                           In the

United States Court of Appeals
             For the Seventh Circuit

Nos. 09-3912, 10-1282 & 10-3221

M OHSIN H. S IDDIQUI,
                                                      Petitioner,
                              v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                     Respondent.


                 Petitions for Review of an Order
              of the Board of Immigration Appeals.
                         No. A093-056-464



   A RGUED S EPTEMBER 22, 2011—D ECIDED JANUARY 12, 2012




 Before P OSNER, FLAUM, and SYKES, Circuit Judges.
  F LAUM , Circuit Judge. Mohsin H. Siddiqui, a native of
Pakistan, appeals the denial of his legalization applica-
tions by the Administrative Appeals Office (“AAO”),
the appellate body of the U.S. Citizenship and Immigra-
tion Services (“USCIS”). Siddiqui disputes the AAO’s
finding that he failed to prove his continuous residence
in the United States and the AAO’s retroactive applica-
2                          Nos. 09-3912, 10-1282 & 10-3221

tion of the definition of “conviction,” found in the
Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat.
3009, to his 1991 felony.
  We are unable to affirm the AAO’s conclusion
regarding Siddiqui’s failure to establish continuous
residence because the AAO’s decisions lack individu-
alized analysis and do not identify particular deficiencies
in the substantial evidence submitted by Siddiqui.
Further, we conclude that the AAO erred in applying
IIRIRA’s definition to Siddiqui’s offense because Con-
gress did not clearly express its intent to apply the def-
inition retroactively to individuals such as Siddiqui,
whose legalization applications would have been ad-
judicated prior to the enactment of IIRIRA if the govern-
ment had not unlawfully refused in late 1980s to accept
applications from applicants who had briefly left the
country. We therefore vacate the removal order and
remand so that the AAO can properly address the
evidence in support of Siddiqui’s claim of continuous
residence.


                      I. Background
  Siddiqui entered the United States from Pakistan on a
visitor’s visa in December 1979, when he was thirteen
years old. Although his visa expired in April 1980, he
settled down in St. Louis, Missouri, where he lived
with different friends and worked various jobs.
 In 1986, Congress enacted the Immigration Reform and
Control Act (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359,
Nos. 09-3912, 10-1282 & 10-3221                              3

which allows certain aliens who entered the United
States before 1982 and have remained continuously
and unlawfully present to apply for temporary residency
and then to apply for permanent residency one year
later. See 8 U.S.C. § 1255a. This process is known as
“legalization.” See id. In July 1987, Siddiqui attempted
to file an application for legalization, but the Immigra-
tion and Naturalization Service (“INS”) refused to allow
him to submit it as a result of a brief trip to Pakistan
that he had taken.1
  This INS practice, known as “front-desking,” was the
subject of a class action suit. See generally Reno v. Catholic
Soc. Servs., Inc., 509 U.S. 43, 45-49 (1993); Catholic Soc.
Servs., Inc. v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988).
Although the IRCA provides that “[a]n alien shall not
be considered to have failed to maintain continuous
physical presence . . . by virtue of brief, casual or innocent
absences from the United States,’’ 8 U.S.C. § 1255a(a)(3)(B),



1
  INS was abolished on March 1, 2003, and several of its
functions were transferred from the Department of Justice
(“DOJ”) to the Department of Homeland Security (“DHS”).
See Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135 (codified as amended at 6 U.S.C. §§ 101-612). USCIS,
an agency situated within DHS, now handles legalization
applications, with the AAO conducting the appeals. See 8
C.F.R. § 245a.2. Removal proceedings remain within the DOJ
in the Executive Office of Immigration Review. Immigration
judges (“IJs”) conduct the initial adjudication, subject to
review by the Board of Immigration Appeals (“BIA”). See
8 C.F.R. §§ 1003.1, 1003.10.
4                           Nos. 09-3912, 10-1282 & 10-3221

INS frequently refused in the late 1980s to accept legaliza-
tion applications from people, like Siddiqui, who had
taken short trips outside the country. The district court
held that INS’s regulation, which narrowly defined a
“brief, casual and innocent” absence as “a departure
authorized by the Service . . . for legitimate emergency or
humanitarian purposes,” 8 C.F.R. § 245a.1(g) (1989), was
invalid and unenforceable as “inconsistent with the
statutory scheme.” Catholic Soc. Servs., Inc., 685 F. Supp. at
1159-60. The district court required INS to accept late
applications for amnesty from applicants who had been
subjected to this policy. See Catholic Soc. Servs., Inc., 509
U.S. at 47-49. By virtue of his membership in the Catholic
Social Services (“CSS”) class, Siddiqui filed a Form I-687
application for temporary residence in 1990. INS issued
a work authorization document to Siddiqui but did not
adjudicate his application while the CSS litigation was
ongoing.
  The CSS suit was not resolved until 2004, when DHS
entered into a settlement in which it agreed not only
to adjudicate amnesty applications from front-desked
applicants but also to adjudicate them in accordance
with the law as it existed in 1987-1988 (when the applica-
tions were wrongfully rejected). See Settlement Agree-
ment, Catholic Soc. Servs., Inc. v. Ridge, No. S-86-1343-LKK
(E.D. Cal.), available at http://www.uscis.gov/files/article/
CSS_Settlement.pdf. Siddiqui filed a second Form I-687
application in 2005 after the final settlement in the
CSS suit.
  As an outgrowth of the CSS suit and two other class
actions, Congress enacted the Legal Immigration Family
Nos. 09-3912, 10-1282 & 10-3221                        5

