                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MIRIAM ELIU YEPEZ-RAZO,                     
                      Petitioner,                   No. 03-72005
               v.
                                                    Agency No.
                                                    A70-202-347
ALBERTO R. GONZALES,* Attorney
General,                                              OPINION
                     Respondent.
                                            
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                    Argued and Submitted
            October 18, 2005—Pasadena, California

                        Filed April 24, 2006

        Before: Procter Hug, Jr., Harry Pregerson, and
             Richard R. Clifton, Circuit Judges.

                   Opinion by Judge Pregerson




  *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).

                                 4577
                   YEPEZ-RAZO v. GONZALES                4579


                        COUNSEL

Carlos A. Batara, San Diego, California, for the petitioner.

John Hogan, (argued), and Anthony C. Payne (briefed),
Office of Immigration Litigation, U.S. Department of Justice,
Washington, D.C., for the respondent.
4580                   YEPEZ-RAZO v. GONZALES
                               OPINION

PREGERSON, Circuit Judge:

   Miriam Eliu Yepez-Razo (“Yepez-Razo”) petitions for
review of a decision of the Board of Immigration Appeals
(“BIA”) that found her ineligible for a waiver of inadmissibil-
ity under section 212(h) of the Immigration and Nationality
Act (“INA”), Pub. L. No. 82-414, 66 Stat. 163 (June 27,
1952), 8 U.S.C. § 1182(h). We have jurisdiction under 8
U.S.C. § 1252. We conclude that the BIA erred when it found
that Yepez-Razo was not “lawfully residing” in the United
States for purposes of section 212(h) from January 15, 1995
to June 13, 1995.

                                     I.

   Yepez-Razo, a native and citizen of Mexico, was born on
December 15, 1976 and entered the United States on Novem-
ber 4, 1987. Yepez-Razo’s father, who obtained lawful per-
manent resident status in 1988 as a Special Agricultural
Worker under 8 U.S.C. § 1160, filed a Petition for Alien Rela-
tive on her behalf on November 22, 1991. The Immigration
and Naturalization Service (“INS”)1 approved the petition on
February 10, 1992. Yepez-Razo filed a Form I-817, Applica-
tion for Family Unity Voluntary Departure, at some time in
1992; the application is not in the record and the INS was
unable to provide it in response to Yepez-Razo’s Freedom of
Information Act request.

  On January 15, 1993, the INS denied Yepez-Razo’s Family
Unity application, erroneously believing that her father had
  1
    The INS has been abolished and its functions transferred to the Depart-
ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, § 471, 116 Stat. 2135, 2205 (2002), 6 U.S.C. § 291. We will
refer to the government agency as the INS because all facts relevant to this
case occurred before the transfer.
                       YEPEZ-RAZO v. GONZALES                        4581
obtained lawful permanent resident status under 8 U.S.C.
§ 1255a, not under 8 U.S.C. § 1160.2 The INS did, however,
grant Yepez-Razo a two-year period of voluntary departure,
with employment authorization. Yepez-Razo’s voluntary
departure period expired on January 15, 1995, and she did not
apply for renewal of that period until February 7, 1995.

