In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1354 & 11-1243

JORGE SOLIS-CHAVEZ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petitions for Review of Orders of

the Board of Immigration Appeals.

No. A037-116-580

ARGUED OCTOBER 1, 2010—DECIDED OCTOBER 25, 2011

Before POSNER, KANNE, and SYKES, Circuit Judges.

SYKES, 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 sentenced him issued a judicial recommendation against deportation (“JRAD”). If valid, a JRAD prohibits the De-
2 Nos. 10-1354 & 11-1243

partment of Homeland Security (“DHS”) from using a conviction 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 decision, Solis-Chavez’s attorney conceded, without consulting 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 Immigration 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 petitioned 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 The JRAD statute (repealed in 1990) is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 extinguish 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 SolisChavez’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 postsentencing 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 complications with his background check. DHS subsequently 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 proceedings based on the JRAD. But when the parties discovered that the JRAD had not been entered within

30 days of sentencing, Solis-Chavez’s attorney conceded

its invalidity. Thereafter, counsel focused on other arguments, including a request that the IJ stay removal proceedings to allow Solis-Chavez’s naturalization application 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 appeal. 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 constrained 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 advisement, 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 petitioned 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 conviction 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 attorney’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 representative’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 SolisChavez 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 immigration 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 recommendation to the Attorney General that such

alien not be deported, due notice having been

given prior to making such recommendation to representatives 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 background. 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 SolisChavez’s case during a break but under the circumstances 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 courtrooms 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 immigration authorities or the state prosecutor. There is no indication that she was unfamiliar with the facts of SolisChavez’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 argument disregards the surrounding circumstances and

treats the 30-day deadline as a jurisdictional requirement. 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 eliminates the court’s authority to enter a JRAD. Cf. Arbaugh

v. Y&H Corp., 546 U.S. 500, 515-16 (2006) (“If the Legislature 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 restitution 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 deadline 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 consequence 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 memory. 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 possibility 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 acknowledged 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 recommendation against deportation made without prior notice to

the INS.” Id. We held that at least where the government 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 characterized by afterthought or deadline-manipulating gamesmanship. This is not, for example, a nunc pro tunc JRAD

entered only after immigration authorities initiated removal 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 authorities. 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 without objection from immigration authorities or the state

prosecutor.
14 Nos. 10-1354 & 11-1243

We reject the government’s argument that Solis-Chavez has 1

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.

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. It remains to be determined 1

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
Nos. 10-1354 & 11-1243 15

Cir. 2008) (quotation marks omitted). The BIA never

addressed Solis-Chavez’s request that the removal proceedings be stayed to allow his naturalization application 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 proceedings 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 completed 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 proceedings only when “some form of affirmative communication 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 naturalization 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

The Second Circuit also noted the variety of responses to this 2

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).

its tail.” Perriello, 579 F.3d at 138; see also Zegrean v. Attor- 2

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
18 Nos. 10-1354 & 11-1243

The BIA should also address another issue on remand. As we 3

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 government 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.

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
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 ineligible for cancellation of removal.

In INS v. St. Cyr, the Supreme Court held that “§ 212(c)

relief remains available for aliens . . . whose convictions 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 immigration 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. Richmond, 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 advancing 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 application and seeking his removal, amount to “affirmative

misconduct” warranting estoppel. He cites MendozaHernandez 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 establishing [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 affirmative misconduct: his arrest and detention without explanation; the procedural Catch-22 created by Hidalgo;

and the DHS’s failure to provide him with seizure medication while in custody. These additional arguments

do not carry the day. Solis-Chavez will have the opportunity 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 GRANT Solis-Chavez’s

petitions, VACATE the BIA’s orders, and REMAND for

further proceedings consistent with this opinion.

10-25-11