In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1354 & 11-1243
JORGE S OLIS-C HAVEZ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A037-116-580
A RGUED O CTOBER 1, 2010—D ECIDED O CTOBER 25, 2011
Before P OSNER, K ANNE, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Jorge Solis-Chavez is a native of
Guatemala who has been a lawful permanent resident
in the United States since 1980. In 2007 he faced removal
as a result of a 1989 Illinois conviction for sexual abuse
of a minor. He initially argued that he was not subject
to removal because the judge who convicted and sen-
tenced him issued a judicial recommendation against de-
portation (“JRAD”). If valid, a JRAD prohibits the De-
2 Nos. 10-1354 & 11-1243
partment of Homeland Security (“DHS”) from using a con-
viction as a basis for removing an alien. Here, the JRAD
would have provided a complete defense to removal.
But before the Immigration Judge (“IJ”) rendered a deci-
sion, Solis-Chavez’s attorney conceded, without con-
sulting his client, that the JRAD was invalid because
it was entered outside the 30-day postsentencing
window specified in the JRAD statute.
Shortly thereafter, Solis-Chavez retained new counsel
and sought to revive the JRAD claim. The Board of Im-
migration Appeals (“BIA”) held that prior counsel had
waived the issue. Solis-Chavez petitioned for review. At
oral argument we suggested that counsel’s concession
before the IJ was uninformed and Solis-Chavez might
seek to reopen his case based on ineffective assistance
of counsel. Solis-Chavez promptly moved to reopen, but
the BIA denied the motion. The Board held that the
concession was not prejudicial because the JRAD was
untimely and therefore invalid. Solis-Chavez again peti-
tioned for review, and we consolidated the petitions
for decision.
We now grant the petitions and remand to the BIA for
further proceedings. The JRAD was valid. Although
it was entered about a month outside the 30-day
postsentencing window, the state-court record confirms
that the judge unequivocally indicated her intent to
retain jurisdiction for the express purpose of considering
a JRAD, and the recommendation was thereafter entered
without opposition from immigration authorities or the
state prosecutor. The JRAD statute (repealed in 1990) is
Nos. 10-1354 & 11-1243 3
silent on whether noncompliance with the 30-day time
limit is a defect that strips the court of authority to enter
the recommendation. Dolan v. United States, 130 S. Ct. 2533
(2010), suggests that the missed deadline does not ex-
tinguish the court’s authority—at least where, as here,
the judge timely announced her intent to consider a
JRAD and continued the case for that purpose.
Accordingly, conceding the JRAD’s invalidity was
gravely prejudicial to Solis-Chavez’s defense against
removal. The BIA must determine on remand whether
counsel’s concession amounts to a denial of due process,
as required for claims of ineffective assistance of counsel
in immigration proceedings. We also direct the BIA to
clarify two issues it failed to address in Solis-Chavez’s
first petition.
I. Background
In 1980 Solis-Chavez entered the United States from
Guatemala as a lawful permanent resident. In 1987 he was
arrested and charged in Cook County, Illinois, with
aggravated criminal sexual abuse of a victim under 13
for allegedly touching a girl’s buttocks. Solis-Chavez
pleaded not guilty and was convicted following a one-day
bench trial in January 1989. On March 16, 1989, the
judge sentenced him to 24 months’ probation.
At that time federal immigration law included the
JRAD provision, which allowed the sentencing judge
to issue a statement at sentencing or within 30 days
thereafter indicating that the defendant’s conviction
4 Nos. 10-1354 & 11-1243
could not be used by immigration authorities as a basis
for deportation. Although called a “recommendation,”
the command of a JRAD was mandatory. See 8 U.S.C.
§ 1251(b)(2) (repealed 1990); Janvier v. United States, 793
F.2d 449, 452 (2d Cir. 1986).
At sentencing the judge said Solis-Chavez was a
good candidate for a JRAD because unlike most sexual
assaults, “the victim in this matter was not harmed in
any substantial way.” Before the judge could formally
consider a JRAD, however, Solis-Chavez was required
to give notice to immigration authorities so they could
register any opposition. Solis-Chavez’s attorney said
he would notify the authorities, and the judge scheduled
a hearing on April 13 for any postsentencing issues,
including the JRAD. The judge said she would “go
ahead and conclude the sentencing portion of this case”
but would “certainly keep this matter on [the] call” to
permit Solis-Chavez’s counsel to proceed with the JRAD
notice. She said the case presented “a novel situation”
and that she “anticipat[ed] further proceedings on this
matter.” With these comments the court continued Solis-
Chavez’s bond and “retain[ed] jurisdiction for 30 days.”
