FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JHONNALYN ROMERO PASCUA, 

Petitioner,

No. 08-71636

v.  Agency No.

ERIC H. HOLDER JR., Attorney A038-445-596

General,

Respondent. 

JHONNALYN ROMERO PASCUA, 

Petitioner, No. 08-72705

v. Agency No.  A038-445-596 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petitions for Review of Orders of the

Board of Immigration Appeals

Argued and Submitted

February 11, 2011—Pasadena, California

Filed March 23, 2011

Before: A. Wallace Tashima and Raymond C. Fisher,

Circuit Judges, and Mark L. Wolf, Chief District Judge.*

Opinion by Judge Tashima

*The Honorable Mark L. Wolf, Chief United States District Judge for

the District of Massachusetts, sitting by designation. 

3935
COUNSEL

Christy A. Chouteau, Aguirre Law Group, Healdsburg, California, for the petitioner.

PASCUA v. HOLDER 3937
Rebecca Ariel Hoffberg, Office of Immigration Litigation,

Civil Division, U.S. Department of Justice, Washington, DC,

for the respondent.

OPINION

TASHIMA, Circuit Judge:

We consider whether former § 212(c) of the Immigration

and Nationality Act (“INA”) applies in deportation proceedings that commenced before the April 1, 1997, effective date

of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), even if the proceedings include

deportation charges based on post-IIRIRA offenses. Following the Second and Fifth Circuits, we hold that former

§ 212(c) does apply in such circumstances.

I

Twice, Jhonnalyn Pascua, a lawful permanent resident

since 1983, has been convicted of drug and weapons offenses

in California. In 1995, she pleaded guilty to charges stemming

from her simultaneous possession in a vehicle of a firearm

and methamphetamine. In 2005, a jury convicted her of similar charges for possessing methamphetamine and ammunition

in her home.

The Immigration and Naturalization Service (“INS”) commenced deportation proceedings in 1996, alleging, based on

the 1995 convictions, that Pascua was deportable for a firearms offense and a controlled substance offense under INA

§ 241(a)(2)(C) and § 241(a)(2)(B)(i), respectively. But, by the

time Pascua was convicted of the 2005 crimes, her case was

still before an Immigration Judge, so the Department of

Homeland Security (“DHS,” the successor to the INS) supple3938 PASCUA v. HOLDER
mented the deportation charges with additional charges based

on the new firearms and drug convictions.1

IIRIRA became effective on April 1, 1997, after Pascua’s

deportation proceedings had commenced, but before her 2005

convictions and before the filing of supplemental charges

based thereon. Among other things, IIRIRA repealed § 212(c)

of the INA, which courts and the BIA had interpreted to

authorize discretionary waivers of deportation for longtime

lawful permanent residents, and replaced it with the more

restrictive remedy of cancellation of removal under IIRIRA

§ 240A. As we observed in Becker v. Gonzales, 473 F.3d

1000 (9th Cir. 2007):

[Section] 212(c) allowed a lawful permanent resident

with seven years of consecutive residence in the

United States to apply for a discretionary waiver of

deportation. The IIRIRA, which became effective in

April 1997, repealed § 212(c) and replaced it with

§ 240A. Under § 240A, the Attorney General may

cancel removal of an alien who has been a lawful

permanent resident for not less than five years, has

resided continuously in the United States for seven

years after having been admitted, and “has not been

convicted of any aggravated felony.”

Id. at 1003 (quoting IIRIRA § 240A(a), 8 U.S.C. § 1229b(a)

(case citation omitted)). 

Pascua concedes deportability, but seeks discretionary

relief from deportation. The question is whether pre-IIRIRA

law (i.e., § 212(c)), IIRIRA (i.e., cancellation of removal

1The delay in the case resulted partly from a mistake by the Board of

Immigration Appeals (“BIA”) — it applied the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) retroactively to Pascua’s case

in a 1997 decision, which the federal district court reversed through

habeas corpus relief — and partly from slow proceedings on remand. 

PASCUA v. HOLDER 3939
under § 240A), or some combination of the two govern her

eligibility for discretionary relief.

II

We have jurisdiction pursuant to 8 U.S.C. § 1252 to review

the legal issues raised in Pascua’s petitions for review.

Garcia-Jimenez v. Gonzales, 488 F.3d 1082, 1085 (9th Cir.

2007). We review such legal issues de novo. Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010). Our review is

“limited to the actual grounds relied upon by the BIA.” Id.

(quoting Ramirez-Altamirano v. Holder, 563 F.3d 800, 804

(9th Cir. 2009) (internal quotation marks omitted)).