Equity (“LIFE”) Act, Pub. L. No. 106-553, 114 Stat. 2762
(2000), to provide a faster path to lawful status for
amnesty applicants. The LIFE Act generally requires
applicants to be members of one of these class actions
and to establish continuous residence in the United
States from 1982 to 1988. See LIFE Act § 1104. In 2002,
Siddiqui filed a Form I-485 application for permanent
residence pursuant to the LIFE Act.
  While his initial amnesty application was pending,
Siddiqui settled in Granite City, Illinois where he
worked as a truck driver. In 1991, Siddiqui was arrested
for possession of a hunting knife. He was found guilty
on December 10, 1991 in the Circuit Court of St. Louis
of Unlawful Use of a Weapon, Carrying a Concealed
Weapon under Missouri Stat. 571.030.1(1), a Class D
felony. The court entered this conviction on February 25,
1992. The court suspended the imposition of a sentence
and mandated three years’ probation, which Siddiqui
completed successfully. Siddiqui moved to set aside
his conviction, but the court concluded that it lacked
jurisdiction because he no longer had a record of a con-
viction.
  As a truck driver, Siddiqui frequently drove a route
between Ontario and Detroit or Buffalo. When he was
returning from Canada on April 19, 1995, he was ques-
tioned by an INS officer who claims that Siddiqui pre-
sented himself as a U.S. citizen. Another INS officer
examined Siddiqui’s Illinois driver’s license and voter
registration. The version of the voter registration
form filed with Madison County states that Siddiqui is a
6                          Nos. 09-3912, 10-1282 & 10-3221

naturalized citizen and is signed by Siddiqui under an
attestation to being a U.S. citizen. The original version
of the form, which Siddiqui retained, states “Kotri
Sind” (Pakistan) as his place of birth and does not
contain the handwritten text stating that he is a
naturalized citizen, but does contain the signed attesta-
tion. According to Siddiqui, he never stated that he was
a U.S. citizen (to the INS officer or on the voter registra-
tion form), and he claims that he did not read the form
carefully before signing it. On the basis of this border
incident, Siddiqui was not permitted to reenter the
United States.
   INS charged Siddiqui with attempting to enter the
country without proper documentation and by falsely
claiming to be a U.S. citizen. INS commenced deporta-
tion proceedings by filing an Order to Show Cause on
February 28, 1997. Although INS was aware that
Siddiqui had a pending I-687 amnesty application, INS
counsel argued that this did not provide any basis for
staying or terminating the deportation proceeding. The
IJ agreed and issued a deportation order on December 5,
2001.
  Siddiqui appealed to the BIA and stated that he was
seeking legalization pursuant to his CSS class member-
ship. The BIA dismissed his appeal on June 25, 2003.
Siddiqui next filed a petition for review, alleging that
the IJ and the BIA erred by failing to terminate or stay
his deportation proceedings because he was eligible for
legalization. Siddiqui v. Ashcroft, No. 03-3998 (6th Cir.
Dec. 16, 2004). The Sixth Circuit held that Siddiqui was
Nos. 09-3912, 10-1282 & 10-3221                         7

barred from obtaining judicial review due to his failure
to make this argument to the BIA.
  On November 10, 2005, Siddiqui voluntarily appeared
in response to a DHS notice and was detained for four
years while DHS continued to review his amnesty ap-
plications. The Chicago USCIS field office director denied
Siddiqui’s 1990 I-687 amnesty application in Decem-
ber 2007 and denied his application under the LIFE
Act in January 2008. In response to Siddiqui’s appeal of
the I-687 denial, USCIS reopened the application, con-
solidated it with the 2005 Form I-687 application, and
reissued its denial in May 2009.
  Siddiqui appealed these denials to the AAO. The AAO
dismissed Siddiqui’s appeals on September 3, 2009, then
sua sponte withdrew and reconsidered its decisions, and
finally dismissed them again on November 5, 2009 after
a de novo review of the case and the evidence. Agreeing
with the USCIS director’s decisions, the AAO con-
cluded that Siddiqui was ineligible for amnesty due to
his failure to prove continuous residence in the United
States for the requisite period and due to his felony
conviction. In spite of the CSS settlement agreement,
the AAO applied the more expansive definition of “con-
viction,” established and made retroactive by sec-
tion 322 of IIRIRA.
  Siddiqui then filed two pro se petitions before this
court, seeking review of his two amnesty denials and
requesting stay of removal: No. 09-3912 (appealing
the LIFE Act denial) and No. 10-1282 (appealing the
Form I-687 denial). We consolidated these cases on
8                          Nos. 09-3912, 10-1282 & 10-3221

April 20, 2010 and ordered the government to respond to
a jurisdictional memorandum, which had been filed by
Siddiqui in response to the government’s motion to
dismiss for lack of jurisdiction. On May 12, 2010, the
government filed a second motion to dismiss.
  Judicial review of amnesty denials is only available
as part of the judicial review of an order of deportation.
See 8 U.S.C. § 1105a (1996); 8 U.S.C. § 1255a(f)(4)(A).
Thus, to facilitate judicial review of the AAO’s deci-
sions, the parties jointly filed a motion on May 21, 2010,
asking the BIA to reissue its June 25, 2003 deportation
decision. The BIA granted this motion and reissued the
decision on August 25, 2010. Siddiqui then filed a timely
appeal (No. 10-3221) of the BIA’s most recent decision.
The present action represents a consolidation of these
three petitions.


