Gallegos-Vasquez v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE ALFREDO GALLEGOS-VASQUEZ, 
Petitioner, No. 05-72412
v.
 Agency No.
A092-132-610
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
October 5, 2010—Pasadena, California

Filed March 1, 2011

Before: Richard D. Cudahy,* Kim McLane Wardlaw and
William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.

2987
2990 GALLEGOS-VASQUEZ v. HOLDER

COUNSEL

Murray David Hilts, LAW OFFICES OF MURRAY D.
HILTS, San Diego, California, for the petitioner.
 GALLEGOS-VASQUEZ v. HOLDER 2991
Thankful T. Vanderstar, OFFICE OF IMMIGRATION LITI-
GATION, U.S. DEPARTMENT OF JUSTICE, Washington,
D.C., for the respondent.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Jose Alfredo Gallegos-Vasquez petitions for
review from an order of the Board of Immigration Appeals
(“BIA”) pretermitting his application for a waiver of inadmis-
sibility pursuant to the now-repealed § 212(c) of the Immigra-
tion and Nationality Act (“INA”). We hold, based on INS v.
St. Cyr, 533 U.S. 289 (2001), that the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. 104-208, 110 Stat. 1214, does not apply
retroactively to deny Gallegos-Vasquez the right to apply for
relief under § 212(c).

We grant Gallegos-Vasquez’s petition and remand for fur-
ther proceedings consistent with this opinion.

I. Background

Gallegos-Vasquez is a native and citizen of Mexico. He
became a lawful temporary resident under the Special Agri-
cultural Workers (“SAW”) program on November 23, 1987.
See INA §§ 210, 210A. At the time, he was twenty years old.

After entering the United States, Gallegos-Vasquez had
problems with alcohol and drugs. On March 15, 1989, he was
convicted of two California state misdemeanors, receiving
known stolen property and hit and run with property damage.
On July 31, 1989, he was convicted of a third California mis-
demeanor, taking a vehicle without consent or vehicle theft.
The government did not place documentation of these misde-
2992 GALLEGOS-VASQUEZ v. HOLDER
meanor convictions in the record during his removal proceed-
ing. However, Gallegos-Vasquez admitted to the facts
underlying these convictions in that proceeding.

Under the terms of the SAW program, if a lawful tempo-
rary resident is convicted of three or more misdemeanors, the
Attorney General has the authority to terminate lawful tempo-
rary resident status and to deny adjustment to lawful perma-
nent resident status. See 8 U.S.C. § 1160(a)(3). The exercise
of this power is permissive rather than mandatory. Id. The
Attorney General did not terminate Gallegos-Vasquez’s law-
ful temporary resident status. As long as Gallegos-Vasquez
maintained lawful temporary resident status, the SAW pro-
gram provided for automatic adjustment to lawful permanent
resident status. See 8 U.S.C. §§ 1160(a)(2), 1161(d)(1)
(1990). Gallegos-Vasquez maintained lawful temporary resi-
dent status and automatically adjusted to lawful permanent
resident status on December 1, 1990.

On December 18, 1992, Gallegos-Vasquez pled guilty to
burglary in California based on acts committed on June 16,
1989. He was sentenced to 240 days’ imprisonment and 3
years’ probation. The government placed documentation of
the conviction and plea in the record during Gallegos-
Vasquez’s removal proceeding.

During the 1990s, Gallegos-Vasquez began to turn his life
around. He was married on October 4, 1990. He participated
in a three-week inpatient treatment program for alcoholism in
late November and early December 1990. He and his wife had
a daughter on November 3, 1994, approximately one year
after he was released from prison on the burglary conviction.
He became an active member of his church and several
church-based groups. In January 1996, he got a job in an auto
body shop in Bellingham, Washington. He attended Belling-
ham Technical College and graduated in March 1997 with a
degree in auto refinishing. In December 1997, the owner of
the auto body shop where he had been working reported that
 GALLEGOS-VASQUEZ v. HOLDER 2993
Gallegos-Vasquez had been a good worker, writing in a letter,
“He is a very dedicated & productive employee. He is also [a]
very dependable hard working family man.”

Gallegos-Vasquez was at a 7-11 convenience store in Fern-
dale, Washington, near Bellingham, on October 15, 1997,
when a Border Patrol Agent approached him and asked for his
identification. The Agent determined that Gallegos-Vasquez
was possibly removable and placed him in detention.