III

The government asks us not to decide whether IIRIRA

applies to Pascua’s case, but instead to remand this issue to

the BIA. We will remand an issue to the BIA if it has not yet

addressed it in the first instance. Montes-Lopez v. Gonzales,

486 F.3d 1163, 1165 (9th Cir. 2007) (“[W]e are not permitted

to decide a claim that the immigration court has not considered in the first instance.”); Andia v. Ashcroft, 359 F.3d 1181,

1184-85 (9th Cir. 2004). Here, however, the BIA has twice

considered the issue of IIRIRA’s applicability, albeit in contradictory decisions. First, in a March 20, 2008, decision, the

BIA concluded that pre-IIRIRA law governed the charges

arising from Pascua’s 1995 convictions, but that IIRIRA governed the charges arising from her 2005 convictions. Accordingly, relying on our decision in Garcia-Jimenez, the BIA

reasoned that Pascua could not avoid deportation because she

could not combine discretionary relief under pre-IIRIRA law

(waiver of deportation pursuant to former § 212(c)) with discretionary relief under IIRIRA (cancellation of removal under

§ 240A). See Garcia-Jimenez, 488 F.3d at 1086 (“[A]n alien

who has received § 212(c) relief — at any time — cannot also

receive [cancellation of removal].”).

3940 PASCUA v. HOLDER
Second, on reconsideration two months later, the BIA

stated in a footnote that pre-IIRIRA law governed Pascua’s

entire case, even the post-IIRIRA charges, because her deportation proceedings commenced before IIRIRA. Despite this

conclusion — which contravened the earlier decision and rendered Garcia-Jimenez inapplicable — the BIA concluded that

Pascua could not avoid deportation under pre-IIRIRA law

either, because the “statutory counterpart” rule, 8 C.F.R.

§ 1212.3(f)(5), made § 212(c) relief unavailable for her firearms convictions. 

Because the BIA has twice considered whether IIRIRA

applies to Pascua’s case, we deny the government’s request to

remand this issue for the BIA to consider the issue yet again.

We instead proceed to decide the issue. See Retuta v. Holder,

591 F.3d 1181, 1189 n.4 (9th Cir. 2010) (“Remand is not

appropriate when the BIA addressed an issue . . . .”). 

IV

[1] We hold that former § 212(c) applies in deportation

proceedings that were commenced before IIRIRA’s effective

date, even if the proceedings include charges based on postIIRIRA convictions.2

 IIRIRA § 309(c) contains transitional

rules that instruct courts not to apply IIRIRA in proceedings

that began before the statute’s effective date of April 1, 1997:

SEC. 309. EFFECTIVE DATES; TRANSITION

. . . .

2Section 212(c) relief remains available as a remedy from deportation,

notwithstanding our decision in Abebe v. Mukasey, 554 F.3d 1203 (9th

Cir. 2009) (en banc) (per curiam). Although portions of Abebe suggest that

§ 212(c) allows relief only from inadmissibility, id. at 1205, 1207, the

decision does not undermine the validity of DHS regulations that extend

the remedy to deportation. Id. at 1207. In Gallegos-Vasquez v. Holder,

2011 WL 692086, at *5, *8 (9th Cir. Mar. 01, 2011), we held, post-Abebe,

that an alien in removal proceedings was eligible for § 212(c) relief. 

PASCUA v. HOLDER 3941
(c) TRANSITION FOR ALIENS IN

PROCEEDINGS.—

(1) GENERAL RULE THAT NEW RULES DO

NOT APPLY.—Subject to the succeeding provisions

of this subsection, in the case of an alien who is in

exclusion or deportation proceedings as of the title

III—A effective date—

(A) the amendments made by this subtitle

shall not apply, and

(B) the proceedings (including judicial

review thereof) shall continue to be conducted without regard to such amendments.

IIRIRA § 309(c), Pub. L. No. 104-208, 110 Stat. 3009 (1996);

see also Mendiola-Sanchez v. Ashcroft, 381 F.3d 937, 939

(9th Cir. 2004). As the statutory text indicates, there are some

exceptions to its “General Rule” — for example, IIRIRA’s

provisions concerning “continuous residence or physical presence” apply even in pre-IIRIRA proceedings, see IIRIRA

§ 309(c)(5) — but no exception covers IIRIRA’s repeal of

former § 212(c). Therefore, under the plain meaning of the

transitional rules, § 212(c) applies in proceedings, like Pascua’s, that pre-date IIRIRA. See Mendiola-Sanchez, 381 F.3d

at 939 (“Congress enacted transitional rules that instruct us to

apply the pre-IIRIRA rules to cases that were pending when

IIRIRA was enacted subject to limited exceptions.”).

[2] There is one wrinkle. A DHS regulation, 8 C.F.R.

§ 1212.3(h), states that § 212(c) is only available for convictions that followed plea agreements reached before IIRIRA’s

effective date. 8 C.F.R. § 1212.3(h)(3) (“Section 212(c) relief

is not available with respect to convictions arising from plea

agreements made on or after April 1, 1997.”); see also id.

