United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 23, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60878
_____________________
PETRA CARRANZA-DE SALINAS,
also known as Petra Rodriguez-Salinas,
Petitioner,
versus
ALBERTO GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
_________________________________________________________________
Petition for Review of an Order of
the Board of Immigration Appeals
__________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The Appellant, Petra Carranza-de Salinas (“Carranza”),
petitions for review of the decision of the Board of Immigration
Appeals (“BIA”) holding that she is ineligible to apply for relief
from deportation based on former § 212(c) of the Immigration and
Nationality Act. Carranza claims that she deferred her application
for § 212(c) relief in order to establish a stronger record of
rehabilitation, in reliance on the continued availability of §
212(c) relief. Because the BIA erred in finding her ineligible to
apply for § 212(c) relief without allowing her the opportunity to
demonstrate that her actual, subjective reliance on the prior state
of the law caused her to delay her application, we GRANT the
petition for review, VACATE the BIA’s order, and REMAND.
I.
Carranza is a native and citizen of Mexico. She became a
lawful permanent resident of the United States on August 29, 1985.
On August 16, 1993, after a trial by jury, Carranza was convicted
in Louisiana state court of possessing marijuana with intent to
distribute. She claims she did not immediately apply for § 212(c)
discretionary relief after her conviction because she intended to
apply during her deportation proceedings, at which time she would
be able to show a more extensive record of rehabilitation and
community ties. In 1996, Congress passed the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”), which repealed
§ 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(c) (1994).
In 1997, a Notice to Appear was issued, charging Carranza with
removability on the basis of her conviction for the drug offense.
The INS further charged Carranza as removable for having been
convicted of a substance abuse offense. During a hearing on
January 9, 1999, an Immigration Judge (“IJ”) found that Carranza’s
conviction remained in effect for immigration purposes and
sustained both charges of removal. At that hearing, Carranza
sought a waiver of deportation under former § 212(c) of the INA.
The INS conceded her eligibility for § 212(c) relief and a date was
set for the merits hearing.
On April 14, 2003, the date of the merits hearing, the INS
challenged Carranza’s eligibility for § 212(c) relief because she
2
had declined a plea agreement and had elected to be tried by a
jury. Carranza’s attorney asked for a continuance to prepare to
respond on that issue. The IJ denied the request and, apparently
without hearing arguments on Carranza’s eligibility, ordered her
removed.1 Carranza appealed to the BIA. On March 11, 2004, the
BIA issued an order remanding to the IJ for the sole purpose of
preparing a written decision.
On January 10, 2005, in compliance with this directive, the IJ
issued a written order formalizing the earlier findings.2 On
August 23, 2005, the BIA dismissed Carranza’s appeal, holding that
the Third Circuit case, Ponnapula v. Ashcroft, 373 F.3d 480 (3d
Cir. 2004), that she cited in support of her argument for
eligibility was not applicable to cases arising within the Fifth
Circuit’s jurisdiction,3 and that Carranza had cited no binding
1
The IJ apparently found that it was “fatal to this
respondent’s case that she was convicted by jury” and that it was
“in the best interest of judicial efficiency to at this point find
that respondent is not eligible for relief and let the Appeals
Court make a decision as to whether she should be eligible or not.”
2
The IJ stated that “[t]he Court certainly believes ... that
there are compelling arguments that have been made by Ms. Carranza
during the course of these proceedings that would permit the Court
to allow her to pursue a § 212(c) waiver in this matter, even
though she was found guilty by a jury, particularly given that
there is no case law out there that would necessarily prohibit her
from pursuing said remedy.” The IJ concluded, however, that given
that the matter would be appealed by either side, the court would
decline to decide the question of first impression and held that
Carranza was not, under the current case law, eligible for § 212(c)
relief.
3
In Ponnapula, the Third Circuit held that the IIRIRA repeal
of § 212(c) was impermissibly retroactive with respect to an alien
3
precedent supporting a motion to remand. The BIA further noted
that recently enacted regulations limit § 212(c) relief to aliens
who were convicted by plea agreement. Carranza timely petitioned
for review.
II.
