                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     March 15, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-40746
                        _______________________

                         FRANCISCO GUERRA-MOYA,

                                                    Petitioner-Appellant,

                                   versus

            A.G. WINFREY, INTERIM FIELD OFFICE DIRECTOR,
         BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT and
             ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                                  Respondents-Appellees.

_________________________________________________________________

          On Appeal from the United States District Court
                 for the Southern District of Texas
                          No. 1:03-CV-00149
 ________________________________________________________________
Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

PER CURIAM:*

           Francisco Guerra-Moya appeals the district court’s denial

of his petition for a writ of habeas corpus.           Converting Guerra-

Moya’s habeas petition into a timely filed petition for review of

the decision of the Board of Immigration Affairs (“BIA”), we find

that Guerra-Moya is eligible to apply for discretionary relief

under former INA § 212(c), and therefore GRANT his petition and

REMAND his case to the BIA.

                              I.   Background


     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
           Francisco Guerra-Moya is a citizen and national of Mexico

who entered the United States as a lawful permanent resident

(“LPR”) in 1976.      Since 1976, he has not lived in Mexico and has

continuously resided in the United States.             On August 23, 1982,

Guerra-Moya was convicted of burglary in Texas; under a plea

agreement, he served a two-year suspended sentence on probation,

after which his conviction was set aside.              On March 28, 1997,

Guerra-Moya was convicted of “unlawful carrying of a weapon” in

Texas.     On   February     3,   2000,    the   former    Immigration    and

Naturalization Service (“INS”) issued a notice to appear, charging

Guerra-Moya with removability due to the weapon offense.             At his

hearing before an immigration judge (“IJ”), Guerra-Moya sought

relief in the form of cancellation of removal.            See INA § 240A(a).

The IJ determined that Guerra-Moya was ineligible for relief

because   (1)   his   1982   burglary     conviction   remained   valid   for

immigration purposes and constituted a disqualifying aggravated

felony under the INA, and (2) Guerra-Moya could not show the

requisite seven-year period of continuous residency required for

relief, as his 1982 conviction had terminated his accrual of

continuous residence under the “stop-time” provisions of the INA.

           On appeal, the BIA affirmed the IJ without opinion.

Guerra-Moya then brought a petition for review in this court, which

was dismissed for lack of jurisdiction.           He next petitioned for



                                    -2-
habeas relief in the district court.         Adopting the recommendation

of the magistrate judge, the district court denied relief for

essentially the same reasons as the IJ, holding inter alia that the

current   definition    of     “aggravated      felony”   was     properly

retroactively applied to Guerra-Moya’s 1982 conviction, and that

the 1982 conviction had cut off Guerra-Moya’s accumulation of

continuous residence time for the purposes of discretionary relief.

Guerra-Moya appealed, and while his appeal was pending, the REAL ID

Act, Pub. L. No. 109-13, 119 Stat. 231 (2005) became law.

                             II.   Discussion

          The   REAL   ID    Act   divests    the   district    courts   of

jurisdiction over the habeas petitions of aliens; instead, REAL ID

Act § 106 states that “a petition for review shall be the sole and

exclusive means for judicial review of an order of removal entered

or issued under any provision of [the INA].”        This Court in Rosales

v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733 (5th

Cir. 2005), held that “habeas petitions on appeal as of May 11,

2005 [the effective date of the REAL ID Act] . . . are properly

converted into petitions for review.”           Id. at 736.     As Guerra-

Moya’s appeal was pending at the time the REAL ID Act became law,

we thus convert his habeas petition into a petition for review of

the BIA decision.

          On a petition for review, we review the factual findings

of the BIA under the substantial evidence standard.               Ontunez-

                                    -3-
Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir. 2002).                          The BIA’s

determinations as to purely legal questions are reviewed de novo.

Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002).                           Although

this Court generally reviews only the decision of the BIA on

petitions for review, we may review an IJ’s decision when, as here,

the BIA affirms without opinion.             Thuri v. Ashcroft, 380 F.3d 788,

791 (5th Cir. 2004).

               The      Illegal       Immigration        Reform        and       Immigrant

Responsibility Act of 1996 (“IIRIRA”) eliminated discretionary

relief from removal under INA § 212(c)(formerly codified at 8

U.S.C. § 1182(c)), and replaced it with cancellation of removal

under INA § 240A (8 U.S.C. § 1229(b)).1                 However, the Supreme Court

held in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001) 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.” Id. at 325, 121 S. Ct. at 2293.                  Guerra-Moya’s conviction

for   burglary        was   obtained    through     a    plea   agreement,            and   as

discussed, infra, he would have been eligible to apply for § 212(c)

relief in spite of his burglary conviction.                       Thus, subsequent




      1
             Because we conclude that Guerra-Moya is eligible for § 212(c)
relief, we need not address issues raised relating to cancellation of removal.

                                          -4-
limitations on § 212(c) relief cannot be applied retroactively to

Guerra-Moya’s 1982 conviction.

           Under the former § 212(c), an alien was permitted to seek

discretionary relief from removal provided that he or she (1) was

a legal permanent resident, and (2) had “maintained a lawful

unrelinquished domicile in the United States for seven consecutive

years.”   Ashby v. INS, 961 F.2d 555, 557 (5th Cir. 1992).    Guerra-

Moya plainly meets the first requirement for relief, as he has been

an LPR for nearly thirty years.   The second requirement is slightly

more complicated.   At the time of his burglary conviction, Guerra-

Moya had been an LPR in the United States for a continuous period

of roughly six years, four months.      The IJ and the district court

both concluded that Guerra-Moya’s burglary conviction stopped his

accumulation of lawful residency, and prevented him from reaching

the seven years required for relief.     However, this conclusion was

erroneous, as “St. Cyr does not require an alien to have accrued

seven years of lawful domicile at the time of his or her plea in

order to qualify for relief under § 212(c).”     Alvarez-Hernandez v.

Acosta, 401 F.3d 327, 331 (5th Cir. 2005).     As with the petitioner

in Alvarez-Hernandez, Guerra-Moya entered his guilty plea at a time

when circuit law “allowed aliens to accrue additional time towards

their total period of continuous unrelinquished domicile” until the

initiation of removal proceedings against them.    Id. at 332. Thus,

under Alvarez-Hernandez, Guerra-Moya should have been allowed to

                                  -5-
accumulate continuous residency time until 2000.2            By that point,

he would have been continuously residing in the United States for

more than seven years. Thus, Guerra-Moya meets all the basic

requirements to apply for relief under § 212(c), and the BIA erred

in its treatment of his aggravated felony conviction and its

application of the “stop-time” rule.

                             III.   Conclusion

           In light of this court’s opinion in Alvarez-Hernandez, we

conclude that Guerra-Moya is eligible to apply for discretionary

relief under former INA § 212(c).            Guerra-Moya’s petition for

review is therefore GRANTED, and his case is REMANDED to the BIA,

with instructions that the Board consider his application for

discretionary § 212(c) relief.




      2
            Such a conclusion is also consistent with the language of 8 C.F.R.
§ 1003.44(b)(3).

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