Cite as 23 I&N Dec. 722 (BIA 2005) Interim Decision #3509 

In re Leroy Nelson BLAKE, Respondent 

File A41 359 316 - New York 

Decided April 6, 2005 

U.S. Department of Justice

Executive Office for Immigration Review 

Board of Immigration Appeals 

An alien who is removable on the basis of his conviction for sexual abuse of a minor is 

ineligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 

8 U.S.C. § 1182(c) (1994), because the aggravated felony ground of removal with which he 

was charged has no statutory counterpart in the grounds of inadmissibility under section 

212(a) of the Act, 8 U.S.C. § 1182(a) (2000). Matter of Meza, 20 I&N Dec. 257 (BIA 

1991), distinguished. 

FOR RESPONDENT: Matthew L. Guadagno, Esquire, and Kerry W. Bretz, Esquire, New 

York, New York 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Christopher Tod St. John, 

Assistant Chief Counsel 

BEFORE: Board Panel: HOLMES, Acting Vice Chairman; HURWITZ and MILLER, 

Board Members. 

HOLMES, Acting Vice Chairman: 

In a decision dated March 12, 2003, the Immigration Judge granted a 

waiver to the respondent under former section 212(c) of the Immigration and 

Nationality Act, 8 U.S.C. § 1182(c) (1994). The Department of Homeland 

Security (“DHS”) has appealed, arguing that the respondent is ineligible for 

a waiver because the aggravated felony offense of sexual abuse of a minor that 

is the basis for his removal has no statutory counterpart in the grounds of 

inadmissibility in section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). As we 

find that the respondent is ineligible for a section 212(c) waiver, the appeal of 

the DHS will be sustained and the respondent will be ordered removed. 

I. FACTUAL AND PROCEDURAL HISTORY 

The respondent entered the United States on August 14, 1987, as a lawful 

permanent resident. On May 15, 1992, he pleaded guilty to sexual abuse in 

the first degree for “subject[ing] another person to sexual contact . . . (3) 

When the other person is less than eleven years old” in violation of section 

130.65(3) of the New York State Penal Law. Based on this offense, the 

Immigration and Naturalization Service, now the DHS, issued a notice to 

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appear on July 20, 1999, charging the respondent under section 

237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. V 1999), as 

an alien convicted of sexual abuse of a minor, which is an aggravated felony 

under section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 

1999). In a decision dated January 26, 2000, the Immigration Judge found the 

respondent removable as charged and pretermitted his request for a section 

212(c) waiver, finding that such a waiver was unavailable in removal 

proceedings. The respondent appealed the denial of his waiver request. 

While the respondent’s appeal was pending before us, the United States 

Supreme Court held that section 212(c) relief remained available in removal 

proceedings to otherwise eligible aliens who pleaded guilty to certain offenses 

prior to the 1996 repeal of section 212(c). INS v. St. Cyr, 533 U.S. 289 

(2001). We therefore remanded this case to the Immigration Court to further 

consider the respondent’s eligibility for a section 212(c) waiver. 

On remand, the DHS raised the question whether the respondent’s ground 

of removal had a comparable ground of inadmissibility. The Immigration 

Judge concluded that the categories of offenses described in section 

101(a)(43)(A) of the Act had a comparable ground of inadmissibility in that 

nearly all such offenses “would necessarily involve moral turpitude.” After 

examining the relevant equities and adverse factors, the Immigration Judge 

granted the respondent a section 212(c) waiver in the exercise of discretion 

and terminated proceedings. 

II. ISSUES ON APPEAL 

On appeal, the DHS argues that there is no comparable ground of 

inadmissibility for the respondent’s aggravated felony offense. The DHS also 

contends that the Immigration Judge erred in granting section 212(c) relief in 

the exercise of discretion. As discussed below, we find that the aggravated 

felony offense of sexual abuse of a minor has no statutory counterpart in the 

section 212(a) grounds of inadmissibility. As the respondent is therefore 

ineligible for a section 212(c) waiver, we do not reach the issue of the 

Immigration Judge’s exercise of discretion. 

III. ANALYSIS 

We will first briefly review the origins and development of the 

comparability requirement for a section 212(c) waiver. We will then examine 

the recently promulgated section 212(c) regulation and its explicit requirement 

that a respondent in removal proceedings who applies for a waiver must 

demonstrate a “statutory counterpart” in the grounds of inadmissibility. 