On appeal, Carranza again argues that she should be eligible
to apply for § 212(c) relief, despite the enactment of the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”) and IIRIRA. We
have jurisdiction to review this matter under § 242 of the INA, 8
U.S.C. § 1252, as amended by the REAL ID Act of 2005. Under the
amended Act, this court may review constitutional questions and
questions of law.
This court reviews the BIA’s conclusions of law de novo,
although it defers to the BIA’s reasonable interpretation of
immigration regulations. See Lopez-Gomez v. Ashcroft, 263 F.3d
442, 444 (5th Cir. 2001). No deference is owed to the BIA’s
conclusions of law regarding the retroactive availability of §
212(c) relief. Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th
Cir. 2006).
who had rejected a plea agreement and was convicted by a jury prior
to IIRIRA’s enactment. Id. at 500.
4
III.
Under § 212(c) of the INA, the Attorney General had “broad
discretion to admit excludable aliens.”4 INS v. St. Cyr, 533 U.S.
289, 294-95 (2001). As deportable offenses have historically been
defined broadly, “the class of aliens whose continued residence in
this country has depended on their eligibility for § 212(c) relief
is extremely large, and ... a substantial percentage of their
applications for § 212(c) relief have been granted.5 Id. at 295-
96. Between 1990 and 1996, Congress enacted three statutes,
“reduc[ing] the size of the class of aliens eligible for such
discretionary relief.” Id. at 297. In 1990, Congress eliminated
the possibility of § 212(c) relief for “anyone convicted of an
aggravated felony who had served a term of imprisonment of at least
five years.” Id. On April 24, 1996, Congress adopted § 440(d) of
AEDPA, which “identified a broad set of offenses for which
convictions would preclude such relief.” Id. Later that same
year, Congress passed IIRIRA, which “inter alia, repealed § 212(c)
4
Section 212(c), codified at 8 U.S.C. § 1182(c), stated:
“Aliens lawfully admitted for permanent residence who temporarily
proceed 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 discretion of the
Attorney General ....” Section 212(c) was interpreted by the BIA
“to authorize any permanent resident with a lawful unrelinquished
domicile of seven consecutive years to apply for discretionary
waiver from deportation.” INS v. St. Cyr, 533 U.S. 289, 295
(2001).
5
Between 1989 and 1995, “212(c) relief was granted to over
10,000 aliens.” Id. at 296.
5
... and replaced it with a new section that gives the Attorney
General the authority to cancel removal for a narrow class of
inadmissible or deportable aliens ....” Id. at 297. This class
does not include anyone previously convicted of an “aggravated
felony.” Id. In short, after AEDPA and IIRIRA, Carranza, who had
been eligible for such relief, was now excluded from the class.
In 2001, however, the Supreme Court decided INS v. St. Cyr, in
which it considered whether an alien who pled guilty to an
aggravated felony prior to the repeal of § 212(c) was still
eligible to apply for a waiver of deportation notwithstanding the
change in the applicable law. Applying the test laid out in
Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Court first
determined that Congress had not clearly expressed the intent to
have IIRIRA § 304(b) apply retroactively. The Court then
considered “the second step of Landgraf’s retroactivity analysis to
determine whether depriving removable aliens of consideration for
§ 212(c) relief produces an impermissible retroactive effect for
aliens who ... were convicted pursuant to a plea agreement at a
time when their plea would not have rendered them ineligible for §
212(c) relief.” St. Cyr, 533 U.S. at 320.
Applying a “commonsense, functional judgment about whether the
new provision attaches new legal consequences to events completed
before its enactment,” id. at 321 (internal quotation marks and
citation omitted), the Court found that the elimination of § 212(c)
relief for people who entered into plea agreements clearly
6
“attaches a new disability, in respect to transactions or
considerations already past.” Id. (internal quotation marks and
citation omitted). The Court reasoned that as plea agreements
involve a quid pro quo between a criminal defendant and the
government, to deprive the defendant of their continued eligibility
for § 212(c) relief after the government had received the benefit
of the plea bargain, “would surely be contrary to ‘familiar
considerations of fair notice, reasonable reliance, and settled
expectations.’” Id. at 323 (quoting Landgraf, 511 U.S. at 270).