On April 13 the judge was in the middle of a jury trial.
When the clerk called Solis-Chavez’s case during a break
in the proceedings, his attorney was not present. At that
moment the judge could not recall the purpose of the
hearing, saying only that the case was “up today for post-
sentencing motions; whatever those were going to be,
I have no idea.” Because of her ongoing trial, the
judge could not wait for Solis-Chavez’s attorney to arrive,
Nos. 10-1354 & 11-1243 5
so she continued the case until May 23. On that date—
68 days after she sentenced Solis-Chavez—the judge
entered a JRAD without opposition from the prosecutor
or the immigration authorities.
Solis-Chavez served his probation without incident
and avoided further criminal charges. In 2004 he filed
a naturalization application and subsequently passed a
citizenship test. Three years later, however, Solis-Chavez
learned that his application had stalled based on com-
plications with his background check. DHS sub-
sequently arrested Solis-Chavez and charged him with
two grounds of removability: (1) as an alien convicted of
an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii); and
(2) as an alien convicted of a crime of child abuse, id.
§ 1227(a)(2)(E)(i). Both charges were based on the 1989
conviction.
Solis-Chavez admitted the factual allegations and
conceded removability on the basis of the first charge
but not the second. He also moved to terminate the pro-
ceedings based on the JRAD. But when the parties dis-
covered that the JRAD had not been entered within
30 days of sentencing, Solis-Chavez’s attorney conceded
its invalidity. Thereafter, counsel focused on other argu-
ments, including a request that the IJ stay removal pro-
ceedings to allow Solis-Chavez’s naturalization applica-
tion to go forward. The IJ found Solis-Chavez removable
on both charges, held that the JRAD argument was
waived, and rejected the remaining arguments.
Solis-Chavez appealed to the BIA. Represented by new
counsel, Solis-Chavez argued that the JRAD was valid
despite its untimeliness. He also reiterated the arguments
6 Nos. 10-1354 & 11-1243
concerning the crime-of-child-abuse charge and the
naturalization application. The BIA dismissed the ap-
peal. The Board explicitly declined to reach the merits
of the JRAD issue, finding that Solis-Chavez’s counsel
had waived it before the IJ. The BIA addressed and
rejected some of the other arguments but never
addressed Solis-Chavez’s contention that he could not
be deported on the basis of a crime of child abuse or
that removal proceedings should be stayed to allow him
to press his naturalization application.
Solis-Chavez petitioned for review. At oral argument
we suggested that the waiver of the JRAD issue con-
strained our review but also that Solis-Chavez might
have a claim for relief based on his attorney’s mistaken
concession of what appeared to be a valid claim for a
mandatory form of relief from removal. We suggested
as well that a motion to reopen before the BIA might
be appropriate. While we had the petition under advise-
ment, Solis-Chavez moved to reopen the proceedings
before the BIA. The BIA denied the motion, holding
that the JRAD was untimely and therefore counsel’s
concession was not prejudicial. Solis-Chavez again peti-
tioned for review. We consolidated the petitions for
decision.
II. Discussion
In both opinions under review, the BIA conducted
its own analysis rather than supplementing or adopting
the analysis of the IJ, so our focus is on the BIA’s decisions.
Chen v. Holder, 604 F.3d 324, 330 (7th Cir. 2010). We
Nos. 10-1354 & 11-1243 7
review the agency’s legal determinations de novo, but
defer to the BIA’s reasonable interpretations of its own
regulations. Mancillas-Ruiz v. Holder, 625 F.3d 993, 996
(7th Cir. 2010).
A. JRAD and Due Process
We begin with the BIA’s denial of Solis-Chavez’s motion
to reopen based on ineffective assistance of counsel. If
successful, this claim could serve as a complete bar
to removal. As we have noted, the effect of a JRAD is
mandatory and prevents removal based on the convic-
tion to which it applies.