   In 1995 the INS identified Yepez-Razo as an individual
who may have been wrongly denied Family Unity benefits.
The INS sent her a Settlement Notice pursuant to the Maca-
Alvarez Settlement; the notice specifically referenced Yepez-
Razo’s 1992 application for Family Unity benefits. See gener-
ally Parties in Family Unity Class Action Agree to Settle, 72
Interpreter Releases 283 (Feb. 27, 1995) (discussing Maca-
Alvarez v. INS, No. CIV-S-93-1824 EJG/PAN (E.D. Cal. Feb.
9, 1995)); Settlement in Family Unity Case Final, Information
Seminars Set, 72 Interpreter Releases 588 (May 1, 1995); see
also Stipulated Settlement Agreement, reproduced in 72
Interpreter Releases app. at 301-10 (Feb. 27, 1995). The set-
tlement agreement entitled Yepez-Razo to have the INS
reconsider its denial of her 1992 Family Unity application.
See Stipulated Settlement Agreement, reproduced in 72 Inter-
preter Releases app. at 301-10 (Feb. 27, 1995). On June 13,
1995, the INS approved Yepez-Razo’s application for Family
Unity benefits and another voluntary departure period valid
through June 12, 1997. The INS adjusted Yepez-Razo’s status
to lawful permanent resident in 1996 based on the Petition for
Alien Relative that her father had filed in 1991.
  2
    If the principal applicant applied for lawful status under 8 U.S.C.
§ 1255a, dependent family member applicants for Family Unity were
required to demonstrate that the principal applicant had applied for that
status by May 5, 1988. If the principal applicant applied for lawful status
under 8 U.S.C. § 1160, dependent family members were required to dem-
onstrate that the principal applicant had applied for that status by Decem-
ber 1, 1988. See 8 C.F.R. § 236.12(b). Although Yepez-Razo’s father
legalized under 8 U.S.C. § 1160, the INS told her that she was denied
Family Unity benefits because “the legalized alien did not apply for status
prior to May 5, 1988.”
4582                    YEPEZ-RAZO v. GONZALES
   On November 30, 1998, Yepez-Razo pled guilty to one
count of grand theft in violation of California Penal Code
§ 487(a). On April 21, 1999, the INS served Yepez-Razo with
a Notice to Appear that charged her with removability under
8 U.S.C. § 1227(a)(2)(A)(i), alleging that she committed a
crime involving moral turpitude within five years of admis-
sion to the United States for which a sentence of one year or
longer may be imposed. Yepez-Razo filed an application for
adjustment of status and requested a waiver of inadmissibility
pursuant to INA section 212(h).

   The immigration judge found that Yepez-Razo had not met
the lawful residence requirement of the 212(h) waiver and
ordered that she be removed to Mexico. The BIA affirmed in
a one-paragraph decision, finding that Yepez-Razo lacked
lawful immigration status from January 15, 1995 to June 13,
1995, so that she could not have met the statutory require-
ments of section 212(h).

                                     II.

   Yepez-Razo argues that she was a protected Family Unity
beneficiary during the time period in question, and that she
satisfies the statutory requirements for a 212(h) waiver.3 The
INS argues that Yepez-Razo was not lawfully present from
January 15, 1995 until June 13, 1995 because her first period
of voluntary departure had expired and the second period had
   3
     The 212(h) waiver has traditionally been available if: (1) the alien can
demonstrate that her removal would result in extreme hardship to the
alien’s U.S. citizen or lawfully resident spouse, parent, son or daughter;
and (2) the Attorney General determines that the alien merits a favorable
exercise of discretion. See INA § 212(h)(1)(B), (2). Congress amended the
section in 1996 to indicate, inter alia, that an alien previously admitted for
lawful permanent residence was ineligible for a 212(h) waiver if the alien
had not “lawfully resided continuously in the United States for a period
of not less than 7 years immediately preceding the date of initiation of pro-
ceedings to remove the alien from the United States.” INA § 212(h), 8
U.S.C. § 1182(h).
                       YEPEZ-RAZO v. GONZALES                         4583
not yet commenced. The INS further contends that Yepez-
Razo could not have been a protected Family Unity benefi-
ciary because the INS denied her first application for Family
Unity benefits on January 15, 1993. Accordingly, it argues,
she was not lawfully continuously residing in the United
States during the period in question and cannot statutorily sat-
isfy the requirements of a 212(h) waiver.4

   We observe at the outset that the precise meaning of “law-
fully resided continuously” in section 212(h) is unclear5 and
that the BIA declined to define the phrase below.6 Whatever
the proper definition, we have little doubt that Yepez-Razo
was lawfully residing in the United States for purposes of
212(h).

