United States Court of Appeals

Fifth Circuit

FILED

March 19, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 05-61165

_______________________

ANTONIO AVILEZ-GRANADOS,

Petitioner,

versus

ALBERTO R. GONZALES

UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order of

the Board of Immigration Appeals

Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit

Judges.

EDITH H. JONES, Chief Judge:

Petitioner Antonio Avilez-Granados (“Avilez”) appeals a

Board of Immigration Appeals (“BIA”) decision holding that he is

ineligible to apply for discretionary relief under § 212(c) of the

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

because his crime, aggravated sexual assault of a child, lacks a
1 We note that two companion cases, Vo v. Gonzales, No. 05-60518, and

Brieva-Perez v. Gonzales, No. 05-60639, were heard on the same day and contain

related issues and overlapping reasoning. 

2

comparable ground of inadmissability under INA § 212(a).1 Avilez

further challenges the BIA’s authority to enter a removal order

where the Immigration Judge (“IJ”) initially granted § 212(c)

relief. We DENY Avilez’s petition for review of the BIA’s denial

of § 212(c) relief, but because he was not given an opportunity to

apply for an adjustment of status based on his marriage to an

American citizen, we REMAND to the BIA for further proceedings.

I. BACKGROUND

Petitioner Avilez was born in Mexico in 1967 and became

a lawful permanent resident of the United States in 1988. He is

married to a United States citizen and is the father of two United

States citizen children. In 1994, Avilez pleaded guilty to

aggravated sexual assault of a child in Texas state court. He

received ten years of probation, which he successfully completed in

2004. On December 1, 2003, the Department of Homeland Security

(“DHS”) issued a Notice to Appear charging Avilez with removability

from the United States as an alien convicted of an aggravated

felony under 8 U.S.C. § 1101(a)(43)(A). 

Avilez sought a waiver of deportation under former INA

§ 212(c), 8 U.S.C. § 1182(c). The IJ found Avilez to be

statutorily eligible for waiver of deportation because he had over

seven years of continuous lawful residence and he did not serve
3

more than five years in jail or prison. The IJ found that Avilez

had presented evidence of unusual or outstanding equities to

justify his exercise of discretion in granting a waiver. Among the

equities the IJ cited were Avilez’s long residence in the United

States, his citizen wife’s serious health problems, and the fact

that his citizen children do not speak Spanish. The court also

noted that Avilez successfully completed probation, accepted

responsibility, and won his victim’s forgiveness.

DHS appealed to the BIA, arguing both that Avilez was

statutorily ineligible for § 212(c) relief and that he was not

deserving of relief as a matter of discretion. The BIA reversed

the IJ’s decision, finding Avilez statutorily ineligible for

§ 212(c) relief under its recent decision Matter of Blake, which

held that the offense that rendered Avilez removable (sexual abuse

of a minor) has no “statutory counterpart” in the grounds of

inadmissibility under § 212(a). See Matter of Blake, 23 I. & N.

Dec. 722 (BIA 2005). The BIA granted Avilez voluntary departure

and issued an alternative order for removal from the United States.

Avilez timely filed a petition for review in this court. On March

3, 2006, the court denied Avilez’s motion for a stay of removal

pending review, and he subsequently was removed to Mexico. 
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II. DISCUSSION

A. Jurisdiction

Although the REAL ID Act limits this court’s jurisdiction

to review Avilez’s conviction for an aggravated felony, see

8 U.S.C. § 1252(a)(2)(C); Hernandez-Castillo v. Moore, 436 F.3d

516, 519 (5th Cir.), cert. denied, __ U.S. __, 127 S. Ct. 40

(2006), we retain jurisdiction to review the constitutional claims

and questions of law raised by Avilez under § 1252(a)(2)(D). See

Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d

733, 736 (5th Cir. 2005), cert. denied, __ U.S. __, 126 S. Ct. 1055

(2006). We review the BIA’s conclusions of law de novo, according

deference to the BIA’s interpretations of ambiguous provisions of

the INA. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.

1996). 

B. Availability of § 212(c) Relief

Avilez contends the BIA erred by finding him statutorily

ineligible to apply for a waiver of deportation under former INA

§ 212(c), 8 U.S.C. § 1182(c), because his conviction of sexual

assault of a child does not have a statutory counterpart ground of

inadmissibility under § 212(a). Avilez argues that the BIA’s

interpretation of § 212(c), as expressed in its regulations, see

8 C.F.R. § 1212.3(f)(5), and opinions, see Blake, 23 I. & N. Dec.

722, impermissibly contradicts prior agency practice; is an

irrational departure from prior policy and therefore undeserving of
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deference; creates a retroactive bar to relief in violation of

I.N.S. v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001); and

violates the Equal Protection clause and the decision of Francis v.