On November 15, 1997, Gallegos-Vasquez was served with
a Notice to Appear charging that he was removable under 8
U.S.C. § 1227(a)(2)(A)(ii), which provides that an alien is
removable if he has been convicted of two crimes involving
moral turpitude not arising out of a single scheme of criminal
misconduct. The bases for this charge were Gallegos-
Vasquez’s 1989 misdemeanor convictions for receiving
known stolen property and for taking a vehicle without con-
sent or vehicle theft. On December 16, Gallegos-Vasquez was
served with an additional Notice to Appear, this one charging
that he was removable under 8 U.S.C. § 1227(a)(2)(A)(i),
which provides that an alien is removable if he has been con-
victed of a crime involving moral turpitude punishable by at
least one year imprisonment and committed within five years
of the date of admission. The basis for this charge was
Gallegos-Vasquez’s 1992 burglary conviction.

On January 2, 1998, the IJ found Gallegos-Vasquez remov-
able based on his burglary conviction. The IJ did not rely on
his two misdemeanor convictions to support his finding of
removability. The IJ pretermitted Gallegos-Vasquez’s appli-
cation for cancellation of removal because he failed to satisfy
the requirement of seven years’ continuous residence under 8
U.S.C. § 1229b(a)(2). Although Gallegos-Vasquez had been
physically present in the United States for more than seven
years, under IIRIRA’s stop-time provision his continuous res-
idence terminated on June 16, 1989, the date of the burglary
to which he had pled guilty. See 8 U.S.C. § 1229b(d)(1).
2994 GALLEGOS-VASQUEZ v. HOLDER
The BIA affirmed the order of removal on October 1, 1998.
The BIA found Gallegos-Vasquez removable based both on
his misdemeanor convictions and on his burglary conviction.
The BIA noted that the IJ had not relied on the misdemeanor
convictions, but wrote, “[B]ecause the respondent, through
counsel, admitted to the facts underlying these charges, we
sustain these charges.”

For reasons not apparent from the record, Gallegos-
Vasquez was not actually removed. In January 1999, after
release from INS custody, he moved with his family to Escon-
dido, California. In April, 2001, he got a job with First Class
Collision, another auto body shop, where he has worked ever
since. The Vice President of First Class Collision wrote a let-
ter to Gallegos-Vasquez’s lawyer in June 2003 describing
Gallegos-Vasquez as “an excellent employee.”

On October 21, 2002, Gallegos-Vasquez moved the BIA to
reopen his proceedings on the ground that the Supreme
Court’s decision in INS v. St. Cyr, decided in 2001, gave him
the right to apply for relief under § 212(c). The BIA reopened
proceedings and remanded to an IJ to determine whether
Gallegos-Vasquez was eligible for § 212(c) relief under St.
Cyr. On September 19, 2003, the IJ held that Gallegos-
Vasquez was not eligible for § 212(c) relief. The IJ assumed
that Gallegos-Vasquez’s 1989 misdemeanor convictions were
based on guilty pleas, but the IJ concluded that Gallegos-
Vasquez had no settled expectation that he would be entitled
to § 212(c) relief when he entered those pleas.

On March 30, 2005, the BIA affirmed. It first held that
Gallegos-Vasquez had not established that his 1989 misde-
meanor convictions were based on guilty pleas because the
conviction documents for those convictions were not in the
record. It then held, even assuming Gallegos-Vasquez’s mis-
demeanor convictions were based on guilty pleas, that he did
not have a settled expectation of the availability of discretion-
ary relief under § 212(c) when he entered the pleas.
 GALLEGOS-VASQUEZ v. HOLDER 2995
Gallegos-Vasquez timely petitioned for review.

II. Standard of Review

When the BIA conducts an independent review of the IJ’s
findings we review the BIA’s findings and not those of the IJ.
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004), cert.
denied, Simeonov v. Ashcroft, 543 U.S. 1052 (2005). To the
extent that the BIA incorporates the IJ’s decision as its own,
we review the IJ’s decision. Sinotes-Cruz v. Gonzales, 468
F.3d 1191, 1194 (9th Cir. 2006).

We review factual findings of the BIA for substantial evi-
dence. Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir.
2004). We will uphold them unless the evidence compels a
contrary result. Id.

Whether application of IIRIRA is impermissibly retroactive
presents a question of law that we review de novo. Sinotes-
Cruz, 468 F.3d at 1194.

III. Jurisdiction

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D),
which provides that “[n]othing in subparagraph (B) or (C), or
in any other provision of this chapter (other than this section)
which limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or questions of
law raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section.” The ques-
tions presented in this petition are reviewable questions of
law. See Sinotes-Cruz, 468 F.3d at 1194.