   [1] The record makes clear that Yepez-Razo was prima
facie eligible for Family Unity benefits when she applied in
1992. See 8 C.F.R. § 236.12-.13. The government acknowl-
edged at argument that “the Family Unity Program is exactly
for a petitioner like this.” Yet the government contends that
we should excuse its clear mishandling of Yepez-Razo’s case,
and instead penalize Yepez-Razo for a five-month “gap” in
  4
     Although only the question of statutory eligibility is before us, we
observe that the hardship equities appear to tip heavily in Yepez-Razo’s
favor. She has spent nearly twenty years in the United States, she is mar-
ried to a U.S. citizen serviceman, has two minor U.S. citizen children, her
father is a naturalized U.S. citizen, and her mother is a lawful permanent
resident.
   5
     Congress indicated that “the provisions governing continuous resi-
dence set forth in INA section 240A . . . shall be applied as well for pur-
poses of waivers under INA section 212(h).” H.R. Conf. Rep. No. 104-
828, at 228 (1996). That guidance is instructive regarding departures from
the United States that would break a term of continuous presence, but does
not inform the intended meaning of “lawfully resided.”
   6
     Though we might endeavor to resolve this matter by defining “lawfully
resided continuously” in the first instance, we are mindful of the fact that
we are prohibited from “intrud[ing] upon the domain which Congress has
exclusively entrusted to an administrative agency.” INS v. Ventura, 537
U.S. 12, 16 (2002) (internal quotation marks and citation omitted).
4584               YEPEZ-RAZO v. GONZALES
her immigration status during her nineteen-year presence in
this country. We will not oblige.

   [2] We find that no such gap existed because Yepez-Razo
was a protected Family Unity beneficiary during the time
period in question. When Congress created the Family Unity
Program as part of the Immigration Act of 1990, Pub. L. No.
101-649, 104 Stat. 4978 (Nov. 29, 1990), it declared that eli-
gible beneficiaries “may not be deported or otherwise
required to depart” the United States and “shall be granted
authorization to engage in employment.” § 301(a)(1), (2) [set
out as a note to 8 U.S.C. § 1255a]. When Congress estab-
lished the principle of unlawful presence in 1996, it noted that
“[n]o period of time in which the alien is a beneficiary of
[F]amily [U]nity protection pursuant to section 301 of the
Immigration Act of 1990 shall be taken into account in deter-
mining the period of unlawful presence in the United States.”
8 U.S.C. § 1182(a)(9)(B)(iii)(III).

   [3] Finally, the INS’s own regulations implementing the
Family Unity Program clarify that Family Unity protections
“shall be considered effective from the date on which the
application was properly filed.” 8 C.F.R. § 236.15(c); see also
Memorandum from Johnny N. Williams, INS Exec. Assoc.
Comm’r, Office of Field Operations, Family Unity Benefits
and Unlawful Presence, File No. HQADN 70/10.19 (Jan. 27,
2003), reprinted in 8 Bender’s Immigration Bulletin 422 app.
F at 422-24 (Mar. 1, 2003) (instructing INS field officers that
an alien protected by Family Unity benefits is “deemed to be
in a period of stay authorized by the Attorney General . . .
[that] will be deemed to begin as of the date the Form I-817,
Application for Family Unity Benefits, was filed”).

   [4] The courts have interpreted the Family Unity Program
to mean that Congress intended to create mandatory protec-
tions for qualifying immigrants. See Hernandez v. Reno, 91
F.3d 776, 780 (5th Cir. 1996) (stating that “Congress unequiv-
ocally has mandated that eligible [Family Unity beneficiaries]
                   YEPEZ-RAZO v. GONZALES                  4585
are entitled to: (1) a stay of deportation, (2) authorization to
be employed in the United States, and (3) documentary evi-
dence of that authorization”); Camarena v. Meissner, 78 F.
Supp. 2d 1044, 1049 (N.D. Cal. 1999) (noting that “the grant
of [F]amily [U]nity benefits is mandatory, not discretionary”).

   [5] The facts lead inexorably to the conclusion that Yepez-
Razo was wrongly denied Family Unity benefits. Yepez-Razo
should have been a protected beneficiary from the date that
she filed her first Family Unity application in 1992. We thus
conclude that Yepez-Razo was lawfully residing in the United
States from January 15, 1995 to June 13, 1995. To hold other-
wise would subvert Family Unity’s broad, protective intent to
keep families together. This is one of those cases in which a
212(h) waiver should be made available “to render relief to a
citizen or lawful resident alien who is in extreme need there-
of.” Matter of B—, 11 I. & N. Dec. 560, 563 (BIA 1966).

  Accordingly, we GRANT the petition for review.