Executive Office for Immigration Review; Section 212(c) Relief for Aliens 

With Certain Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 

57,826, 57,835 (Sept. 28, 2004) (to be codified at 8 C.F.R. § 1212.3(f)(5)) 

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(effective Oct. 28, 2004).1 As discussed below, our precedent decisions and 

the newly promulgated regulatory provision indicate that the “sexual abuse of 

a minor” category in the aggravated felony definition does not have a 

“statutory counterpart” in the grounds of inadmissibility. 

Former section 212(c) of the Act provided for a discretionary waiver of 

certain grounds of inadmissibility under section 212(a) for “[a]liens lawfully 

admitted for permanent residence who temporarily proceeded abroad 

voluntarily and not under an order of deportation, and who are returning to a 

lawful unrelinquished domicile of seven consecutive years.” In Francis v. 

INS, 532 F.2d 268 (2d Cir. 1976), the court held that the constitutional 

requirements of due process and equal protection required that the section 

212(c) waiver be afforded to nondeparting lawful permanent resident aliens, 

as well as those who had proceeded abroad. In Matter of Silva, 16 I&N Dec. 

26 (BIA 1976), we adopted the holding of the Francis court and concluded 

that section 212(c) permits a waiver of a ground of inadmissibility to a 

permanent resident alien in deportation proceedings regardless of whether he 

departs the United States following the act or acts which render him 

deportable. 

In subsequent cases, we held that section 212(c) applied only to those 

charges of deportability for which there was a comparable ground of 

inadmissibility. See, e.g., Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); 

Matter of Granados, 16 I&N Dec. 726 (BIA 1979). The Attorney General 

affirmed this approach in Matter of Hernandez-Casillas, 20 I&N Dec. 262 

(BIA 1990; A.G. 1991), holding that section 212(c) should not be afforded 

for a ground of deportability that is not also a waivable ground of 

inadmissibility under section 212(a). 

In Matter of Meza, 20 I&N Dec. 257 (BIA 1991), we first addressed the 

question of comparable grounds in a case involving an aggravated felony 

ground of deportability. In Matter of Meza, we held that “a waiver under 

section 212(c) is not unavailable to an alien convicted of an aggravated felony 

simply because there is no ground of exclusion which recites the words, 

‘convicted of an aggravated felony,’ as in section 241(a)(4)(B) of the Act.” 

Id. at 259. We referred, instead, to the specific category of aggravated felony 

charged, section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. III 

1991), which referred to “any illicit trafficking in any controlled substance 

. . . , including any drug trafficking crime.” The comparable ground of 

inadmissibility at issue, former section 212(a)(23)(A) of the Act, 8 U.S.C. 

§ 1182(a)(23)(A) (Supp. I 1989), referred to convictions for “violation of, or 

1 The amendments to the section 212(c) regulation were promulgated after appellate briefs 

had been submitted in this case. We asked the parties to submit supplemental briefs 

addressing the effect of the new regulation on the question of comparable grounds. We 

acknowledge and appreciate the thoughtful arguments presented by the parties in their 

supplemental briefs. 

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a conspiracy to violate, any law or regulation . . . relating to a controlled 

substance.” We concluded that “as the respondent’s conviction for a drugrelated aggravated felony clearly could also form the basis for excludability 

under section 212(a)(23), he is not precluded from establishing eligibility for 

section 212(c) relief based on his conviction for an aggravated felony.” 

Matter of Meza, supra, at 259. 

In Matter of Montenegro, 20 I&N Dec. 603 (BIA 1992), the respondent 

was charged with deportability under former section 241(a)(2)(C) of the Act, 

8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), for conviction of a firearms 

violation, a provision for which we had previously found no comparable 

ground of exclusion. See Matter of Granados, supra. The respondent argued, 

nonetheless, that because his firearms conviction also involved moral 

turpitude, he would be inadmissible under former section 212(a)(2)(A)(i)(I) 

of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (Supp. III 1991) (moral turpitude 

offenses), and that, under Matter of Meza, supra, the overlap in the coverage 

of the two provisions should suffice for eligibility for section 212(c) relief. 