IV. Discussion

The government makes two arguments. First, it contends
that Gallegos-Vasquez challenges only the decision of the IJ
in his opening brief to us. It argues that Gallegos-Vasquez has
2996 GALLEGOS-VASQUEZ v. HOLDER
thereby waived any challenge to the BIA’s decision. Second,
the government argues on the merits that Gallegos-Vasquez is
ineligible for a § 212(c) waiver under St. Cyr.

A. Waiver

[1] We can make short work of the government’s first
argument. It is true that Gallegos-Vasquez focuses virtually
all of his argument in his opening brief on the decision of the
IJ rather than that of the BIA. But his argument is not exclu-
sively aimed at the decision of the IJ. On page eight of his
opening brief, he argues that “the Immigration Court and the
BIA” both erred in one respect. Further, to the degree that
Gallegos-Vasquez’s opening brief mistakenly focuses on the
IJ’s decision, the government was not misled as to the sub-
stance of his arguments. We therefore conclude that Gallegos-
Vasquez has not waived his challenge to the decision of the
BIA.

B. Availability of Section 212(c) Relief under St. Cyr

The BIA based its decision on two grounds. First, it con-
cluded that there was insufficient evidence that Gallegos-
Vasquez pled guilty to his 1989 misdemeanor convictions.
Second, it concluded that even if Gallegos-Vasquez pled
guilty to his misdemeanor convictions, he did not have a set-
tled expectation of the availability of § 212(c) relief when he
entered his pleas. We consider these two grounds in turn.

1. Evidence of Guilty Pleas

[2] The foundation of the Supreme Court’s decision in St.
Cyr is its conclusion that when aliens plead guilty to crimes,
they do so in reliance on the immigration consequences of
their pleas based on the law as it then exists. See St. Cyr, 533
U.S. at 322. If Gallegos-Vasquez was convicted of his 1989
misdemeanors after trials rather than pleas, St. Cyr does not
 GALLEGOS-VASQUEZ v. HOLDER 2997
help him. See Armendariz-Montoya v. Sonchik, 291 F.3d
1116, 1121-22 (9th Cir. 2002).

[3] The government argues that Gallegos-Vasquez failed to
prove that his 1989 misdemeanor convictions were based on
guilty pleas. See 8 C.F.R. § 1240.8(d) (2005) (alien “shall
have the burden of establishing that he or she is eligible for
any requested benefit or privilege”). The government points
out that the conviction documents are not in the record and
contends that Gallegos-Vasquez never affirmatively stated
that the convictions were based on guilty pleas.

[4] Contrary to the government’s contention, Gallegos-
Vasquez said, through counsel, at the hearing before the IJ
that his misdemeanor convictions were based on pleas. The IJ
asked Gallegos-Vasquez’s counsel to confer with Gallegos-
Vasquez to determine if he knew what a guilty plea was and
if he remembered making such pleas. Counsel responded with
the following proffer from Gallegos-Vasquez:

He basically proffered that all his convictions
were through plea. He states that he does know what
his trial is. The trial is when there is [sic] 12 people
in a jury. I asked him them [sic] if there was any tes-
timony taken, and he said there wasn’t.

So I believe he knows what a trial is, and I believe
he knows that he, oh, there’s another thing. He said
the reason why he took the plea, is was [sic] because
he was given such a short time. And so I believe he
knows what a plea is, he knows what a trial is, and
that he is competent to explain that he only received
pleas.

[5] We regard Gallegos-Vasquez’s statements through
counsel as clear evidence that his misdemeanor convictions
were based on guilty pleas. We recognize that there was no
documentary evidence of Gallegos-Vasquez’s misdemeanor
2998 GALLEGOS-VASQUEZ v. HOLDER
convictions in the record before the IJ and the BIA in his
reopened proceedings. But the BIA was willing in 1998, at the
urging of the government, to enter a removal order against
Gallegos-Vasquez based on these convictions when the only
evidence was Gallegos-Vasquez’s statements through counsel
admitting the facts underlying them. The government cannot
now contend that Gallegos-Vasquez’s statements through
counsel about these same convictions should be disregarded.

