Agency No. A092-132-610 On Petition for Review of an Order of the Board of Immigration Appeals
The opinion of the court was delivered by: William A. Fletcher
Argued and Submitted October 5, 2010-Pasadena, California
Before: Richard D. Cudahy,*fn1 Kim McLane Wardlaw and William A. Fletcher, Circuit Judges.
W. FLETCHER, Circuit Judge
Petitioner Jose Alfredo Gallegos-Vasquez petitions for review from an order of the Board of Immigration Appeals ("BIA") pretermitting his application for a waiver of inadmissibility pursuant to the now-repealed § 212(c) of the Immigration and Nationality Act ("INA"). We hold, based on INS v. St. Cyr, 533 U.S. 289 (2001), that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104-208, 110 Stat. 1214, does not apply retroactively to deny Gallegos-Vasquez the right to apply for relief under § 212(c).
We grant Gallegos-Vasquez's petition and remand for further proceedings consistent with this opinion.
Gallegos-Vasquez is a native and citizen of Mexico. He became a lawful temporary resident under the Special Agricultural Workers ("SAW") program on November 23, 1987. See INA §§ 210, 210A. At the time, he was twenty years old.
After entering the United States, Gallegos-Vasquez had problems with alcohol and drugs. On March 15, 1989, he was convicted of two California state misdemeanors, receiving known stolen property and hit and run with property damage. On July 31, 1989, he was convicted of a third California misdemeanor, taking a vehicle without consent or vehicle theft. The government did not place documentation of these misde-meanor convictions in the record during his removal proceeding. However, Gallegos-Vasquez admitted to the facts underlying these convictions in that proceeding.
Under the terms of the SAW program, if a lawful temporary resident is convicted of three or more misdemeanors, the Attorney General has the authority to terminate lawful temporary resident status and to deny adjustment to lawful permanent resident status. See 8 U.S.C. § 1160(a)(3). The exercise of this power is permissive rather than mandatory. Id. The Attorney General did not terminate Gallegos-Vasquez's lawful temporary resident status. As long as Gallegos-Vasquez maintained lawful temporary resident status, the SAW program provided for automatic adjustment to lawful permanent resident status. See 8 U.S.C. §§ 1160(a)(2), 1161(d)(1) (1990). Gallegos-Vasquez maintained lawful temporary resident status and automatically adjusted to lawful permanent resident status on December 1, 1990.
On December 18, 1992, Gallegos-Vasquez pled guilty to burglary in California based on acts committed on June 16, 1989. He was sentenced to 240 days' imprisonment and 3 years' probation. The government placed documentation of the conviction and plea in the record during GallegosVasquez's removal proceeding.
During the 1990s, Gallegos-Vasquez began to turn his life around. He was married on October 4, 1990. He participated in a three-week inpatient treatment program for alcoholism in late November and early December 1990. He and his wife had a daughter on November 3, 1994, approximately one year after he was released from prison on the burglary conviction. He became an active member of his church and several church-based groups. In January 1996, he got a job in an auto body shop in Bellingham, Washington. He attended Bellingham Technical College and graduated in March 1997 with a degree in auto refinishing. In December 1997, the owner of the auto body shop where he had been working reported that Gallegos-Vasquez had been a good worker, writing in a letter, "He is a very dedicated & productive employee. He is also [a] very dependable hard working family man."
Gallegos-Vasquez was at a 7-11 convenience store in Fern-dale, Washington, near Bellingham, on October 15, 1997, when a Border Patrol Agent approached him and asked for his identification. The Agent determined that Gallegos-Vasquez was possibly removable and placed him in detention.
On November 15, 1997, Gallegos-Vasquez was served with a Notice to Appear charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(ii), which provides that an alien is removable if he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The bases for this charge were GallegosVasquez's 1989 misdemeanor convictions for receiving known stolen property and for taking a vehicle without consent or vehicle theft. On December 16, Gallegos-Vasquez was served with an additional Notice to Appear, this one charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(i), which provides that an alien is removable if he has been convicted of a crime involving moral turpitude punishable by at least one year imprisonment and committed within five years of the date of admission. The basis for this charge was Gallegos-Vasquez's 1992 burglary conviction.
On January 2, 1998, the IJ found Gallegos-Vasquez removable based on his burglary conviction. The IJ did not rely on his two misdemeanor convictions to support his finding of removability. The IJ pretermitted Gallegos-Vasquez's application for cancellation of removal because he failed to satisfy the requirement of seven years' continuous residence under 8 U.S.C. § 1229b(a)(2). Although Gallegos-Vasquez had been physically present in the United States for more than seven years, under IIRIRA's stop-time provision his continuous residence terminated on June 16, 1989, the date of the burglary to which he had pled guilty. See 8 U.S.C. § 1229b(d)(1).
The BIA affirmed the order of removal on October 1, 1998. The BIA found Gallegos-Vasquez removable based both on his misdemeanor convictions and on his burglary conviction. The BIA noted that the IJ had not relied on the misdemeanor convictions, but wrote, "[B]ecause the respondent, through ...