We rejected this argument, finding that “section 212(c) cannot waive the 

charge of deportability under section 241(a)(2)(C) in the instant case because 

section 241(a)(2)(C) has no analogous ground of inadmissibility.” Matter of 

Montenegro, supra, at 605. We distinguished our decision in Matter of Meza, 

supra, by noting that there “we addressed the unique situation created by the 

language and legislative history of an amendment to section 212(c) by section 

511 of the Immigration Act of 1990, 104 Stat. at 5052,2

 which indicated that 

some aggravated felons are eligible for a section 212(c) waiver in deportation 

proceedings even though there is no single comparable ground of exclusion 

based on conviction of an aggravated felony.” Matter of Montenegro, supra, 

at 605. 

Similarly, in Matter of Esposito, 21 I&N Dec. 1 (BIA 1995), we rejected 

arguments that a respondent who was charged with a conviction for a firearms 

violation under former section 241(a)(2)(C) of the Act had demonstrated a 

comparable ground of exclusion even though the firearms violation was 

arguably one of two or more crimes which could render the alien inadmissible 

for conviction of multiple crimes of moral turpitude. We again distinguished 

Section 511(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 

5052, amended section 212(c) to provide that an alien convicted of an aggravated felony 

who has served 5 years or more in prison is ineligible for a discretionary waiver. In Cato 

v. INS, 84 F.3d 597 (2d Cir. 1996), the court observed that “IMMACT § 511(a) has nothing 

to say about weapons offenders. It simply provides that some aggravated felons are 

ineligible for § 212(c) relief. It would be perverse to infer from this amendment—which 

limits the scope of § 212(c)—a concurrent expansion of § 212(c) eligibility to an offense 

that is neither listed in § 212(a), nor mentioned in IMMACT § 511(a) itself. ‘By leaving the 

exceedingly specific language of § 212(c) substantially unchanged, [Congress] can only be 

said to have expressed a continued desire to limit § 212(c) to the listed grounds of 

exclusion.’” Id. at 601 (quoting Campos v. INS, 961 F.2d 309, 315 (1st Cir. 1992)). 

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Matter of Meza, supra, as a decision that “is limited to the question of 

eligibility for section 212(c) relief in the case of a conviction for a drugtrafficking aggravated felony and is based on the specific amendment to 

section 212(c) regarding aggravated felonies.” Matter of Esposito, supra, at 

9. We then held that Matter of Meza “does not alter the general rule that 

section 212(c) relief is available in deportation proceedings only to those 

aliens who have been found deportable under a ground of deportability for 

which there is a comparable ground of excludability.” Id. at 9-10. 

In our most recent decision on the comparable ground issue, we addressed 

whether a section 212(c) waiver was available to a respondent charged with 

deportability under former section 241(a)(3)(B)(iii) of the Act, 8 U.S.C. 

§ 1251(a)(3)(B)(iii) (1994), for a conviction under 18 U.S.C. § 1546(a) (1994) 

(relating to fraud and misuse of visas, permits, or other entry documents). 

Matter of Jimenez, 21 I&N Dec. 567 (BIA 1996). The respondent argued that 

his deportation charge had a comparable ground in section 212(a)(6)(C)(i) of 

the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (1994), relating to exclusion for fraud or 

willful misrepresentation of a material fact in procuring a visa, entry into the 

United States, or other immigration benefit. We reasoned that although there 

was some overlap in the offenses covered by these two provisions, § 1546(a) 

“encompasses more serious document fraud and misuse offenses not 

contemplated by the ‘willful misrepresentation’ language of section 

212(a)(6)(C)(i), including the crime of selling visas, permits, and other 

immigration documents.” Id. at 573. In Matter of Jiminez, we rejected an 

approach that asks whether the respondent’s offense or conduct is subsumed 

under the terms of one of the exclusion grounds. Id. at 574. Rather, we 

concluded that “[t]he essential analysis is to determine whether the deportation 

ground under which the alien has been adjudged deportable has a statutory 

counterpart among the exclusion grounds waivable by section 212(c).” Id. 

(emphasis added). 