[6] Gallegos-Vasquez’s statements are conclusively sup-
ported by the very brief periods of time between his offenses
and his convictions. The BIA found in its 1998 removal order
that Gallegos-Vasquez’s March 15, 1989, misdemeanor con-
victions for receiving known stolen property and hit and run
with property damage were based on crimes committed on
March 2, 1989. His July 31, 1989, misdemeanor conviction
for taking a vehicle without consent or vehicle theft was based
on a crime committed on July 27, 1989. At oral argument
before us, the government could not explain how a criminal
trial could have been concluded thirteen days after the crimes
in the first case, and four days after the crime in the second
case. The simple answer is that they could not have been.

[7] We therefore conclude that the evidence compels the
finding that Gallegos-Vasquez pled guilty in March and July
1989 to misdemeanor convictions for receiving known stolen
property and for taking a vehicle without consent or vehicle
theft.

2. Settled Expectation of Availability of Section 212(c)
Relief

[8] Under pre-1996 immigration law, the Attorney General
had broad discretion to grant relief to aliens who were deport-
able due to criminal convictions. See St. Cyr, 533 U.S. at 294-
295. This relief was provided by § 212(c) of the INA, as then
codified at 8 U.S.C. § 1182(c), which stated:
 GALLEGOS-VASQUEZ v. HOLDER 2999
Aliens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are
returning to a lawful unrelinquished domicile of
seven consecutive years, may be admitted in the dis-
cretion of the Attorney General.

8 U.S.C. § 1182(c) (1990) (repealed 1996). Although literally
only applicable to exclusion proceedings, the BIA also pro-
vided § 212(c) relief in deportation proceedings to permanent
residents with unrelinquished domicile of seven consecutive
years. See St. Cyr, 533 U.S. at 295 (quoting Matter of Silva,
16 I. & N. Dec. 26, 30 (BIA 1976)); 8 C.F.R. § 1212.3; cf.
Abebe v. Mukasey, 554 F.3d 1203, 1207 (9th Cir. 2009) (en
banc) (“nothing we say today casts any doubt on [8 C.F.R.
§ 1212.3]”). Prior to 1996, § 212(c) relief was unavailable
only to aggravated felons who had served a term of imprison-
ment of at least five years. See St. Cyr, 533 U.S. at 297 (citing
104 Stat. 5052). Access to § 212(c) relief was important to
aliens with criminal convictions because IJs and the BIA
granted over half of the applications for relief. Id. at 296 n.5.

[9] In 1996, Congress passed the Antiterrorism and Effec-
tive Death Penalty Act (“AEDPA”) and then passed IIRIRA.
Section 440(d) of AEDPA narrowed the availability of
§ 212(c) relief. See St. Cyr, 533 U.S. at 297 (citing 110 Stat.
1277). IIRIRA repealed § 212(c) altogether and replaced it
with cancellation of removal, which provides relief to a nar-
rower class of removable aliens. Id. (citing 110 Stat. 3009-
597).

In St. Cyr, the Supreme Court addressed the question of
whether IIRIRA applied retroactively to deny § 212(c) relief
to aliens who had, before the passage of AEDPA and IIRIRA,
pled guilty to offenses making them deportable (or, in the lan-
guage of IIRIRA, removable). St. Cyr was a Haitian national
who became a lawful permanent resident in 1986. Id. at 293.
Ten years later, before Congress passed AEDPA or IIRIRA,
3000 GALLEGOS-VASQUEZ v. HOLDER
he pled guilty to a deportable offense. Id. Removal proceed-
ings were begun after the passage of both statutes. The gov-
ernment argued that the Attorney General no longer had the
power to grant § 212(c) relief. Id.

[10] The Court held that St. Cyr was eligible for § 212(c)
relief despite the repeal of § 212(c) by IIRIRA. Applying the
two-step retroactivity analysis in Landgraf v. USI Film Prod-
ucts, 511 U.S. 244 (1994), the Court held (1) that IIRIRA is
ambiguous regarding retroactivity, St. Cyr, 533 U.S. at 314-
320; and (2) that application of IIRIRA to aliens who pled
guilty before its passage has an impermissible retroactive
effect. Id. at 320-26. The Court reasoned that aliens were well
aware of the immigration consequences of criminal convic-
tions and thus relied on the possibility of obtaining § 212(c)
relief when they agreed to plead guilty. Id. at 325. The Court
wrote that without clear Congressional intent, courts will not
read a statute to violate the “reasonable reliance[ ] and settled
expectations” of access to § 212(c) relief that informed the
aliens’ decisions to plead guilty. Id. at 321 (quotations omit-
ted). The Court held that Ҥ 212(c) relief remains available for
aliens, like respondent, whose convictions were obtained
through plea agreements and who, notwithstanding those con-
victions, would have been eligible for § 212(c) relief at the
time of their plea under the law then in effect.” Id. at 326.

