#### Rene Rolando ROSALES, aka Rene Rosales, aka Ronnie Rosales, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 13-2920.

United States Court of Appeals, Second Circuit.

May 16, 2014.

Edward J. Cuccia, Ferro & Cuccia, New York, N.Y., for Petitioner.

*63Kevin J. Conway, United States Department of Justice, (Stuart F. Delery and Carl McIntyre, on the brief), Washington, D.C., for Respondent.

Present: ROSEMARY S. POOLER, REENA RAGGI, and RICHARD C. WESLEY, Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (the “BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED, and this case is REMANDED for further proceedings consistent with this order.

Rene Rolando Rosales, a native and citizen of Honduras, seeks review of a July 26, 2013 decision of the BIA dismissing his appeal from the September 30, 2011 decision of Immigration Judge Barbara A. Nelson (the “IJ”), which found Rosales ineligible for cancellation of removal and relief under former Section 212(c) of the Immigration and Nationality Act. *In re Rene Rolando Rosales,*No. [ AXXX XXX XXX ] (B.I.A. July 26, 2013), *aff,g*No. [ AXXX XXX XXX ] (Immig.Ct.N.Y.C. Sept. 30, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Formerly, certain aliens with criminal convictions were eligible for Section 212(c) relief if their convictions were based on a guilty plea or, if they went to trial, in some circumstances they would remain eligible for Section 212(c) relief if they could show detrimental reliance on the availability of such relief. *See Walcott v. Chertoff,*517 F.3d 149, 152, 155 (2d Cir.2008). In this ease, the BIA and IJ concluded that Rosales was not eligible for Section 212(c) relief because his relevant conviction was the result of a trial, not a guilty plea.

However, in a BIA decision that was issued after the agency’s decisions' in this case, it concluded that deportable lawful permanent residents convicted after a trial should be treated “no differently for purposes of [Sjection 212(c) eligibility than deportable lawful permanent residents convicted by means of plea agreements.” *Matter of Abdelghany,*26 I. & N. Dec. 254, 268 (B.I.A.2014). We have acknowledged that when “reviewing an agency decision following an intervening change of policy by the agency[, we] should remand to permit the agency to decide in the first instance whether giving the change retrospective effect will best effectuate the policies underlying the agency’s governing act.” *NLRB v. Coca-Cola Bottling Co. of Buffalo,*55 F.3d 74, 78 (2d Cir.1995) (internal quotation marks omitted).

In addition, this Court recently recognized that for purposes of eligibility for Section 212(c) relief, the distinction between pleading guilty and proceeding to trial is not logical. *See United States v. Gill,*748 F.3d 491, 2014 WL 1797463, at *9-11 (2d Cir. May 7, 2014).

In view of the foregoing, the petition for review is GRANTED and this case is REMANDED to the agency to consider in the first instance whether Rosales is eligible for Section 212(c) relief.