The recently promulgated regulations confirm that the comparability 

requirement applies to aliens who seek section 212(c) relief in removal 

proceedings. The final rule renders ineligible for a section 212(c) waiver an 

alien “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.” 69 Fed. Reg. at 57,835 (to be codified 

at 8 C.F.R. § 1212.3(f)(5)). The Supplementary Information to the final rule 

provides the following explanation for the addition of this requirement: 

One commenter stated that the proposed rule should clarify that an alien charged 

and found deportable as an aggravated felon is not eligible for section 212(c) relief 

“if there is no comparable ground of inadmissibility for the specific category of 

aggravated felony charged.” The commenter continues, “[f]or example, the rule 

should not apply to aggravated felons charged with deportability under specific types 

or categories of aggravated felonies such as ‘Murder, Rape, or Sexual Abuse of a 

Minor’ or ‘Crime of Violence’ aggravated felonies.” Thus, the commenter states that 

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§ 1212.3(f)(4) should include those aliens who have been charged with aggravated 

felonies for which there is no corresponding ground of inadmissibility as being 

ineligible for section 212(c) relief. 

The commenter is correct in stating this limitation on the scope of relief available 

under section 212(c). Matter of Granados, 16 I&N Dec. 726, 728 (BIA 1979) (“[I]f 

a ground of deportation is also a ground of inadmissibility, section 212(c) can be 

invoked in a deportation hearing.”); Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988); 

Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991). In 

describing the eligibility requirements, the supplementary information of the proposed 

rule noted that “[a]n applicant must, at a minimum, meet the following criteria to be 

considered for a waiver under section 212(c): * * * [t]he alien is deportable or 

removable on a ground that has a corresponding ground of exclusion or 

inadmissibility * * * ” 67 FR at 52628-52629. However, this requirement was not 

included in the regulatory language of the proposed rule. As a result, the Department 

will effectuate the commenter’s suggestion by adding this requirement for section 

212(c) eligibility. Accordingly, the final rule provides that an alien who is deportable 

or removable on a ground that does not have a corresponding ground of exclusion or 

inadmissibility is ineligible for section 212(c) relief. 

69 Fed. Reg. at 57,831-32. Given that the terms “corresponding ground,” 

“comparable ground,” and “statutory counterpart” are used interchangeably 

in the above explanation, we ascribe the same meaning to each term. 

In determining whether there is a corresponding ground or statutory 

counterpart in this case, we consider the offense of sexual abuse of a minor to 

be a discrete category of offense, apart from the other two offenses listed in 

section 101(a)(43)(A) of the aggravated felony definition. See Matter of 

Meza, supra (looking to the specific category of aggravated felony offense 

charged in making the required comparison). We therefore examine whether 

the “sexual abuse of a minor” aggravated felony ground of removal has a 

comparable ground or statutory counterpart in the grounds of inadmissibility. 

The only inadmissibility provision the respondent has identified as arguably 

comparable to his aggravated felony charge is section 212(a)(2)(A)(i)(I) of the 

Act. This section renders inadmissible to the United States any alien 

“convicted of, or who admits having committed, or who admits committing 

acts which constitute the essential elements of—(I) a crime involving moral 

turpitude (other than a purely political offense) or an attempt or conspiracy to 

commit such a crime.” The respondent argues that, as most convictions for 

sexual abuse of a minor would likely be crimes involving moral turpitude, the 

moral turpitude ground of inadmissibility should be considered a comparable 

ground.3 The respondent refers to Matter of Meza, supra, as a decision in 

3 In some respects, the sexual abuse of a minor aggravated felony category may be broader 

than the category of offenses covered by the moral turpitude ground of inadmissibility. A 

single misdemeanor conviction for sexual abuse of a minor, for example, is an aggravated 

felony. Matter of Small, 23 I&N Dec. 448 (BIA 2002). A respondent is not inadmissible 

for a single offense involving moral turpitude, however, unless the maximum possible 

penalty exceeds 1 year and the sentence imposed is more than 6 months’ imprisonment. See 

(continued...) 

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which we applied such an approach. In Matter of Meza, we concluded that 

“as the respondent’s conviction for a drug-related aggravated felony clearly 

could also form the basis for excludability under section 212(a)(23), he is not 

precluded from establishing eligibility for section 212(c) relief based on his 

conviction for an aggravated felony.” Id. at 259. 