                     II. Discussion
  We have jurisdiction to review both the deportation
decision and the amnesty denials. Our jurisdiction to
review the BIA’s deportation decision arises from the
transitional rules of IIRIRA, § 309(c)(1), because the
proceedings were commenced by an order to show cause
issued prior to April 1, 1997, IIRIRA’s effective date. Our
jurisdiction to review the AAO’s amnesty denials arises
indirectly through our jurisdiction to review the deporta-
tion decision. See 8 U.S.C. § 1255a(f)(4)(A) (“There shall
be judicial review of such a denial only in the judicial
review of an order of deportation under section 1105a
of this title (as in effect before October 1, 1996).”). The
Nos. 09-3912, 10-1282 & 10-3221                           9

BIA’s reissuance of its deportation decision resolved
many of the jurisdictional complexities of this case and
brings the removal order and the legalization decisions
properly before us.


A. Continuous Unlawful Residence in the United States
  The AAO denied both of Siddiqui’s legalization applica-
tions on the same two grounds: (1) failure to establish
continuous residence in the United States, and (2) convic-
tion of a felony. Because either ground would have
been sufficient to deny the applications, we must con-
clude that the AAO erred as to both conclusions in order
to grant Siddiqui’s petition. We begin by addressing
the first ground.


 1.    Standard for Establishing Continuous Unlawful
       Residence
      Judicial review of the denial of an application for
      legalization shall be based solely upon the admin-
      istrative record established at the time of the review
      by the appellate authority and the findings of fact
      and determinations contained in such record shall
      be conclusive unless the applicant can establish
      abuse of discretion or that the findings are directly
      contrary to clear and convincing facts contained in
      the record considered as a whole.
8 U.S.C. § 1255a(f)(4)(B). This standard of review has
been characterized as “very narrow.” Ruginski v. INS,
10                          Nos. 09-3912, 10-1282 & 10-3221

942 F.2d 13, 16-17 (1st Cir. 1991) (“[I]t is not sufficient
for the applicant simply to show that different con-
clusions might possibly be drawn from the evidence
submitted in support of the application.”); see also Moosa
v. INS, 171 F.3d 994, 1004 (5th Cir. 1999).2 Given
Siddiqui’s status as a CSS class member, we also
consider pre-IIRIRA law, which required decisions to be
“supported by reasonable, substantial and probative
evidence on the record considered as a whole.” See
8 U.S.C. § 1105a(a)(4) (1996); see also Toptchev v. INS, 295
F.3d 714, 720 (7th Cir. 2002). Under either deferential
standard, we conclude that the AAO abused its discre-
tion by disregarding the detailed evidence submitted by
Siddiqui. Cf. Mema v. Gonzales, 474 F.3d 412, 419 (7th Cir.
2007) (“An applicant for asylum is entitled to a reasoned
analysis, not one which wholly disregards relevant,
probative evidence.”); Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 117 (2d Cir. 2007) (construing an IJ’s use of an
“inappropriately stringent standard” as a legal error).
  Siddiqui filed amnesty applications under two dif-
ferent statutory schemes, which both require the same
burden of proof to establish virtually the same nexus of
facts. Siddiqui must establish by a preponderance of
the evidence that he entered the United States before
January 1, 1982 and that he resided here continuously in



2
  Both parties cite to precedents that we have set forth under
related immigration laws with differing standards of review.
We take these into account yet remain mindful that they are
not binding here.
Nos. 09-3912, 10-1282 & 10-3221                           11

an unlawful status since 1982 and until May 4, 1988
(pursuant to the LIFE Act) or until the date that he at-
tempted to file his application (pursuant to the CSS
settlement). See 8 U.S.C. § 1255a(a)(2)(A); LIFE Act
§ 1104(c)(2)(B)(I). He must also establish that he has
been physically present in the country since November 6,
1986, see 8 U.S.C. § 1255a(a)(3); LIFE § 1104(c)(2)(C),
and that he applied during the application period, see
8 U.S.C. § 1255a(a)(1); LIFE § 1104(c)(2)(A). An applicant
who meets this burden is entitled to amnesty as a matter
of law. See 8 U.S.C. § 1255a(a); LIFE § 1104(c)(2).
  The preponderance of the evidence standard requires
the trier of fact “to believe that the existence of a fact
is more probable than its nonexistence” and to find the
evidence “to be sufficiently reliable and sufficiently
probative to demonstrate the truth of the asserted prop-
osition with the requisite degree of certainty.” Concrete
Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust
for So. Cal., 508 U.S. 602, 622 (1993). The evidence must
demonstrate that the applicant’s claim is “probably
true,” given the factual circumstances of the case. Matter of
E-M-, 20 I. & N. Dec. 77, 79-80 (Comm’r 1989). “The
inference to be drawn from the documentation provided
shall depend on the extent of the documentation, its cred-
ibility and amenability to verification . . . .” 8 C.F.R.
§§ 245a.12(e), 245a.2(d)(5). Although the applicant must
provide evidence other than his own testimony, see 8
C.F.R. §§ 245a.12(f), 245a.2(d)(6), an applicant may
satisfy his burden of proof where there is no adverse
information by submitting affidavits that “are credible
and verifiable [and] are sufficient to establish the facts
12                         Nos. 09-3912, 10-1282 & 10-3221

