Though the statute referenced admission only, federal courts and the BIA expanded it to apply to noncitizens facing deportation to avoid potential Equal Protection Clause problems. See Francis v. INS, 532 F.2d 268 (2nd Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA 1976). Not surprisingly, the expansion of § 212(c) “presented difficult line-drawing problems.”

…Mr. G—A—, who had actually departed, returned to the country, and then faced deportation. … In 1976, however, the Second Circuit effectively eliminated this physical-departure limitation on section 212(c) eligibility.” Fawk, 32 Western New England L. Rev. at 427-29.That Second Circuit decision, Francis v. INS, 532 F.2d 268 (2d Cir. 1976), forms the basis of what many immigration lawyers have taken for granted during the last three decades—that §212(c) applies to deportation as well as exclusion. The reason, as Fawk explains, was that the court applied an equal protection analysis to § 212(c) determining that there was no rational relation to a legitimate governmental interest in allowing some individuals to seek § 212(c) relief (those who had left the United States) while denying others who were similarly situated but for one factor (they had not left the country) this benefit.Soon the BIA adopted this approach too. Fawk, 32 Western New England L. Rev. at 429 (citing Matter of Silva, 16 I&N Dec. 26, 30 (BIA 1976)). To determine whether a person in deportation proceedings was similarly situated to one in exclusion proceedings, “[t]he BIA settled on the comparable-grounds approach to guide immigration judges in their equal protection determination.” Fawk, 32 Western New England L. Rev. at 430. Eventually DHS codified the comparable grounds approach using a “statutory counterpart” requirement in which the proper focus is the ground of removal not the underlying offense. Fawk, 32 Western New England L. Rev. at 439 (discussing 8 C.F.R. § 1212.3(f)).According to Fawk, “In 2005, the BIA for the first time applied the new statutory-counterpart test in In re Blake.” Fawk, 32 Western New England L. Rev. at 440 (discussing Matter of Blake, 23 I&N Dec. 722 (BIA 2005)). In that case, “the BIA stressed, ‘Congress [must have] employed similar language to describe substantially equivalent categories of offenses.’” Fawk, 32 Western New England L. Rev. at 440.Eight courts of appeals have followed the BIA’s Matt