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Click here for the full text of this decision FACTS:Petra Carranza-de Salinas is a native and citizen of Mexico. She became a lawful permanent resident of the United States on Aug. 29, 1985. On Aug. 16, 1993, a jury convicted Carranza of possessing marijuana with intent to distribute. Carranza claims that she did not immediately apply for discretionary relief under the former �212(c), or 8 U.S.C. �1182(c), of the Immigration and Nationality Act (INA) 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 In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which repealed �212(c) of the INA. In 1997, immigration authorities issued a Notice to Appear to Carranza, 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 Jan. 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 �212(c). The INS conceded her eligibility for �212(c) relief and the IJ set a date 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 had declined a plea agreement and 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. Carranza appealed to the Board of Immigration Appeals (BIA). On March 11, 2004, the BIA issued an order remanding to the IJ for the sole purpose of preparing a written decision. On Jan. 10, 2005, in compliance with this directive, the IJ issued a written order formalizing the earlier findings. On Aug. 23, 2005, the BIA dismissed Carranza’s appeal, stating that no binding precedent supported Carranza’s arguments. The BIA further noted that recently enacted regulations limit �212(c) relief to aliens convicted by plea agreement. Carranza appealed to the 5th U.S. Circuit Court of Appeals. Carranza claimed that she deferred her application for �212(c) relief to establish a stronger record of rehabilitation, in reliance on the continued availability of �212(c) relief. HOLDING:The 5th Circuit granted the petition for review, vacated the BIA’s order, and remanded. The court noted that before the enactment of recent changes to immigration law, the BIA itself recognized and endorsed a “waiting strategy” for aliens facing deportation. In the case In Matter of Gordon, 17 I. & N. Dec. 389 (BIA 1980), the BIA stated that: “Common sense and prudence suggest that a recently convicted alien should prefer to let a considerable time elapse before offering to demonstrate rehabilitation.” Thus, the court stated, the BIA effectively encouraged aliens to wait for the initiation of deportation proceedings but this strategy depended on the continued availability of �212(c) relief. The disruption of this strategy, the court stated, would be contrary to the touchstone considerations of statutory retroactivity, including fair notice, reasonable reliance and settled expectations. Carranza, the court stated, claimed that she affirmatively chose not to apply for �212(c) relief immediately after her conviction, but instead chose to wait until authorities initiated deportation proceedings so as to have time to establish her rehabilitation and ties to the community. If, the court stated, Carranza can demonstrate on remand that she affirmatively decided to postpone her �212(c) application to increase her likelihood of relief, then she will establish a reasonable reliance interest in the future availability of �212(c) relief and will be entitled to make her application for relief from deportation. OPINION:Jolly, J.; Jolly, Higginbotham and Dennis, J.J.

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