at issue.” Memorandum of David W. Wolfe at 2 (Feb. 13,
1989) (hereinafter “Wolfe Memo”), reprinted in 66 Inter-
preter Releases 12 (1989).
  Congress intended for the legalization scheme to be
“implemented in a liberal and generous fashion” without
“unnecessarily rigid demands for proof of eligibility.”
H.R. R EP. N O . 99-682, at 72-73 (1986). According to INS
guidance, “[i]t is important to recognize that not every
legalization applicant will be able to produce full docu-
mentary proof of their eligibility and that the regula-
tions provide a variety of ways in which applicants may
satisfy the requirements.” Wolfe Memo at 3; see also
8 C.F.R. § 245a.2(d)(3). Siddiqui’s status as a CSS class
member entitles him to even greater lenity as DHS
agreed to “take into account the passage of time and
attendant difficulties in obtaining corroborative docu-
mentation of unlawful residence.” CSS Settlement ¶ 11.


  2. Application
  Siddiqui’s claims regarding his residence, employ-
ment, and organizational affiliations vary slightly in the
different applications that he filed. Siddiqui claims that he
entered the United States as a visitor some time prior
to April 1980. He claims that he lived in Dallas, Texas
from 1979 to 1980, in St. Louis, Missouri from 1980 to 1989,
and in House Springs, Missouri and Granite City, Illinois
thereafter.
  Siddiqui submitted documents from thirteen indi-
viduals to establish his continuous residence. Five affida-
Nos. 09-3912, 10-1282 & 10-3221                         13

vits are from Siddiqui’s siblings, who are U.S. permanent
residents. Muzaffaruddin Syed Khaja submitted one
declaration and three affidavits, asserting that he met
Siddiqui in 1980, that Siddiqui lived with him in St. Louis
from January 1982 to July 1985, and that Siddiqui
worked as a carpenter, handyman, and car mechanic.
Childhood friend Shahid Bari states that Siddiqui left
Pakistan at least five years before Bari came to the United
States in 1986. Bari also submits that they became reac-
quainted in 1986, lived together for part of 1987, and that
Siddiqui worked at several convenience stores and a
gas station. Sabz Ali states that he met Siddiqui in 1985
and that Siddiqui resided in St. Louis from 1985 to
May 1988. Dr. Mazhar Lakho wrote that Siddiqui lived in
St. Louis starting in 1981, and Cletus Heisserer wrote
that Siddiqui resided continuously in the United States
from the summer of 1981 through June 1987. Younas
Ahmed Khan, a friend and roommate, stated that
Siddiqui lived in Dallas from December 1979 through
April 1980 and in St. Louis from April 1980 through 1989.
Sayed Zaidi submitted an affidavit identical to Khan’s.
Michael Thompson wrote that Siddiqui has been a good
friend of his family since the 1980s. Dr. Abid Nisar
wrote that he knew Siddiqui when he lived in Dallas
and that he employed Siddiqui as a maintenance worker
in St. Louis in 1982.
  The AAO reviewed the affidavits and found them to
have little probative value:
   None of the witness statements provide concrete
   information, specific to the applicant and generated
14                         Nos. 09-3912, 10-1282 & 10-3221

     by the asserted associations with him, which
     would reflect and corroborate the extent of those
     associations and demonstrate that they were a suffi-
     cient basis for reliable knowledge about the ap-
     plicant’s residence during the time addressed in the
     affidavits. To be considered probative and credible,
     witness affidavits must do more than simply state
     that an affiant knows an applicant and that the ap-
     plicant has lived in the United States for a specific
     time period. Their content must include sufficient
     detail from a claimed relationship to indicate that
     the relationship probably did exist and that the
     witness does, by virtue of that relationship, have
     knowledge of the facts alleged.
This language appears verbatim in both decisions with
no further analysis of the affidavits. In its I-687 decision,
the AAO merely listed the names of the affiants; in its
LIFE Act decision, the AAO did not even do that.
Despite acknowledging that the affiants state that they
have known Siddiqui for several years and attest to his
physical presence, the AAO summarily concluded that
the affidavits “fail . . . to establish the applicant’s con-
tinuous unlawful residence in the United States for
the duration of the requisite period.” The AAO broadly
stated that, “individually and together, the witness state-
ments do not indicate that their assertions are probably
true. Therefore, they have little probative value.” In
reaching this conclusion, the AAO did not reference any
of the affidavits in particular or explain why it believed
that the assertions were probably not true.
Nos. 09-3912, 10-1282 & 10-3221                         15