Although removal has serious consequences, it is a
civil proceeding. Padilla v. Kentucky, 130 S. Ct. 1473, 1481
(2010). As such, aliens in immigration proceedings do not
have a Sixth Amendment right to the effective assistance
of counsel. Pervaiz v. Gonzales, 405 F.3d 488, 489-90 (7th
Cir. 2005). They do, however, have a due-process right
to a fair hearing. Kay v. Ashcroft, 387 F.3d 664, 676 (7th
Cir. 2004). The BIA has a body of caselaw holding that
an alien’s due-process rights can be violated by his attor-
ney’s ineffective assistance in removal proceedings. See
generally Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
But see Surganova v. Holder, 612 F.3d 901, 907 (7th Cir.
2010) (reviewing Lozada’s subsequent history and noting
that “the legal standards that the BIA wishes to follow
for these claims [have] been in a state of flux”).
There are three requirements for relief on this ground.
First, the alien must comply with certain procedural
8 Nos. 10-1354 & 11-1243
requirements. See Lozada, 19 I. & N. Dec. at 639. Second,
the alien must show “that he was prejudiced by his rep-
resentative’s performance.” Id. at 638. Finally, “[i]neffective
assistance of counsel in a deportation proceeding is
a denial of due process only if the proceeding was so
fundamentally unfair that the alien was prevented
from reasonably presenting his case.” Id.
Here, the BIA determined (and the government does
not dispute) that Solis-Chavez complied with the first
requirement. The BIA concluded, however, that Solis-
Chavez could not satisfy the second. Specifically, the
BIA held that because the JRAD was untimely, counsel’s
concession of its invalidity did not deprive Solis-Chavez
of a valid defense to removal. Accordingly, the Board
concluded that he was not prejudiced by his counsel’s
performance and there was no reason to reopen the
proceedings.
As relevant here, the JRAD statute provides that immi-
gration authorities may not use a conviction as a basis
to remove an alien
if the court sentencing such alien for such crime
shall make, at the time of first imposing judgment or
passing sentence, or within thirty days thereafter, a rec-
ommendation to the Attorney General that such
alien not be deported, due notice having been
given prior to making such recommendation to rep-
resentatives of the interested State, the Service,
and prosecution authorities, who shall be granted
an opportunity to make representations in the matter.
Nos. 10-1354 & 11-1243 9
8 U.S.C. § 1251(b)(2) (repealed 1990) (emphasis added).
The Cook County judge who handled Solis-Chavez’s
case entered the JRAD 68 days after sentencing. The
BIA held that the expiration of the statute’s 30-day
postsentencing deadline rendered the JRAD ineffective.
The analysis is not quite that simple. Solis-Chavez’s
judge clearly indicated at sentencing that she intended
to consider a JRAD in due course. Indeed, the judge
raised the JRAD issue herself. She informed counsel of
the notice requirements and deemed Solis-Chavez an
appropriate candidate. The judge viewed the case as
“very different from a lot of the other cases that might
have been charged under the [sexual-assault] statute”
because the victim “was not harmed in any substantial
way.” Moreover, Solis-Chavez had no criminal back-
ground. At the end of the sentencing hearing, the judge
explicitly “retain[ed] jurisdiction for 30 days,” said the
case was “still on the call,” and made it clear that she
“anticipat[ed] further proceedings in this matter.”
When the time came for those further proceedings, the
judge was in the middle of a jury trial. She called Solis-
Chavez’s case during a break but under the circum-
stances did not have an opportunity to refamiliarize
herself with the case or the JRAD issue. Solis-Chavez’s
counsel was not in the courtroom at that moment, so the
judge continued the case until the next month. This is not
uncommon in high-volume state trial courts, in which
judges call dozens of cases each day—often while in
trial—and attorneys juggle appearances in several court-
rooms on the same day. The decision to continue the
10 Nos. 10-1354 & 11-1243
matter outside the 30-day window thus represents an
oversight of a busy state trial judge, not an opinion on
the merits of the JRAD. Had the judge been reminded
of the JRAD clock, we are confident she would have
handled the matter more delicately, especially in light
of her previously announced intention to consider a
JRAD. As it was, the judge entered the recommendation
at the next hearing, without opposition from immi-
gration authorities or the state prosecutor. There is no in-
dication that she was unfamiliar with the facts of Solis-
Chavez’s case at that time. Importantly, the judge was
plainly trying to retain jurisdiction for the express
purpose of considering the JRAD.