When St. Cyr pled guilty, his plea made him immediately
deportable. His reliance at the time of his plea on the avail-
ability of relief under § 212(c) was therefore evident. But we
have held that an alien does not need to have been immedi-
ately deportable at the time of his or her plea to benefit from
the reliance interest articulated in St. Cyr. In United States v.
Leon-Paz, 340 F.3d 1003 (9th Cir. 2003), the petitioner had
entered the United States as a special agricultural worker in
1988 with lawful temporary resident status. Like Gallegos-
Vasquez, he automatically adjusted to lawful permanent resi-
dent status in late 1990. He pled guilty to burglary in 1995
and was sentenced to four years in state prison.
 GALLEGOS-VASQUEZ v. HOLDER 3001
When Leon-Paz pled guilty in 1995, his burglary convic-
tion did not render him deportable because his four-year sen-
tence was insufficient to render his crime an aggravated
felony for immigration purposes. Id. at 1005. He was there-
fore not eligible for § 212(c) relief at that time because he was
not then deportable. The government instituted removal pro-
ceedings against him in 1997, after the passage of AEDPA
and IIRIRA. As a result of those statutes, his burglary convic-
tion now made him removable. The IJ advised him in his
removal proceedings that he was not eligible for relief under
§ 212(c). We disagreed with the IJ’s advice, holding that
Leon-Paz was eligible for § 212(c) relief in that proceeding.

We wrote:

While it is true that in 1995 Leon did not actually
plead to what was an aggravated felony, whereas St.
Cyr had done so, it is also true that Leon had two
bulwarks to protect himself against attacks on his
residence in this country. The first was the fact that
he had pled to a crime that was below the aggravated
felony threshold, and the second was § 212(c) itself
in case the definition of aggravated felony changed
as it often had and has.

Id. at 1006. AEDPA took down the first bulwark by providing
that § 212(c) was not available to aggravated felons. IIRIRA
took down the second bulwark by changing the definition of
aggravated felony from a crime in which the sentence was at
least five years to one in which the sentence was at least one
year, and by replacing § 212(c) with cancellation of removal.
The combination of AEDPA and IIRIRA made Leon-Paz
removable. Once he was removable, the protection of
§ 212(c) became critically important. However, we wrote that
even at the time of his plea Leon-Paz “could rely on the fact
that he had a source of protection should his crime be
declared an aggravated felony in the future. He, like St. Cyr,
3002 GALLEGOS-VASQUEZ v. HOLDER
was entitled to the continued protection of § 212(c).” Id. at
1007.

In July 1989, Gallegos-Vasquez pled guilty to the misde-
meanor of taking a vehicle without consent or vehicle theft.
The plea had two consequences. First, because the vehicle
conviction was Gallegos-Vasquez’s second conviction for a
crime involving moral turpitude, he was immediately remov-
able under 8 U.S.C. § 1227(a)(2)(A)(ii). Second, because the
vehicle conviction was his third misdemeanor conviction, the
Attorney General now had discretionary authority to termi-
nate his lawful temporary resident status. 8 U.S.C.
§ 1160(a)(3)(B)(ii).

[11] At the time of his plea, Gallegos-Vasquez was not
immediately eligible for § 212(c) relief. He was not a lawful
permanent resident, though he would automatically become
one at the end of 1990 if the Attorney General did not choose
to exercise his authority to terminate his lawful temporary sta-
tus. He also had not yet achieved an unrelinquished domicile
of seven years in the United States, though he would do so in
1994. Thus, at the time of his plea, he could anticipate that if
the Attorney General refrained from acting until the end of
1990, and if he stayed in the United States until 1994, he
would become eligible for § 212(c) relief.

[12] Gallegos-Vasquez is in the same position as the peti-
tioner in Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir.
2006) (en banc). Perez-Enriquez was admitted to the United
States in 1988 as a lawful temporary resident under the SAW
program. He pled guilty to a deportable drug offense in 1989,
before he achieved lawful permanent resident status and
before he achieved seven years of unrelinquished domicile.
The Attorney General did not choose to exercise his authority
to terminate Perez-Enriquez’s lawful temporary resident sta-
tus, although he had the power to do so. See 8 U.S.C.
§§ 1160(a)(3)(B)(ii) (Attorney General can deny adjustment
to permanent status if alien commits act that makes alien inad-
 GALLEGOS-VASQUEZ v. HOLDER 3003
missible), 1182(a)(2)(A)(i)(II) (alien who has committed
offense relating to controlled substance inadmissible). Perez-
Enriquez automatically adjusted to lawful permanent resident
status on December 1, 1990. He achieved seven years of
unrelinquished domicile in 1995. The government initiated
removal proceedings against him in 2001.