  Siddiqui also presented an official letter from Moham-
med Salim, chairman of Community Relations of the
Islamic Center of Greater St. Louis, stating that Siddiqui
has been an active member since 1980. This type of evi-
dence is expressly recognized as relevant by 8 C.F.R.
§ 245a.2(d)(3)(v). The AAO dismissed this letter as
“lack[ing] most of the information required and there-
fore, has little probative value.”
  Additionally, Siddiqui presented W-2 wage state-
ments for 1985, 1986, and 1988. He also submitted a
1099-MISC for 1988 and Social Security statements for
1986 and 1988. The AAO disregarded this evidence
because it showed only “sporadic earnings during the
requisite period.” In its LIFE Act decision, the AAO
acknowledged that the IRS and Social Security docu-
ments “provide some evidence” but noted that they were
not sufficient to establish that “the applicant resided
continuously for the entire relevant period.”
  Siddiqui argues that the AAO offers only con-
clusory, boilerplate assessments and fails to provide
any individualized analysis of the detailed evidence that
he presented. We agree. An agency abuses its discretion
when it fails to “to issue opinions with rational explana-
tions and adequate analysis of the record.” Gebreeyesus
v. Gonzales, 482 F.3d 952, 954 (7th Cir. 2007) (quoting Kay
v. Ashcroft, 387 F.3d 664, 674 (7th Cir. 2004)); see also
Rhoa-Zamora v. INS, 971 F.2d 26, 34, 36 (7th Cir. 1992)
(requiring “careful, individualized review of the evi-
dence”). Given this lack of analysis, we are unable “to
perceive that [the agency] has heard and thought and not
16                         Nos. 09-3912, 10-1282 & 10-3221

merely reacted.” Gebreeyesus, 482 F.3d at 954 (quoting
Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000)). Where,
as here, the agency uses only generalized language to
reject the evidence, we cannot conclude that the deci-
sions rest on proper grounds. See Punzio v. Astrue, 630
F.3d 704, 709 (7th Cir. 2011) (reversing agency’s denial
because “to read the ALJ’s boilerplate credibility assess-
ment is enough to know that it is inadequate and not
supported by substantial evidence”).
  Siddiqui points out that the boilerplate dismissal has
been used verbatim in at least 536 decisions.3 The AAO
claims that the affidavits fail to indicate that they are
“probably true,” yet—with the exception of the Islamic
Center’s letter—the AAO cites no specific deficiencies.
Contrary to the AAO’s determination, several affidavits
provide “concrete information” that demonstrate a
“sufficient basis for reliable knowledge about the ap-
plicant’s residence.” At minimum, the detailed asser-
tions offered by Khaja, Ali, and Bari warrant discussion
by the AAO and an explanation of their deficiencies.
Khaja submitted four documents, and Ali listed specific
locations where he had met up with Siddiqui. The
AAO’s claim that it has reviewed every document is
wholly unpersuasive in light of the absence of any particu-
larized analysis of these documents. See Escobar v. Holder,
657 F.3d 537, 544 (7th Cir. 2011) (noting that, despite
deferential review, the BIA “may not simply overlook


3
 Worse yet, the AAO included the same boilerplate assess-
ment twice in the span of two pages in its LIFE Act decision.
Nos. 09-3912, 10-1282 & 10-3221                              17

evidence in the record that supports the applicant’s
case” (citation omitted)).
  The government admitted at oral argument that the
AAO’s decisions are “not a complete statement,” but this
concession understates the issue. The AAO’s discussion
of the affidavits, which form the bulk of the evidence,
does not give any indication that the agency conducted
an adequate and individualized analysis of the record.
In defense of the boilerplate text, the government argues
that the AAO was simply reciting the governing law,
which applies in hundreds of cases every year.4 The
boilerplate text, however, does not merely recite a legal
standard but phrases it in a way that preordains the
agency’s conclusion. In any event, the recitation of gov-
erning law does not excuse the AAO from its obliga-
tion to apply the law to the facts of each case.
  Although the AAO did address the letter from the
Islamic Center, the AAO did not explain what the letter
was missing or how this affected the probative weight.
The government points out that the letter fails to
identify Siddiqui’s address, the exact dates of his mem-
bership, and the origin of the information being attested
to. Yet the letter still attests to Siddiqui’s active participa-