The government maintains that the missed deadline
automatically makes the JRAD invalid, but this argu-
ment disregards the surrounding circumstances and
treats the 30-day deadline as a jurisdictional require-
ment. Taking the second point first, we do not read the
statutory time limit as foreclosing the judge’s authority
to continue a case postsentencing for the purpose of
entering a JRAD. The statute says that the immigration
consequences of a conviction are wiped out if the
judge makes the recommendation at sentencing or
within 30 days of sentencing, but it does not speak to
the consequences of missing the deadline; the statute is
silent on whether the expiration of that time limit elimi-
nates the court’s authority to enter a JRAD. Cf. Arbaugh
v. Y&H Corp., 546 U.S. 500, 515-16 (2006) (“If the Legisla-
ture clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional, then courts
and litigants will be duly instructed and will not be left
Nos. 10-1354 & 11-1243 11
to wrestle with the issue. But when Congress does not
rank a statutory limitation on coverage as jurisdictional,
courts should treat the restriction as nonjurisdictional
in character.” (citation omitted)).
In this regard the 30-day limit in the JRAD statute
is similar to the statutory deadline at issue in Dolan v.
United States, 130 S. Ct. at 2538. Dolan concerned the
statutory time limit for setting victim restitution under
18 U.S.C. § 3664(d)(5), which provides that a sentencing
court “shall set a date for the final determination of the
victim’s losses, not to exceed 90 days after sentencing.”
In Dolan the district court specifically noted the restitu-
tion issue at sentencing but said there was not enough
information in the record to determine the proper
amount. An addendum to the presentence report was
timely filed, but the court inexplicably scheduled the
restitution hearing three months outside the 90-day
postsentencing window. The Supreme Court held that
the missed deadline did not deprive the court of the
power to award restitution. Id. at 2539.
Because the restitution statute does not on its face
“specify a consequence for noncompliance with its
timing provisions,” the Supreme Court declined to
impose its own “coercive sanction.” Id. (quotation marks
omitted). Instead, the Court characterized § 3664(d)(5) as
a time-limiting statute that “seeks speed by creating a
time-related directive that is legally enforceable but
does not deprive a judge or other public official of the
power to take the action to which the deadline applies
if the deadline is missed.” Id. at 2538. The Court held
12 Nos. 10-1354 & 11-1243
that “a sentencing court that misses the 90-day dead-
line nonetheless retains the power to order restitution—at
least where, as here, the sentencing court made clear
prior to the deadline’s expiration that it would order
restitution, leaving open (for more than 90 days) only
the amount.” Id. at 2537.
Dolan is instructive here. Like the restitution statute,
the JRAD statute does not, by its terms, specify the con-
sequence for noncompliance with its 30-day deadline.
When the statute was in effect, the short statutory
window prevented sentencing judges from entering
a JRAD retrospectively or long after the sentencing
hearing when the facts of the case have faded from mem-
ory. Janvier, 793 F.2d at 453-55. But the statute itself is
silent on whether the 30-day time limit affects the
court’s authority to enter a JRAD or forecloses the pos-
sibility of a continuance beyond that time frame where
the court has timely announced its intention to consider
making the recommendation. As in Dolan, this statutory
silence suggests that a missed deadline, “even through
[the court’s] own fault . . . , does not deprive the court
of the power” to enter a JRAD. See Dolan, 130 S. Ct. at 2539.
While we have not previously considered the validity
of an untimely JRAD, we have addressed the effect of
belated notice. In Cerujo v. INS, 570 F.2d 1323, 1324 (7th
Cir. 1978), the judge entered a JRAD at sentencing but
without proper notice to immigration officials. We ac-
knowledged the argument that “the 30-day time limit
and by analogy the notice requirement should be read
as directory and not mandatory.” Id. at 1325 (citing Velez-
Nos. 10-1354 & 11-1243 13
Lozano v. INS, 463 F.2d 1305, 1310 (D.C. Cir. 1972) (Fahy, J.,
dissenting)). But we noted as well that the statutory
language “does not clarify the effect of a recommenda-
tion against deportation made without prior notice to
the INS.” Id. We held that at least where the govern-
ment had not been prejudiced, it was appropriate to
remand the case for notice and a new JRAD hearing. Id.
at 1325-27.