INS, 532 F.2d 268 (2d Cir. 1976). The same arguments were raised

before this panel in a companion case, Vo v. Gonzales, No. 05-

60518, and for the reasons set forth in that opinion, we reiterate

that the BIA did not err in holding Avilez ineligible for § 212(c)

relief. See also De la Paz Sanchez v. Gonzales, 473 F.3d 133 (5th

Cir. 2006) (UUV lacks statutory counterpart, and § 212(c) relief

therefore is unavailable); Caroleo v. Gonzales, 476 F.3d 158, 164-

68 (3d Cir. 2007)(aggravated felony of “crime of violence” does not

have a statutory counterpart in INA § 212(a)); Valere v. Gonzales,

473 F.3d 757, 761-62 (7th Cir. 2007)(8 C.F.R. § 1212.3 is not

impermissibly retroactive). 

To the extent Avilez presents arguments in addition to

those advanced in Vo, the outcome remains unchanged. Avilez

contends that unlike Vo’s crime of unauthorized use of a motor

vehicle, sexual assault of a child would be considered a “crime

involving moral turpitude” under any common-sense understanding.

However, it is not enough that a crime could be reclassified.

There is no textual link between sexual abuse of a child and crimes

involving moral turpitude to indicate that Congress had the same

class of offenses in mind when it enacted the two provisions that

must be compared. Cf. Matter of Meza, 20 I. & N. Dec. 257, 259

(BIA 1991) (petitioner found eligible to apply for § 212(c) relief
6

because his crime, trafficking in a controlled substance, was

sufficiently analogous to a section 212(a) ground of excludability,

namely violation of laws related to a controlled substance); see

also Blake, 23 I. & N. Dec. at 728 (“[W]hether 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.”). Absent this textual link, we

cannot extend § 212(c) relief to cover any crime that common-sense

might classify as involving moral turpitude. 

C. BIA’s Order of Removal

Avilez also contends that the BIA erred by ordering him

removed without remanding the case to the IJ for further

proceedings. Under 8 U.S.C. § 1101(a)(47)(A) and 8 C.F.R.

§ 1240.1(a)(1)(i) et seq., Avilez maintains, only special inquiry

officers and IJs may issue orders of removal. See Molina-Camacho

v. Ashcroft, 393 F.3d 937 (9th Cir. 2004). As counsel conceded at

oral argument, however, this court has already determined that the

BIA has the authority to issue an order of removal in the first

instance once the IJ has determined that the alien is removable.

See Delgado-Reynua v. Gonzales, 450 F.3d 596 (5th Cir. 2006). 

Nevertheless, while the BIA need not have remanded the

case for the IJ simply to issue the order of removal, Avilez urged

alternative grounds for relief that were never addressed. He
2 The BIA did not issue the Blake opinion until after Avilez had

applied for and been granted § 212(c) relief by the IJ. Because Blake clarified

agency practice and did not change the applicable rule, Avilez’s error was not

unreasonable. 

7

argues he should have been permitted to return to the IJ and apply

for adjustment of status based on his marriage to an American

citizen. See Matter of Azurin, 23 I. & N. Dec. 695, 698 (BIA

2005). Although he never sought this form of relief before the

BIA, he was not required to; the IJ had already granted Avilez

relief under § 212(c), and he therefore had no reason to press for

an adjustment of status. 

Avilez’s reliance on the availability of § 212(c) relief

was reasonable, albeit ultimately incorrect.2 This case must

therefore be remanded to the IJ to determine whether Avilez should

be granted an adjustment of status. 

III. CONCLUSION

For the reasons set forth by this court in Vo v.

Gonzales, No. 05-60518, and by the BIA in Blake, 23 I. & N.

Dec. 722, Avilez is ineligible to apply for relief under INA

§ 212(c), as his crime lacks a statutory counterpart ground of

inadmissability in INA § 212(a). His petition for review is thus

DENIED in part. However, because he should have been granted an

opportunity to apply for an adjustment of status before the IJ, we

REMAND the case for further proceedings consistent with this

opinion.