Opinions of the United
2007 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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)
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

                               -2-
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.




                               -3-
                               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


                               -4-
Second Circuit’s decision in St. Cyr v. INS, 

(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

                               -5-
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 pre-
AEDPA 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


                                -6-
       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,

                                -7-
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.



                               -8-
        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., 

, 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




                               -9-
aggravated felons;1 (ii) that he is entitled to invoke § 212(c)
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


       1
         We consider all three of Caroleo’s claims even though
the BIA’s July 7, 2005 decision deals only with the “five year”
and “statutory counterpart” grounds.

                                -10-
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 1991.2 This requirement has
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).3 See also Farquharson


       2
         Section 212(c) was repealed in the Illegal Immigration
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.
       3
         The statutory counterpart requirement has somewhat
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-
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, 

, 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-
v. United States AG, 

, 1324 (11th Cir. 2001);
Cato v. INS, 

(2d Cir. 1996); Gjonaj v. INS, 

, 827 (6th Cir. 1995); Komarenko v. INS, 

, 435
(9th Cir. 1994); Chow v. INS, 

, 38 (5th Cir. 1993);
Leal-Rodriguez v. INS, 

, 948-52 (7th Cir. 1993);
Campos v. INS, 

, 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. §


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-
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


       4
         We have recognized that “it is not uncommon for the
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-
         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, 

, 894 (2d Cir.1993);
Campos v. INS, 

, 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


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-
a crime involving moral turpitude for the purposes of
determining removability, see, e.g., Yousefi v. United States
INS, 

, 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, 

(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

                               -16-
“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.”

.

       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

                               -17-
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, 

, 792, 

,
       

(1977); 

,
       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

                              -18-
       adopt a factual approach to our equal protection
       analysis in the context of the deportation and
       excludability provisions of the INA.

(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., 

, 844 (1984), Francois v. Gonzales, 

, 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

                              -19-
“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

                              -20-
       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

                              -21-
       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.

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

                              -22-
       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 § 237.5 Caroleo does not

       5
         Because we find that the crime of violence ground for
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-
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., 

. 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.



                               -24-
       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

                               -25-
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, 

, 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

                              -26-
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, 

(3d Cir. 2002) and Partyka v. Attorney
General, 

(3d Cir. 2005). There we cited vileness,
depravity, and reprehensible acts deliberately committed as
characteristic of moral turpitude. See, e.g., Ascencio v. INS,

(11th Cir. 1994) (BIA categorized attempted
murder as crime of moral turpitude).

      That said, however, petitioner’s crimes do not constitute
deportation grounds for m oral turpitude.                 IN A


       6
         The majority did not reach the question whether the
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-
§ 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.” 7 See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Because
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


       7
        Subsection (iii) provides that an alien who is convicted of
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-
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.




                              -29-