In the wake of those problems, the Attorney General declared that § 212(c) relief was unavailable to any LPR who was deportable or removable “on a ground which does not have a statutory counterpart in § 212 of the Act.” 8 C.F.R. § 1212.3(f)(5). As applied, two precedents emerged from this convoluted history: (1) LPRs who were deportable under the “sexual abuse of a minor” or (2) “crime of violence” aggravated felony categories were ineligible for section 212(c) relief because those categories lacked substantially equivalent statutory counterparts in the inadmissibility grounds.

t 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 Matter of Blake approach, Fawk writes: the First, Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh. Fawk, 32 Western New England L. Rev. at 441. These circuits determine whether a comparable ground of exclusion exists by looking only at the statutory language of the charged ground of deportation and the language of the ground of exclusion that the respondent claims is comparable. Fawk, 32 Western New England L. Rev. at 442.In contrast, the Second Circuit adopted an “offense-specific” approach in Blake v. Carbone, 489 F.3d 88 (2d