Finding that aliens likely relied upon the significant likelihood
of receiving § 212(c) relief in choosing to forgo their right to
trial, the Court concluded that eliminating such relief “has an
obvious and severe retroactive effect.” Id. at 325. Consequently,
it held that St. Cyr was entitled to apply for relief under the
statute in effect at the time of his plea agreement.
IV.
St. Cyr, however, addressed IIRIRA’s retroactive effect only
in regard to aliens who pled guilty prior to the elimination of §
212(c) relief. In Hernandez-Castillo v. Moore, this court
considered whether a legal permanent resident who had been
convicted after a jury trial was eligible for § 212(c) relief under
St. Cyr, and we concluded that he was not. 436 F.3d 516, 520 (5th
Cir. 2006). In reaching this holding, the court adopted the
7
reasoning laid out by the Second Circuit in Rankine v. Reno, 319
F.3d 93 (2d Cir. 2003). The Rankine court stated that:
aliens who chose to go to trial are in a
different position with respect to IIRIRA than
aliens like St. Cyr who chose to plead guilty
.... First, none of these petitioners
detrimentally changed his position in reliance
on continued eligibility for § 212(c) relief
.... Second, the petitioners have pointed to
no conduct on their part that reflects an
intention to preserve their eligibility for
relief under § 212(c) by going to trial. If
they had pled guilty, petitioners would have
participated in the quid pro quo relationship,
in which a greater expectation of relief is
provided in exchange for foregoing a trial,
that gave rise to the reliance interest
emphasized by the Supreme Court in St. Cyr.
As the Court made clear, it was that reliance,
and the consequent change of immigration
status, that produced the impermissible
retroactive effect of IIRIRA. Here
petitioners neither did anything nor
surrendered any rights that would give rise to
a comparable reliance interest.
Hernandez-Castillo, 436 F.3d at 520 (quoting Rankine, 319 F.3d at
99-100) (internal citation omitted). Applying this reasoning, we
concluded “that the application of IIRIRA’s repeal of § 212(c) to
Hernandez-Castillo does not create an impermissible retroactive
effect.” Id.
After Hernandez-Castillo, this circuit requires an applicant
who alleges continued eligibility for § 212(c) relief to
demonstrate actual, subjective reliance on the pre-IIRIRA state of
the law to be eligible for relief from its retroactive application.
The applicant must show that he “detrimentally changed his position
8
in reliance on continued eligibility for § 212(c) relief” or that
he actively engaged in conduct that “reflect[ed] an intention to
preserve [his] eligibility for relief under § 212(c) ....” Id.
(quoting Rankine, 319 F.3d at 99-100). Because the reliance
demonstrated must be actual, the determination of retroactive
effect is made as to the individual applicant, not as to a group of
similarly-situated applicants. See id. (“[T]he application of
IIRIRA’s repeal of § 212(c) to Hernandez-Castillo does not create
an impermissible retroactive effect.”) (emphasis added).
V.
Carranza argues that IIRIRA is impermissibly retroactive with
respect to her case because she acted in reliance on the continuing
availability of § 212(c) when she made the decision to defer her
application for relief in order to establish a history of
rehabilitation.6
6
Carranza makes several other arguments for relief, all of
which are meritless. First, relying on the Fourth Circuit’s
decision in Olatunji v. Ashcroft, 387 F.3d 383, 389-91 (4th Cir.
2004), she contends that reliance is not a required part of the
retroactivity analysis. In the alternative, she argues that the
decision to go to trial itself demonstrates reliance, citing
Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004). Both of these
arguments are foreclosed by Hernandez-Castillo, which held that the
applicant must show actual reliance to demonstrate an impermissible
retroactive effect.
Finally, Carranza argues that where a legal permanent resident
awaits deportation proceedings, rather than affirmatively filing
for § 212(c) relief, reliance must be presumed, rather than actual.
Again, this seems contradictory to the express language of
Hernandez-Castillo, in which the panel made an individualized
determination of actual reliance with regard to Hernandez-Castillo,
who failed to demonstrate that he “did anything [or] surrendered
9
A.
At oral argument, the Government for the first time suggested
that Carranza failed to exhaust her administrative remedies with
respect to this argument. “Judicial review of a final removal order
is available only if the applicant has exhausted all administrative
remedies as of right.” Darwich v. Gonzalez, 2006 WL 2852926 at *1
(5th Cir. Oct. 3, 2006) (unpublished) (per curiam) (citing 8 U.S.C.