In Matter of Meza, however, we compared an aggravated felony 

deportation charge and an exclusion provision which addressed similar 

categories of offenses involving illicit trafficking in drugs. The instant case 

differs from Matter of Meza in 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. To the extent that our 

comments in Matter of Montenegro, supra, and Matter of Esposito, supra, 

may have suggested a more relaxed approach to the analysis of comparable 

grounds in cases involving aggravated felony grounds of removal, the recently 

enacted regulation clarifies that the same test for comparability applies to 

aggravated felony grounds of removal as applies to other removal provisions. 

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 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. 

The approach outlined above is consistent with the test for comparable 

grounds applied by the United States Court of Appeals for the Second Circuit, 

the court with jurisdiction over this case. In Cato v. INS, 84 F.3d 597, 600 (2d 

Cir. 1996), the court identified three distinct groups into which a deportee 

seeking section 212(c) relief may fall: 

(1) The deportee’s ground of deportation may be congruent with a ground of

exclusion listed in § 212(a). Such a deportee is eligible for § 212(c) relief. 

(2) The deportee’s ground of deportation may be one that could not possibly be

analogous to a ground of exclusion. Such a deportee is also eligible for § 212(c) 

relief. 

(3) The deportee’s ground of deportation may be one that could conceivably have

an analogous ground of exclusion under § 212(a) but, unhappily, Congress has not 

chosen to include that ground in § 212(a). Such a deportee is not eligible for § 212(c) 

relief. 

(...continued) 

section 212(a)(2)(A)(ii)(II) of the Act (petty offense exception). 

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See also Drax v. Reno, 338 F.3d 98 (2d Cir. 2003) (referring to the same three 

categories and finding that a ground of deportation based on a conviction for 

a drug offense fell into the first group—a ground of deportation congruent 

with a ground of exclusion in section 212(a) of the Act). The respondent 

argues that “sexual abuse of a minor” is “congruent with” or “analogous” to 

the crime involving moral turpitude provision under section 212(a) and 

therefore falls within the first group described above. The DHS contends that 

Congress could have included, but chose not to include, “sexual abuse of a 

minor” as a ground of inadmissibility under section 212(a), and therefore the 

respondent falls under the third group. 

In Cato v. INS, supra, at 600, the court found that a weapons offense “falls 

squarely into the third group.” Congress could have included such offenses 

as grounds of exclusion under section 212(a), but chose not to do so. The 

overlap between some weapons offenses and crimes of moral turpitude did not 

satisfy the requirement that the ground of deportation be “congruent with” a 

ground of exclusion in section 212(a). Id. As the court noted, “a § 212(c) 

waiver becomes available in a deportation proceeding if the reason for 

deportability is‘substantially equivalent’ to a ground of exclusion listed in 

§ 212(a).” Id. at 599 (citing 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)). Like weapons 

offenses, the “sexual abuse of a minor” category also fails the Second 

Circuit’s “substantially equivalent” test when paired with the crime of moral 

turpitude provision in section 212(a). 

The coverage of the offenses described need not be a perfect match in 

order to be “statutory counterparts” under the regulation so long as the ground 

of inadmissibility addresses essentially the same category of offenses under 

which the removal charge is based. In Matter of Meza, supra, for example, 

the language used in describing the drug-related aggravated felony provision 

covered substantially the same category of drug-related offenses addressed in 

the exclusion ground. Under the regulation and our precedent decisions, 

however, the test for comparability is not met merely by showing that some 

or many of the offenses included in the charged category could also be crimes 

involving moral turpitude. 

IV. CONCLUSION 

As the respondent has not identified a ground of inadmissibility 

substantially equivalent to the “sexual abuse of a minor” category of 

aggravated felony offenses, he is ineligible for a section 212(c) waiver. 

Accordingly, the appeal of the DHS will be sustained and the Immigration 

Judge’s decision granting the respondent a section 212(c) waiver will be 

vacated. As the respondent has requested no other form of relief from 

removal, he will be ordered removed. 

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ORDER: The appeal of the Department of Homeland Security is 

sustained. 

FURTHER ORDER: The Immigration Judge’s March 12, 2003, order 

granting a section 212(c) waiver to the respondent and terminating 

proceedings is vacated. The respondent is ordered removed from the United 

States pursuant to the Immigration Judge’s decision of January 26, 2000. 

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