It’s worth emphasizing that this case is not charac-
terized by afterthought or deadline-manipulating games-
manship. This is not, for example, a nunc pro tunc JRAD
entered only after immigration authorities initiated re-
moval proceedings. See Velez-Lozano, 463 F.2d at 1306-08.
Nor was the sentencing judge asked to vacate the
original judgment and reenter it in order to belatedly
bring the case within the 30-day window. See Rashtabadi
v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994). A retroactive
attempt to obtain a JRAD would fall outside the
statute’s terms. Here, by contrast, Solis-Chavez’s judge
plainly intended to entertain a JRAD at sentencing
but could not do so without notice to immigration au-
thorities. She said she would retain jurisdiction so that
notice could be given, and she adjourned the case for
the express purpose of considering a JRAD once that
prerequisite was accomplished. The case progressed
steadily toward that end with no intervening events
that call Solis-Chavez’s motives into question or suggest
that the judge’s familiarity with his case had waned.
The JRAD was entered at the second hearing with-
out objection from immigration authorities or the state
prosecutor.
14 Nos. 10-1354 & 11-1243
Accordingly, under these circumstances, and because
the statute does not itself specify the consequences of
noncompliance with the time limit, we see no reason to
treat the missed deadline as invalidating the JRAD. By
conceding the issue before the IJ, Solis-Chavez’s attorney
waived a complete defense to removal and therefore
prejudiced his client’s case.1 It remains to be determined
whether that concession rendered the administrative
proceedings “so fundamentally unfair that the alien
was prevented from reasonably presenting his case.”
Lozada, 19 I. & N. Dec. at 638. We remand to the agency
for further proceedings to address this issue.
B. Failure to Address the Motion to Stay
Solis-Chavez also challenged the BIA’s failure to
consider his motion to stay removal proceedings to
permit his naturalization application to proceed. Though
the BIA need not “write an exegesis on every contention,
it must consider the issues raised[] and announce its
decision in terms sufficient to enable a reviewing court
to perceive that it has heard and thought and not
merely reacted.” Iglesias v. Mukasey, 540 F.3d 528, 531 (7th
1
We reject the government’s argument that Solis-Chavez has
no interest in the JRAD that can be protected under the Due
Process Clause. It is true that he has no right to a JRAD (it’s a
purely discretionary form of relief), but he may certainly
protect a previously entered JRAD against the government’s
claim that it is untimely and therefore invalid.
Nos. 10-1354 & 11-1243 15
Cir. 2008) (quotation marks omitted). The BIA never
addressed Solis-Chavez’s request that the removal pro-
ceedings be stayed to allow his naturalization applica-
tion to move forward.
The government argues that Solis-Chavez’s motion
was doomed in any event. The governing regulation
provides:
An immigration judge may terminate removal pro-
ceedings to permit the alien to proceed to a final
hearing on a pending application or petition for
naturalization when the alien has established prima facie
eligibility for naturalization and the matter involves
exceptionally appealing or humanitarian factors; in
every other case, the removal hearing shall be com-
pleted as promptly as possible notwithstanding
the pendency of an application for naturalization
during any state of the proceedings.
8 C.F.R. § 1239.2(f) (emphasis added). In Matter of
Hidalgo, 24 I. & N. Dec. 103, 106 (BIA 2007), the BIA held
that only the DHS may establish an alien’s prima facie
eligibility for naturalization for purposes of terminating
removal proceedings under this regulation. In other
words, an IJ or the BIA may terminate removal pro-
ceedings only when “some form of affirmative communic-
ation from [DHS]” establishes the alien’s prima facie
eligibility for naturalization. Hidalgo, 24 I. & N. Dec. at
106. The DHS has provided no such communication here.
The Board’s decision in Hidalgo has been controversial.
The majority opinion generated a spirited dissent that
the panel majority itself acknowledged was “not without
16 Nos. 10-1354 & 11-1243
some force.” Id. at 108. And the opinion has been criticized
as setting up a Catch-22 because federal law generally
prohibits DHS from making the type of communication
mandated by the decision. See 8 U.S.C. § 1429 (“[N]o
application for naturalization shall be considered by
the Attorney General if there is pending against the
applicant a removal proceeding pursuant to a warrant
of arrest issued under the provisions of this chapter or
any other Act . . . .”).