§ 1212.3(h) (“Aliens are not eligible to apply for Section

212(c) relief . . . with respect to convictions entered after

3942 PASCUA v. HOLDER
trial.”). Thus, whereas § 309(c) says that § 212(c) relief

remains available so long as the immigration proceedings

were commenced before IIRIRA’s effective date, the DHS

regulations state that § 212(c) relief is not available unless (1)

the relevant conviction resulted from a plea agreement; and

(2) the plea agreement was reached before the effective date.

Pascua’s case lays bare the apparent conflict: her proceedings

began in 1996, so she satisfies the § 309(c) requirement; but

her second set of convictions were in 2005, so she fails the

§ 1212.3(h) requirement. 

[3] We have, as yet, not addressed the tension between

§ 309(c) and § 1212.3(h), but the Second and Fifth Circuits

have. Both courts have held that § 309(c) trumps the regulation; or, put differently, that § 1212.3(h) does not restrict the

availability of § 212(c) relief in proceedings that pre-date

IIRIRA’s effective date. See Enriquez-Gutierrez v. Holder,

612 F.3d 400, 408-09 (5th Cir. 2010); Garcia-Padron v.

Holder, 558 F.3d 196, 201-04 (2d Cir. 2009). Their reasoning

is that § 1212.3(h), which the agency promulgated in response

to the Supreme Court’s decision in INS v. St. Cyr, 533 U.S.

289 (2001), addresses post-IIRIRA proceedings exclusively:

As is clear from the title of the rule [Certain Criminal Convictions Before April 1, 1997] and the decision in St. Cyr, § 1212.3(h) addresses the

retroactivity problem created when a petitioner has

pleaded guilty to a crime prior to IIRIRA’s effective

date of April 1, 1997, and has deportation proceedings instituted against him after that date. See INS v.

St. Cyr, 533 U.S. at 293 (describing petitioner who

pleaded guilty to selling controlled substance before

1996 amendments and whose removal proceedings

were commenced after both AEDPA and IIRIRA

became effective). St. Cyr was concerned only with

the reliance interest of aliens who had pleaded guilty

under the pre-AEDPA/IIRIRA regime. See id. at 323

(“Given the frequency with which [section] 212(c)

PASCUA v. HOLDER 3943
relief was granted in the years leading up to AEDPA

and IIRIRA, preserving the possibility of such relief

would have been one of the principal benefits sought

by defendants deciding whether to accept a plea

offer or instead to proceed to trial.” (footnote omitted)). Consequently, § 1212.3(h) merely codifies the

corollary rule that an alien who chose not to plead,

but instead elected to go to trial under the preAEDPA/IIRIRA regime, was not entitled to assert

the reliance interest identified in St. Cyr. GarciaPadron’s situation is the reverse of that present in St.

Cyr: his deportation proceeding began under the preAEDPA/IIRIRA regime, and his subsequent conviction occurred under the post-AEDPA/IIRIRA

regime. Because § 1212.3(h) was promulgated to

deal with a retroactivity problem not present in this

case, the regulation cannot supersede the plain language of IIRIRA section 309(c)(1), which preserves

section 212(c) relief for petitioners, like GarciaPadron, whose deportation proceedings began under

the pre-IIRIRA regime.

Garcia-Padron, 558 F.3d at 202 (some citations omitted)

(some alterations in original); see also Enriquez-Guitierrez,

612 F.3d at 408 (“[Section] 1212.3(h)(3) merely codifies the

holding in St. Cyr, where the Supreme Court held that the

repeal of § 212(c) could not be applied retroactively to aliens

placed into removal proceedings after passage of IIRIRA, but

who had pleaded guilty before the passage of IIRIRA.”) (citing Garcia-Padron, 558 F.3d at 202). 

[4] We find this analysis persuasive. Because § 1212.3(h)

addresses a different problem than § 309(c), it does not undermine § 309(c)’s plain meaning: IIRIRA’s repeal of § 212(c)

does not apply in proceedings that pre-date IIRIRA. Therefore, because Pascua’s proceedings pre-date IIRIRA, § 212(c)

applies to her application for relief from deportation on all

3944 PASCUA v. HOLDER
charges, including those charges based on post-IIRIRA convictions. 

For clarity, we explain the difference between this case and

Garcia-Jimenez, which held that § 212(c) applied to the petitioner’s pre-IIRIRA convictions but that IIRIRA § 240A (cancellation of removal) applied to his post-IIRIRA offense. 488

