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Wednesday, June 19, 2024 | Back issues
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Ninth Circuit Refuses to Expand Immigration Law

(CN) - Congress had a rational basis for limiting an immigration provision suspending inadmissibility to legal permanent residents, because it creates an incentive for deportable aliens to leave the country, a federal appeals court in San Francisco ruled.

The 9th Circuit refused to extend the provision to aliens facing deportation after finding a "legitimate congressional objective" for the law's limitation.

Section 212(c) of the former Immigration and Nationality Act allows the attorney general to grant legal permanent residents relief from inadmissibility, but not deportation. Inadmissibility applies to a foreigner barred from entering the United States; deportation applies to an immigrant who's already in the country and gets ejected.

Petitioner Yewhalashet Abebe argued that equal protection requires the 9th Circuit to extend section 212(c) relief to aliens facing deportation, if they were eligible for relief from inadmissibility.

Abebe, a legal permanent resident since 1984, faced removal after he pleaded guilty to lewd and lascivious conduct on a child in 1992.

He urged the court to overrule its decision in Komarenko v. INS, which held that a deportable alien can only be eligible for section 212(c) relief if his grounds for deportation are "substantially identical" to a ground for inadmissibility.

But that holding doesn't square with Tapia-Acuna v. INS, Abebe argued. In Tapia-Acuna, the court saw no reason to grant more relief to immigrants who temporarily leave the United States and try to reenter, than to those who remain in the United States.

By overturning Tapia-Acuna instead of Komarenko, the 9th Circuit affirmed the denial of deportation relief to Abebe.

"A deportable alien who wishes to obtain section 212(c) relief will know that he can't obtain such relief so long as he remains in the United States," the court wrote. "If he departs the United States, however, he could become eligible for such relief. By encouraging such self-deportation, the government could save resources it would otherwise devote to arresting and deporting these aliens."

Judges Clifton, Silverman and Gould concurred, and Judges Thomas and Pregerson dissented.

"Distilled to its essence, this case involves the irrationality of affording privileges to lawful permanent residents who step across the border for a day, but deny the same privileges to those who do not," Thomas wrote.

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