The Second Circuit explained this problem at length in
Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009). The
regulation in question dates back to 1974. Id. at 139.
Back then, the BIA interpreted it to require either the
Immigration and Naturalization Service or a federal
court to issue a statement of prima facie eligibility for
naturalization. See Matter of Cruz, 15 I. & N. Dec. 236, 237
(BIA 1975). In 1990 Congress overhauled the naturaliza-
tion process, stripping courts of authority to naturalize
and preventing the Attorney General from considering
a naturalization application while a removal proceeding
is pending. Perriello, 579 F.3d at 139-40. The regulation
was never amended, however, and Hidalgo preserved the
core holding of Cruz despite the intervening change in
naturalization practices. Hidalgo, 24 I. & N. Dec. at 106. As
a result, an alien can never get the communication he
needs to support a stay of removal proceedings under
the regulation—“[t]he law, in effect, seems to be chasing
Nos. 10-1354 & 11-1243 17
its tail.”2 Perriello, 579 F.3d at 138; see also Zegrean v. Attor-
ney Gen., 602 F.3d 273, 274-75 (3d Cir. 2010) (calling the
conflict “awkward if not altogether unworkable” and a
“knot we are asked to untangle”).
Every circuit court that has reviewed a BIA decision
applying Hidalgo has affirmed the rule, typically relying
on the deference owed to the BIA in interpreting its own
regulations. See, e.g., Robertson-Dewar v. Holder, 646 F.3d
226, 230-31 (5th Cir. 2011); see also Barnes v. Holder, 625
F.3d 801, 805 (4th Cir. 2010) (collecting cases). And the
Perriello court itself ultimately concluded that “it is not a
judicial role to save a regulation that now conflicts, at
least in part, with the underlying statute.” 579 F.3d at 142.
The issue is not properly before us here, however,
because the BIA overlooked it. Accordingly, the proper
2
The Second Circuit also noted the variety of responses to this
apparent inconsistency:
In some cases (such as this one), DHS has adjudicated
naturalization applications while aliens have awaited
termination of their removal proceedings, notwithstanding
the bar in § 1429. In other cases, IJs have determined
prima facie eligibility for naturalization, notwithstanding
the BIA’s holding in Cruz that they lack jurisdiction to do
so. And in yet other cases, no determination of prima facie
eligibility has been made by anybody, leaving aliens to
pursue writs of mandamus in an effort to compel DHS
to produce “affirmative statement[s]” as to prima facie
eligibility.
Perriello v. Napolitano, 579 F.3d 135, 140-41 (2d Cir. 2009)
(citations omitted).
18 Nos. 10-1354 & 11-1243
course is to remand the case to the BIA, allow it to
address Solis-Chavez’s argument, and then if necessary
review the BIA’s decision.3
C. Section 212(c) Challenge
Solis-Chavez also asks us to remand for a hearing to
determine whether he is retroactively eligible for relief
from removal under § 212(c), a repealed provision of
the Immigration and Nationality Act. Section 212(c)
provided the Attorney General with the discretion to
allow an otherwise-deportable alien to remain in the
country so long as he had lived here for at least seven
3
The BIA should also address another issue on remand. As we
have noted, the DHS sought to remove Solis-Chavez on the
ground that he was an alien convicted of a crime of child abuse.
Solis-Chavez contested this charge throughout his removal
proceedings, but the BIA did not address it. The govern-
ment now concedes that the crime-of-child-abuse ground
applies only to convictions occurring after September 30, 1996.
See Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, § 350(b), 110 Stat. 3009 (1996).
Solis-Chavez was convicted in 1989, so this charge of
removability was erroneous. The BIA’s failure to discuss the
issue, however, was harmless in light of the alternative
ground for removal (although that alternative basis for
removal will be affected by the BIA’s resolution of the JRAD
and Hidalgo issues on remand). See Victor v. Holder, 616 F.3d
705, 710 (7th Cir. 2010) (harmless-error standard applies in
judicial review of immigration proceedings). Still, the BIA
should correct the error on remand.