4
  The government appended to its brief a chart indicating
the number and status of I-687 applications filed pursuant
to two settlement agreements. Because we rule in favor of
Siddiqui, we need not rule on Siddiqui’s motion to strike this
information. See Sears, Roebuck & Co. v. Murry Ohio Mfg. Co.,
949 F.2d 226, 227 n.1 (7th Cir. 1991).
18                         Nos. 09-3912, 10-1282 & 10-3221

tion since 1980. The absence of some of the elements
enumerated in 8 C.F.R. § 245a.2(d)(3)(v) does dim-
inish the probative value, but it does not eliminate
it entirely—particularly where evidence of Siddiqui’s
residence is provided by other affiants and where Con-
gress, INS, and the CSS settlement all urge flexibility.
  In its LIFE Act decision, the AAO did acknowledge
that the Social Security and wage statements provide
“some evidence” of Siddiqui’s residence. This type of
evidence is designated as an acceptable form of proof.
See 8 C.F.R. § 245a.2(d)(3). We recognize that Siddiqui’s
case would be more straightforward if he provided ob-
jective evidence for every year during the relevant
period; however, the AAO, as well as this court, must
consider the difficulty of supplying official evidence
to corroborate continuous unlawful residence in the
United States. See H.R. R EP . N O . 99-682, at 73
(“[M]any undocumented aliens have been clandestinely
employed and thus may not have the usual trail of rec-
ords.”).
  The liberal standard that the AAO articulated as gov-
erning its review does not comport with the actual stan-
dard it applied. For example, the AAO recognized that
“the director can still have doubts but, nevertheless,
the applicant can establish eligibility” and that it is ap-
propriate for the director to “either request additional
evidence or, if that doubt leads the director to believe
that the claim is probably not true, deny the application.”
See Matter of E-M-, 20 I. & N. Dec. at 79. The AAO never
identified the source of its doubt or why it led to the
Nos. 09-3912, 10-1282 & 10-3221                           19

conclusion that Siddiqui’s claims were “probably not
true.” Equally troubling, the AAO did not request addi-
tional evidence or document any attempts to verify the
affidavits, even though they were easily verifiable. See
Wolfe Memo at 2 (requiring documentation of “attempts
to verify the authenticity of information submitted”). The
affiants had provided their contact information and
indicated their willingness to testify.
   The government attempts to defend the AAO’s deci-
sion by pointing to a number of holes in Siddiqui’s evi-
dence, including no proof of earnings for 1987 and no
reference in the affidavits to Siddiqui’s young age
when the affiants met him. The government also notes
that Siddiqui could not remember his street address in
Dallas or when his visa had expired. Siddiqui appropri-
ately criticizes these defenses as “appellate counsel’s post
hoc rationalizations for agency action.” Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962);
see also N.L.R.B v. Indianapolis Mack Sales & Serv. Inc., 802
F.2d 280, 285 (7th Cir. 1986) (“The Board’s appellate
counsel cannot fill in the holes in the agency’s
decision . . . .” ). We agree with the government that
the siblings’ affidavits are not very helpful as they speak
to Siddiqui’s character rather than his residence, and
we further agree that some of the affidavits contain
only generic language. Nevertheless, these short-
comings were not mentioned by the AAO, and
its decision “stands or falls on its express findings and
reasoning.” Indianapolis Mack Sales & Serv. Inc., 802 F.2d
at 285.
20                         Nos. 09-3912, 10-1282 & 10-3221

   We conclude that the AAO abused its discretion by
failing to conduct an individualized analysis and by
disregarding probative evidence. Its boilerplate deter-
minations are contrary to the detailed evidence in the
record. Although the AAO is not required to “write
an exegesis on every contention an applicant raises,”
Kiorkis v. Holder, 634 F.3d 924, 928-29 (7th Cir. 2011)
(quoting Dobrota v. INS, 195 F.3d 970, 974 (7th Cir. 1999)),
it has a duty to conduct an individualized review and
to explain the reasons for its conclusions in each case.
Because we also find that Siddiqui’s conviction
did not warrant the AAO’s denial of his legalization ap-
plications, we vacate the BIA’s deportation order
and remand so that the AAO can conduct an individual-
ized analysis of the evidence.


B. Application of IIRIRA’s Definition of “Conviction”
  The AAO also denied Siddiqui’s legalization applica-
tions on the basis of his 1991 felony conviction for unlawful
use of a weapon. The AAO observed that IIRIRA broad-
ened the definition of “conviction” for immigration
purposes, see IIRIRA § 322(a) (codified at 8 U.S.C.
§ 1101(a)(48)), and that this definition applies to convic-
tions entered “before, on, or after the date of the enact-
ment,” see IIRIRA § 322(c). The AAO held that, given
his conviction, Siddiqui was neither eligible for tem-
porary resident status, see 8 C.F.R. § 245a.2(c)(1), nor
permanent resident status, see 8 C.F.R. § 245a.11(d)(1).
The AAO made no reference to the CSS settlement, in
which DHS agreed to “adjudicate each application for
Nos. 09-3912, 10-1282 & 10-3221                        21

temporary residence filed on Form I-687 in accordance
with the provisions of section 245A of the Immigration
and Nationality Act, 8 U.S.C. § 1255a, regulations, and
administrative and judicial precedents the INS followed
in adjudicating I-687 applications timely filed during
the IRCA application period.” CSS Settlement ¶ 11.
  Siddiqui argues that, notwithstanding the retroactive
nature of IIRIRA, its definition of “conviction” should
not apply to him. He argues that his legalization applica-
tions should be adjudicated under the law in existence
in 1987-1988, when his application was wrongfully front-
desked. Siddiqui asserts that his suspended sentence
does not qualify as a conviction under pre-IIRIRA law
and therefore does not make him ineligible for legaliza-
tion. The AAO summarily rejected this argument as
“without merit,” but we accept Siddiqui’s argument.
We hold that Congress did not express its clear intent to
apply the new definition to individuals such as Siddiqui,
and therefore the government is bound by the terms of
the CSS settlement and must apply pre-IIRIRA law.


