Carranza-De Salinas v. Gonzales

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Reform and Immigrant Responsibility Act (“IIRIRA”), which repealed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