The question directly before us was not the availability of
relief under § 212(c). Rather, the question was whether Perez-
Enriquez’s date of admissibility was the date of his admission
as a lawful temporary resident or the date of his adjustment
to lawful permanent resident status. But at stake in the ques-
tion was whether Perez-Enriquez would be treated in the
removal proceedings as a lawful temporary or a lawful perma-
nent resident. The distinction mattered because if Perez-
Enriquez was a lawful permanent resident, he could apply for
relief under § 212(c). We wrote that if Perez-Enriquez were
a lawful permanent resident, then “the relevant protection is
that provided by Section 212(c) and St. Cyr because he pled
guilty to his drug offense in 1989, prior to the adoption of
three statutes limiting the availability of relief under Section
212(c).” Id. at 1011. We held that Perez-Enriquez was a law-
ful permanent resident, which meant that he was entitled to
§ 212(c) relief.

[13] Like Perez-Enriquez, Gallegos-Vasquez was admitted
as a lawful temporary resident in the late 1980s. Also like
Perez-Enriquez, Gallegos-Vasquez pled guilty to a deportable
offense in 1989, before he had adjusted to lawful permanent
status and before he had achieved seven years of unrelinqui-
shed domicile. We conclude that Gallegos-Vasquez, like
Perez-Enriquez, had a settled expectation of the availability of
§ 212(c) relief at the time he pled guilty to his deportable
offense in September 1989.

The government makes two arguments against this conclu-
sion. First, the government argues that the fact that Gallegos-
Vasquez was not a lawful permanent resident at the time he
3004 GALLEGOS-VASQUEZ v. HOLDER
pled guilty is itself sufficient to deprive him of a settled
expectation under St. Cyr. This argument, however, is in
effect the same argument we rejected in Leon-Paz — that
because Gallegos-Vasquez’s guilty plea did not make him
immediately eligible for § 212(c) relief he did not have a set-
tled expectation of the availability of such relief.

Second, the government argues that because Gallegos-
Vasquez’s third misdemeanor conviction gave the Attorney
General the discretionary authority to terminate his temporary
resident status, he could not have had a settled expectation
that he would become a lawful permanent resident and thus
become eligible for § 212(c) relief. The fact that Gallegos-
Vasquez’s adjustment to lawful permanent resident status was
subject to the Attorney General’s discretion, however, does
not mean that he could not have had a settled expectation of
the likelihood of adjustment to such status and thus the avail-
ability of § 212(c) relief. As the Supreme Court explained in
St. Cyr, “There is a clear difference, for the purposes of retro-
activity analysis, between facing possible deportation and fac-
ing certain deportation.” St. Cyr, 533 U.S. at 325.

[14] Gallegos-Vasquez pled guilty in 1989 based on the
reasonable (and ultimately realized) expectation that the
Attorney General would not decide to terminate his temporary
resident status, and that § 212(c) relief would be available if
he achieved seven years of unrelinquished residence. Had
Gallegos-Vasquez faced the certainty that § 212(c) relief
would not be available, he may well have elected to force the
government to go to trial. See St. Cyr, 533 U.S. at 325
(“Because respondent, and other aliens like him, almost cer-
tainly relied upon that likelihood [of § 212(c) relief] in decid-
ing whether to forgo their right to a trial, the elimination of
any possibility of § 212(c) relief by IIRIRA has an obvious
and severe retroactive effect.”). We therefore hold that
Gallegos-Vasquez had a settled expectation, within the mean-
ing of St. Cyr, of the availability of § 212(c) relief when he
pled guilty to the vehicle misdemeanor in September 1989.
 GALLEGOS-VASQUEZ v. HOLDER 3005
Conclusion

We hold that the evidence compels the finding that
Gallegos-Vasquez entered a plea of guilty in September 1989
for the misdemeanor that rendered him subject to deportation.
We hold, further, that when he pled guilty he had a settled
expectation of the availability of § 212(c) relief within the
meaning of St. Cyr. We therefore grant the petition and
remand for further proceedings consistent with this opinion.

PETITION GRANTED; REMANDED.