 1. Landgraf Analysis
  Whether a statutory provision applies retroactively is
a legal question, which we review de novo. See
Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 801 (7th Cir.
2005). We follow the guidelines established by the
Supreme Court in Landgraf v. USI Film Products, 511 U.S.
244 (1994), to determine whether a statutory provision
is retroactive. First, we must ascertain whether
Congress has spoken with the “requisite clarity” as to
22                          Nos. 09-3912, 10-1282 & 10-3221

whether the statute should apply retroactively. INS v.
St. Cyr, 533 U.S. 289, 316 (2001); see also Landgraf, 511 U.S.
at 272-73 (“Requiring clear intent assures that Congress
itself has affirmatively considered the potential unfair-
ness of retroactive application and determined that it is
an acceptable price to pay for the countervailing bene-
fits.”). If the intent is clear, “the court and the agency
must give effect to the unambiguously expressed will
of Congress.” Flores-Leon v. INS, 272 F.3d 433, 438 (7th
Cir. 2001). Second, if the statute is silent as to whether
a particular provision is retroactive, we must consider
whether applying the statutory provision retroactively
“would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or
impose new duties with respect to transactions already
completed.” Landgraf, 511 U.S. at 280; see also Jideonwo
v. INS, 224 F.3d 692, 698 (7th Cir. 2000) (“[W]hen congres-
sional intent is unclear, we consider whether the statute
‘attaches new legal consequences to events completed
before its enactment.’ ” (quoting Landgraf, 511 U.S. at
269-70)). “[B]y deferring to Congress when it clearly
expresses its intent that a statute is retroactive and ap-
plying a presumption against retroactivity when congres-
sional intent is ambiguous,” Landgraf’s two-pronged
approach reconciles the conflicting principles that a
court apply the law existing at the time of its decision
and that a court assess the legal effect of conduct under
the law existing when the conduct occurred. Labojewski v.
Gonzales, 407 F.3d 814, 818 (7th Cir. 2005).
  Section 322 of IIRIRA sets forth the new definition of
conviction, see IIRIRA § 322(a), and states that “[t]he
Nos. 09-3912, 10-1282 & 10-3221                            23

amendments made by subsection (a) shall apply to con-
victions and sentences entered before, on, or after the date
of the enactment of this Act.” IIRIRA § 322(c)
(emphasis added). We have previously acknowledged
that this language evinces Congress’s clear intent that
the definition of conviction be applied retroactively.
See Montenegro v. Ashcroft, 355 F.3d 1035, 1037-38 (7th
Cir. 2004); see also St. Cyr, 533 U.S. at 319 n.43. But
our analysis does not end here because, even though
Congress has expressed its intent to apply section 322(a)
retroactively in general, it does not necessarily follow
that Congress has expressed its intent to apply the provi-
sion retroactively in this situation.
  Siddiqui advances an argument along these lines by
arguing that section 322(c) speaks to retroactive applica-
tion in deportation proceedings but is silent as to its
application in legalization proceedings. Siddiqui points
to excerpts from the legislative history of IIRIRA that
articulate Congress’s aim to make the deportation of
criminal aliens easier and faster. See S. R EP. N O . 104-249,
at 2 (1996) (referring to “expediting the removal of
excludable and deportable aliens, especially criminal
aliens” as one of the purposes of the Act). He also
argues that Congress expressed no intent to apply the
new definition to offenses that carry no deportation
consequences.
  We are not persuaded by these arguments. Applying
the new definition in legalization proceedings can indi-
rectly achieve Congress’s objective by removing a
common defense to deportation. By redefining convic-
24                          Nos. 09-3912, 10-1282 & 10-3221

tion, Congress has thus redefined the category of offenses
that can lead to deportation. Moreover, the structure of
IIRIRA belies Siddiqui’s contention that the definition
applies retroactively only to deportation proceedings.
The amended definition of “conviction” is codified in
8 U.S.C. § 1101(a), which provides a list of definitions
that govern the entire chapter. The chapter, labeled
“Immigration and Nationality,” encompasses a broad
range of provisions related to such topics as admission
qualifications, removal, adjustment of status, and natural-
ization. Furthermore, IIRIRA subsection 322(a)(2) identi-
fies two conforming amendments—of which one modi-
fies a provision about visa eligibility. Thus, by its own
terms, IIRIRA’s new definition of conviction does not
apply solely to deportation. Other circuits have applied
the definition retroactively in legalization proceedings,
and we find nothing to lead us to a different result here.
See, e.g., Moosa, 171 F.3d at 997-98, 1005-06; cf. Puella v.
Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 331-
32 (2d Cir. 2007) (applying section 322 in a naturaliza-
tion proceeding).
  Although we conclude that Congress expressed its
intent for section 322 to apply retroactively in legaliza-
tion proceedings, we are unable to conclude that
Congress also expressed its intent to apply section 322
retroactively to people afforded nunc pro tunc relief as a
result of DHS’s wrongdoing.5 The Supreme Court has



