’s reliance-based arguments because he

was never eligible for a § 212(c) waiver in the first place.

Frederick also makes several constitutional arguments,

most of which are foreclosed by circuit precedent. He

contends that the statutory-counterpart rule violates his

right to equal protection, but we have twice rejected this

argument. See id. at 691-92; Valere, 473 F.3d at 762. We

noted in Valere that the statutory-counterpart rule can

hardly violate equal protection because it is itself the

test for an equal-protection violation: 

[T]he requirement of a comparable ground of exclusion in § 212(a) . . . is what makes a removable,

nondeparting alien similarly situated to an admissible

alien in the first place. If the removable alien’s crime

of conviction is not substantially equivalent to a

ground of inadmissibility under § 212(a), then the

removable alien is not similarly situated for purposes
No. 09-2607 13

of claiming an equal protection right to apply for

§ 212(c) relief.

Valere, 473 F.3d at 762.

Frederick fine-tunes the argument a bit by contending

that DHS violated his equal-protection rights when it

exercised its discretion to charge him with removability

for an aggravated felony involving sexual abuse of a

minor rather than an available alternative charge of

removability for having committed two crimes of

moral turpitude—a charging decision that rendered him

ineligible for § 212(c) relief. To the extent Frederick is

asking us to review DHS’s discretionary determination

of what to charge as the basis for removal, we have no

jurisdiction over that question. 8 U.S.C. § 1252(g) (“[N]o

court shall have jurisdiction to hear any cause or claim

by or on behalf of any alien arising from the decision or

action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders

against any alien under this chapter.”). As charged,

Frederick is not similarly situated to a returning alien

who is inadmissible under a statutory counterpart in

§ 212(a), and therefore he has no equal-protectionbased entitlement to seek § 212(c) relief. See Valere, 473

F.3d at 762.

Finally, we reject Frederick’s due-process challenge to

the BIA’s removal order. To the extent this claim is different from his equal-protection argument, it appears to

rest on a contention that the BIA violated due process

by incorrectly applying its decision in Blake and finding

him ineligible for a § 212(c) waiver. Frederick overlooks
14 No. 09-2607

Frederick also claims that his due-process rights were 4

violated when the immigration judge and the BIA did not

consider in full all of his constitutional objections to the

statutory-counterpart test. Due process in immigration proceedings only requires that the immigration judge give Frederick a “meaningful opportunity to be heard,” and nothing in

the record indicates that he was deprived of that right.

Barradas v. Holder, 582 F.3d 754, 767 (7th Cir. 2009). The BIA

specifically noted that the immigration judge “rejected a

number of other arguments presented [by Frederick], including those relating to equal protection and due process.”

5-3-11

the fact that he has no due-process right to a § 212(c)

waiver; § 212(c) relief from removal is in the discretion of

the Attorney General. See United States v. Santiago-Ochoa,

447 F.3d 1015, 1020 (7th Cir. 2006) (holding that aliens

in removal proceedings have no due-process right to be

considered for discretionary relief); see also Nguyen v.

Dist. Dir., Bureau of Immigration & Customs Enforcement,

400 F.3d 255, 259 (5th Cir. 2005) (holding that “neither

relief from removal under discretionary waiver nor

eligibility for such discretionary relief is entitled to due

process protection”).4

PETITION DENIED.