Nos. 10-1354 & 11-1243 19
years and had not been convicted of certain types of
crimes. See 8 U.S.C. § 1182(c) (repealed 1996). The Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996 replaced the broad discretion of § 212(c) with
the narrower “cancellation of removal” provision. See
8 U.S.C. § 1229b; see generally Mata-Guerrero v. Holder,
627 F.3d 256, 257-58 (7th Cir. 2010). Solis-Chavez is ineligi-
ble for cancellation of removal.
In INS v. St. Cyr, the Supreme Court held that Ҥ 212(c)
relief remains available for aliens . . . whose convic-
tions were obtained through plea agreements and who,
notwithstanding those convictions, would have been
eligible for § 212(c) relief at the time of their plea under
the law then in effect.” 533 U.S. 289, 326 (2001). St. Cyr
has led to a circuit split over whether retroactive § 212(c)
relief was available outside the guilty-plea context. See
Ferguson v. U.S. Attorney Gen., 563 F.3d 1254, 1263-67 (11th
Cir. 2009) (collecting cases and discussing the various
approaches). Our circuit reads St. Cyr as being limited
to its facts; we have adopted a “categorical approach” and
emphasized that “the category of aliens who went to
trial did not forgo any possible benefit in reliance on
section 212(c).” Canto v. Holder, 593 F.3d 638, 644 (7th Cir.
2010). Thus, a § 212(c) waiver under St. Cyr is limited
to those who relied on the availability of this form of
relief by (1) pleading guilty prior to its repeal, or
(2) conceding deportability with the expectation that
they could seek waivers under § 212(c). Id. at 643-44
(citing Montenegro v. Ashcroft, 355 F.3d 1035, 1036-37 (7th
Cir. 2004) (per curiam)).
20 Nos. 10-1354 & 11-1243
Solis-Chavez argues that his JRAD application should
be viewed as proof of reliance on the availability of
§ 212(c) relief sufficient to confer eligibility under St. Cyr.
He maintains that the JRAD application notified immi-
gration officials of his conviction and, as a result, exposed
him to potential deportation. He claims that he relied
on the existence of the § 212(c) waiver as a backup in
the event that he faced deportation. This argument is
foreclosed by our precedent; Solis-Chavez’s case falls
within neither of the categories mentioned in Canto.
D. Equitable Estoppel
Finally, Solis-Chavez argues that the government
should be equitably estopped from removing him. It is
an open question whether equitable estoppel is available
against the government. See Office of Pers. Mgmt. v. Rich-
mond, 496 U.S. 414, 422-23 (1990) (noting that it has
rejected every claim of equitable estoppel against the
government but declining to adopt a flat rule prohibiting
the claim). Assuming it is, before the government
may be estopped from enforcing the law, the party ad-
vancing the argument must show all the traditional
elements of estoppel plus some “affirmative misconduct.”
Gutierrez v. Gonzales, 458 F.3d 688, 691 (7th Cir. 2006).
Solis-Chavez argues that the government’s failure to
contest the JRAD before or after it was entered, and its
lengthy delay in processing his naturalization applica-
tion and seeking his removal, amount to “affirmative
misconduct” warranting estoppel. He cites Mendoza-
Hernandez v. INS, 664 F.2d 635, 639 (7th Cir. 1981), for the
Nos. 10-1354 & 11-1243 21
proposition that “[u]nexplained delays . . . can amount
to affirmative misconduct.” That statement, however, is
no longer good law. See INS v. Miranda, 459 U.S. 14, 19
(1982) (“Proof only that the Government failed to
process promptly an application falls far short of estab-
lishing [affirmative misconduct].”); see also Gutierrez, 458
F.3d at 692 (“[A]n unexplained delay . . . quite clearly
cannot form the basis of an estoppel argument against
the government.”).
Solis-Chavez raises other potential sources of affirma-
tive misconduct: his arrest and detention without ex-
planation; the procedural Catch-22 created by Hidalgo;
and the DHS’s failure to provide him with seizure med-
ication while in custody. These additional arguments
do not carry the day. Solis-Chavez will have the oppor-
tunity to argue the merits of the Hidalgo issue on
remand, and the remaining allegations of affirmative
governmental misconduct are not of the kind or degree
necessary to support estoppel.
For the foregoing reasons, we G RANT Solis-Chavez’s
petitions, V ACATE the BIA’s orders, and R EMAND for
further proceedings consistent with this opinion.
10-25-11