§ 1252(d)(1)). “An alien fails to exhaust his administrative
remedies with respect to an issue when the issue is not raised in
the first instance before the BIA - either on direct appeal or in
a motion to re-open.” Wang v. Ashcroft, 260 F.3d 448, 452 (5th
Cir. 2001).
Contrary to the Government’s assertion, however, Carranza
appears to have raised this argument, although in a less developed
form, before the BIA. In her appeal to the BIA, Carranza argued
that the logic of St. Cyr was not limited to cases in which an
alien had pled guilty, but could also apply in situations in which
an alien had proceeded to trial. Because this brief was filed
prior to this court’s decision in Hernandez-Castillo, Carranza
focused on the broader argument that the decision to go to trial
itself could create the reliance interest necessary to create an
any rights that would give rise to a ... reliance interest.”
Hernandez-Castillo, 436 F.3d at 520. The practical result of such
a presumption would be that IIRIRA would be impermissibly
retroactive to any legal permanent resident convicted by jury trial
prior to its passage, which would be contrary to both the analysis
and the result in Hernandez-Castillo.
10
impermissible retroactive effect. In support of this argument, she
quoted language from the Third Circuit opinion in Ponnapula,
holding that:
with respect to an alien who reasonably could
have relied on the potential availability of §
212(c) relief, application of the Landgraf
principles shows that IIRIRA section 304(b)
has an impermissible retroactive effect.
Moreover, on this record, where the petitioner
demonstrated clear and actual reliance on the
former statutory scheme in making the decision
to go to trial, there is a fortiori an
impermissible retroactive effect.
373 F.3d at 483. On this basis, Carranza argued to the BIA that
her case should be remanded to “to give her the opportunity to
demonstrate ... reliance, (if required), and thereafter to seek §
212(c) relief.”
Carranza did attempt, before the BIA, to argue that an
impermissible retroactive effect is triggered by a showing of
reliance and that she should be permitted to present evidence as to
her actual reliance before the IJ. Although Carranza’s theory of
reliance was modified after the panel holding in Hernandez-
Castillo, the BIA clearly had the opportunity to address her claim
that actual reliance by an alien on the continued availability of
§ 212(c) relief triggered an impermissible retroactive effect after
St. Cyr. The BIA declined to address this argument in any fashion,
finding itself bound by the limits of 8 C.F.R § 1003.44(a) and by
the absence of precedential authority from our court. We therefore
hold that the issue Carranza presents on this appeal has been
11
adequately exhausted before the BIA, and that we therefore have
jurisdiction to consider her appeal. We now turn to consider the
question whether Carranza has made a showing that the statute is
impermissibly retroactive with respect to her.
B.
In support of her argument that her decision to defer
application for § 212(c) relief provides a basis for showing actual
reliance, Carranza cites Restrepo v. McElroy, 369 F.3d 627 (2d Cir.
2004), a Second Circuit case decided after Rankine, in which the
court held that an applicant’s decision to postpone applying for §
212(c) relief to create a longer record of rehabilitation and
community ties may create a sufficient reliance interest to create
an impermissible retroactive effect of the statute.7
Restrepo argued that he had given up “something of value (the
opportunity to apply for § 212(c) relief immediately after his
conviction) in reliance on his ability to apply for § 212(c) relief
at a later time.” Id. at 633-34. In considering a § 212(c)
application, an immigration judge must weigh “‘the adverse factors
evidencing an alien’s undesirability as a permanent resident with
the social and humane considerations presented in his behalf.’”
Id. at 634 (quoting Lovell v. INS, 52 F.3d 458, 461 (2d. Cir.
1995)). “Favorable considerations include the duration of the
7
Restrepo’s eligibility for relief was eliminated by § 440(d)
of the AEDPA. IIRIRA applies only to deportation proceedings
instituted after April 1, 1997. Restrepo, 369 F.3d at 630 n.4.