F.3d at 1084. The key consideration is whether the alien’s

proceedings pre-date IIRIRA. Garcia-Jimenez’s deportation

proceedings began in June 2000, after IIRIRA’s effective

date. Id. Therefore, § 1212.3(h), and not the transitional rules

of § 309(c), governed the applicability of § 212(c) relief. The

alien’s pre-IIRIRA convictions satisfied § 1212.3(h), but the

post-IIRIRA offense obviously did not. Id. (“The alien smuggling incident [the post-IIRIRA offense] . . . occurred after

IIRIRA’s enactment, so, to avoid removal based on that

charge, Garcia-Jimenez had to seek cancellation of removal

[under IIRIRA] . . . .”). Pascua’s deportation proceedings, in

contrast, pre-date IIRIRA. Therefore, the transitional rules of

§ 309(c), and not § 1212.3(h), govern, and § 212(c) applies to

her entire case.

V

[5] Having decided that § 212(c) applies to Pascua’s preIIRIRA and post-IIRIRA deportation charges, the remaining

question is whether Pascua may actually avoid deportation.

She is deportable for firearms offenses, INA § 241(a)(2)(C),

and controlled substance offenses, INA § 241(a)(2)(B)(i).

Under § 212(c), she is eligible for waivers of deportation on

the controlled substance charges, but not on the firearms

charges, which lack a corresponding ground of inadmissibility

and therefore fail the agency’s “statutory counterpart” test.

See 8 C.F.R. § 1212.3(f)(5) (“An application for relief under

former section 212(c) of the Act shall be denied if . . . [t]he

alien is deportable . . . or removable . . . on a ground which

does not have a statutory counterpart in section 212 of the Act

PASCUA v. HOLDER 3945
[governing inadmissibility].”); Komarenko v. INS, 35 F.3d

432, 434-35 (9th Cir. 1994).3

[6] But Pascua’s case does not end there. The BIA has

long recognized a remedy known as “Gabryelsky relief” for

lawful permanent residents like Pascua who are deportable for

both firearms and drug offenses. See In re Gabryelsky, 20 I.

& N. Dec. 750, 752-56 (B.I.A. 1993). Gabryelsky allows such

aliens to overcome the statutory counterpart problem (posed

by their firearms offenses) by combining an application for

adjustment of status under INA § 245(a) with an application

for § 212(c) relief. The adjustment of status application effectively converts the alien’s deportation proceedings into admissibility proceedings, where the firearms offenses (which do

not bar admissibility) become irrelevant. Id. at 753; see

Malilia v. Holder, 2011 WL 322383, at *4 (9th Cir. Feb. 03,

2011) (“Even an alien who is removable for a firearms conviction is eligible for adjustment of status if the alien presents

an approved I-130 [petition].”).4 The alien may then seek

§ 212(c) relief for the remaining drug offenses. Gabryelsky,

20 I. & N. at 753; see also In re Azurin, 23 I. & N. Dec. 695,

697 n.3 (B.I.A. 2005) (reaffirming Gabryelsky and stating that

“a lawful permanent resident who [i]s deportable for both

drug and weapons offenses c[an] concurrently apply for

adjustment of status to overcome his weapons conviction and

for section 212(c) relief to waive his drug conviction.”). 

3Abebe declared Komarenko a “dead letter,” yet Abebe left intact the

statutory counterpart test for determining whether a potential deportee is

eligible for § 212(c) relief, Abebe, 554 F.3d at 1207, and Komarenko

applies that test to firearms offenses, 35 F.3d at 434-35. Therefore, despite

the “dead letter” language, our citation to Komarenko’s application of the

statutory counterpart test does not conflict with Abebe. 

4

“An adjustment of status is merely a procedural mechanism by which

an alien already within the United States is assimilated to the position of

one seeking to enter the United States.” Medina-Morales v. Ashcroft, 371

F.3d 520, 525 n.3 (9th Cir. 2004) (internal quotation marks and alterations

omitted). The BIA holds that adjustment of status is available even to

aliens who are already lawful permanent residents. Gabryelsky, 20 I. & N.

at 757 n.2. 

3946 PASCUA v. HOLDER
[7] The BIA has not addressed whether Pascua is eligible

for Gabryelsky relief. It did not reach the issue in its March

20, 2008, decision because it concluded that Garcia-Jimenez

completely barred relief. And, on reconsideration, although

the BIA applied the statutory counterpart test, it neglected to

consider Gabryelsky. Therefore, this issue, unlike the issues

the BIA actually did consider, requires remand. See MontesLopez, 486 F.3d at 1165 (“[W]e are not permitted to decide

a claim that the immigration court has not considered in the

first instance.”). We express no opinion on the viability of

Gabryelsky relief in this case; rather, we simply remand for

the agency’s determination of whether Pascua qualifies for

Gabryelsky relief in the first instance.

GRANTED and REMANDED.

PASCUA v. HOLDER 3947