12
alien’s residence in the country, his history of employment, the
existence of property or business ties, evidence of service to the
community, and proof of genuine rehabilitation if the alien has a
criminal record.” Id. (internal quotation marks and citation
omitted). Given the relevant factors, the Second Circuit concluded
that “an alien convicted of a deportable crime would be motivated
to wait as long as possible to file a 212(c) application in the
hope that he could build a better case of relief - one that shows
longer residence in the United States, deeper community ties, and,
perhaps most significantly, stronger proof of rehabilitation.” Id.
Of course, the decision to postpone the application would be
contingent on the applicant’s belief that “212(c) relief would
remain available later.” Id.
Analogizing to St. Cyr, the Restrepo court concluded that
[j]ust like the aliens in St. Cyr, who
sacrificed something of value - their right to
a jury trial, at which they could obtain an
outright acquittal - in the expectation that
their guilty pleas would leave them eligible
for § 212(c) relief, an alien like [Restrepo]
also sacrificed something - the shot of
obtaining § 212(c) relief by immediately
filing - in order to increase his chances of
obtaining such relief later on. Such an alien
conformed his or her conduct according to the
availability of relief, and therefore had
settled expectations that would be severely
upset were the AEDPA to be applied
retroactively.
13
Id. at 634-35 (internal quotation marks and citation omitted). The
court remanded the case to the district court8 to determine whether
Restrepo could “claim the benefit of his argument.” Id. at 633.
The Government argues that Restrepo is not representative of
the law of the Second Circuit, citing Rankine and Thom v. Ashcroft,
369 F.3d 158, 161-62 (2d Cir. 2004), for the proposition that an
alien convicted by jury trial is ineligible for § 212(c) relief.
Although the Government is correct that under Rankine (and
Hernandez-Castillo), an applicant cannot demonstrate eligibility
for § 212(c) relief merely on the basis that he or she chose to go
to trial, Rankine does not foreclose the applicant from presenting
other arguments in support of his or her claim for detrimental
reliance. The Restrepo panel itself devoted considerable space to
distinguishing Rankine, explaining that:
As in St. Cyr, aliens like Petitioner incurred
a heightened expectation of prospective relief
flowing from their choice to forgo building a
stronger record and filing at a later date.
Furthermore, while aliens who elected a jury
trial cannot plausibly claim they would have
acted any differently if they had known about
AEDPA, it is certainly plausible that aliens
who decided to forgo affirmatively filing a
212(c) application would have acted
differently if they had foreseen the AEDPA’s
enactment. Many might well have chosen
affirmatively to file the “weaker,” but still
valid, application. To the extent that aliens
8
Restrepo raised these arguments through a habeas petition
pursuant to 28 U.S.C. § 2241. The subsequent enactment of the REAL
ID Act of 2005 forecloses habeas review of removal orders and
provides that a petition for review is the sole and exclusive means
of judicial review for all removal orders.
14
like Petitioner detrimentally adopted their
positions in reliance of [sic] their
expectation of continued eligibility for
212(c) relief, the factors considered in
Rankine appear to weigh against proscribing
such relief retroactively.
Restrepo, 369 F.3d at 637. Contrary to the Government’s position,
Restrepo was not merely an aberration. The Thom court, while
holding that the decision to contest criminal charges at trial does
not give rise to reasonable reliance, also noted that Thom did not
“claim any other basis for such a reliance or expectation” (citing
Restrepo), before holding that IIRIRA and the AEDPA could be
applied retroactively to him.9 Thom, 329 F.3d at 163.10
C.
We find the reasoning of the Restrepo Court persuasive and see
no need to create a circuit split on this issue. Before the
enactment of AEDPA and IIRIRA, the BIA itself recognized and
endorsed a “waiting strategy” for aliens facing deportation. In
Matter of Gordon, 17 I. & N. Dec. 389 (BIA 1980), the District
9
The Government also notes that the Hernandez-Castillo court
rejected Hernandez’s suggestion that he be granted the opportunity
to show that he rejected a guilty plea and elected to be tried by
jury on the basis of the future availability of § 212(c) relief.
The Government correctly explains that the decision to stand trial
alone has no impact on the alien’s immigration status. While this
is a persuasive argument against finding impermissible
retroactivity on the basis of an applicant’s decision to go to
trial, it does not speak to the separate reliance analysis of the
decision to postpone the § 212(c) application.
10
Additionally, the Thom opinion was authored by the judge who
wrote Restrepo, which belies the argument that Restrepo was
thought by Thom to be an opinion of questionable authority.
15
Director sent letters to convicted aliens not yet involved in
deportation proceedings, encouraging them to make advance
applications for § 212(c) relief. An alien applied and the INS
rejected her application. On appeal, the BIA set aside this
determination, holding that the Director had unfairly induced the
application and observing that
[c]onfined aliens and those who have recently
committed criminal acts will have a more
difficult task in showing that discretionary
relief should be exercised in their behalf
than aliens who have committed the same
offenses in the more distant past. Common
sense and prudence suggest that a recently
convicted alien should prefer to let a
considerable time elapse before offering to
demonstrate rehabilitation.
Id. at 391-92 (internal quotation marks and citation omitted). The
fact that the BIA effectively encouraged aliens to wait for the
initiation of deportation proceedings to apply defensively supports
the reasonableness of a deferment strategy, dependent on the
continued availability of § 212(c) relief. The disruption of this
strategy would be contrary to the touchstone considerations of
statutory retroactivity, that is “fair notice, reasonable reliance,
and settled expectations.” Martin v. Hadix, 527 U.S. 343, 358
(1999) (quoting Landgraf, 511 U.S. at 270).11
11
At oral argument, the Government argued for the first time
that this appeal is controlled by the Supreme Court’s decision in
Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422 (2006). We find this
case distinguishable. Unlike Fernandez-Vargas, whose only argument
was that the law governing his removal, IIRIRA § 241(a)(5), became
less favorable to him while he was illegally present in this
country, Carranza, a legal permanent resident, contends that she
16
VI.
Carranza claims that she affirmatively chose not to apply for
§ 212(c) relief immediately after her conviction, but instead to
wait until deportation proceedings were initiated so as to have
time to establish her rehabilitation and ties to the community.12
Because the IJ declined to permit Carranza to make a record on her
retroactivity claim, we can reach no holding on the merits of her
case. If, however, Carranza can demonstrate on remand that she
specifically relied on the continued availability of § 212(c)
relief in delaying her application while developing a record of
rehabilitation. We again join the Second Circuit, which considered
the effect of Fernandez-Vargas on its earlier holdings and
concluded that the genesis of the case law “makes clear that the
continued availability of § 212(c) relief depends on the reliance
of those now seeking the benefit of that relief.” Wilson v.
Gonzales, –- F.3d –-, 2006 WL 3541717 at * 9 (2d Cir. Dec. 7,
2006). It is “not enough for the alien to profess his unilateral
assumption about the continued validity of prior law,” id., for
“[i]f every time a man relied on existing law in arranging his
affairs, he were made secure against any change in legal rules, the
whole body of our law would be ossified forever.” Fernandez-
Vargas, 126 S.Ct. at 2433 (citation omitted). Instead, to
demonstrate impermissible retroactivity, an applicant must show
that he detrimentally changed his position in reliance on continued
eligibility for § 212(c) relief” or that he actively engaged in
conduct that “reflect[ed] an intention to preserve [his]
eligibility for relief under § 212(c) ....” Hernandez-Castillo,
436 F.3d at 520 (quoting Rankine, 319 F.3d at 99-100). Fernandez-
Vargas does not, therefore, preclude Carranza from raising her
claim that she forwent submitting an immediate application for §
212(c) relief in actual reliance on the reasonable belief that such
relief would still be available at the time of her deportation
proceeding, and that her application would be improved by its
deferral.
12
In the intervening period, Carranza claims to have had her
conviction set aside under a rehabilitation statute. She also
claims that she has two U.S. citizen children, owns property, has
been steadily employed, and has paid her taxes.
17
affirmatively decided to postpone her § 212(c) application to
increase her likelihood of relief, then she has, under Hernandez-
Castillo, established a reasonable “reliance interest” in the
future availability of § 212(c) relief comparable to that of the
applicants in St. Cyr and she is entitled to make her application
for relief. We therefore GRANT the petition for review, VACATE the
BIA’s order, and REMAND this case to the BIA for further
proceedings not inconsistent with this opinion.
PETITION GRANTED, VACATED and REMANDED.
18