5
  Nunc pro tunc, a Latin phrase meaning “now for then,”
“refers to the power of a court to treat something done
                                            (continued...)
Nos. 09-3912, 10-1282 & 10-3221                              25

referred to the standard for finding unambiguous con-
gressional intent as “demanding” and requiring “unmis-
takable clarity.” St. Cyr, 533 U.S. at 316, 318; see also
Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997) (noting that
the language must be “so clear that it could sustain
only one interpretation”). We recognize that DHS had
not yet entered into the CSS settlement when Congress
enacted IIRIRA, and therefore Congress did not
expressly carve the CSS class out of the reach of this
provision. Yet Congress’s intentions in enacting this
retroactive provision do not comport with its applica-
tion to people in Siddiqui’s position—namely, people
who are entitled to have their legalization applications
adjudicated under pre-IIRIRA law by virtue of agency
wrongdoing and a settlement entered into by DHS and
approved by a federal court. Indeed, the very fact that
DHS agreed to apply pre-IIRIRA law in the CSS settle-
ment demonstrates that DHS construed IIRIRA’s retroac-
tivity provision as silent with respect to the class of
individuals harmed by DHS’s front-desking practice.6


5
  (...continued)
now–typically a court order–as effective as of an earlier date.”
Gutierrez-Castillo v. Holder, 568 F.3d 256, 261 (1st Cir. 2009).
6
  After briefing was completed, Siddiqui submitted a Rule 28(j)
Notice of Supplemental Authorities, arguing that res judicata,
based on the CSS settlement, bars DHS from applying IIRIRA’s
definition of conviction to him. Rule 28(j) does not provide
a second forum for raising new or different arguments. See
Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007). Although
                                                 (continued...)
26                          Nos. 09-3912, 10-1282 & 10-3221

DHS cannot, without any explanation, renege on its legal
commitment by reversing its interpretation of this statu-
tory provision. The AAO’s decision simply quotes
section 322(c) and cites to Matter of Punu, 22 I. & N. Dec.
224, 1998 WL 546634 (BIA 1998)7 for its conclusion
that IIRIRA’s definition applies to Siddiqui. But neither
IIRIRA nor Matter of Punu discuss the applicability of
the retroactivity provision to those expressly granted
nunc pro tunc relief due to the agency’s wrongdoing.
Therefore, as to Landgraf’s first inquiry, we conclude
that the statutory provision is silent.
   Because we find no clear indication of Congress’s
intent, we turn to the second step of the Landgraf analysis.
See Landgraf, 511 U.S. at 280; Faiz-Mohammad, 395 F.3d
at 804. We must “determine whether a statute operates
retroactively in the case before the court for purposes
of triggering the presumption against retroactive ap-
plication.” Labojewski, 407 F.3d at 819. To do so, we
must consider whether section 322 “would impair rights
a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with



6
   (...continued)
Siddiqui advanced several arguments based on the CSS settle-
ment in his briefs, he did not make a res judicata argument.
Based on our determinations on the merits of this case, we
find it unnecessary to address this issue.
7
  The AAO actually cited to Matter of Puna, 22 I. & N. Dec. 224
(BIA 1996), a case that we are unable to locate and presume
to be a citation error.
Nos. 09-3912, 10-1282 & 10-3221                          27

respect to transactions already completed.” Landgraf,
511 U.S. at 280. We also look to “familiar considerations
of fair notice, reasonable reliance, and settled expecta-
tions,” id. at 270, and to “the longstanding principle of
construing any lingering ambiguities in deportation
statutes in favor of the alien,” INS v. Cardoza-Fonseca,
480 U.S. 421, 449 (1987).
  Section 322 does attach new legal consequences
to events completed before its enactment: Siddiqui at-
tempted to apply for legalization in 1987 but INS refused
to accept his application. Siddiqui was then convicted of
a crime in 1991 that did not qualify as a deportable
offense under then-existing laws. The agency’s wrong-
doing, coupled with the retroactive application of the
new definition, impairs rights that Siddiqui possessed
when he applied for adjustment of status. Cf. Labojewski,
407 F.3d at 822; Arevalo v. Ashcroft, 344 F.3d 1, 14-15
(1st Cir. 2003) (holding that the application of an IIRIRA
provision to petitioner, who had applied prior to
IIRIRA’s effective date, would “have an unfairly retroac-
tive effect on the petitioner’s rights and expectations”).
  We therefore apply the presumption against retro-
activity and construe the new definition of conviction as
inapplicable to Siddiqui due to the absence of Congress’s
clear indication. See Fernandez-Vargas v. Gonzales, 548 U.S.
30, 37-38 (2006). Congress has the authority to redefine
convictions and to retroactively apply the definition, but
“in legislating retroactively, Congress must make its
intention plain.” St. Cyr, 533 U.S. at 325 n.55. Congress
did not make its intention plain that IIRIRA’s expanded
28                            Nos. 09-3912, 10-1282 & 10-3221

definition of conviction would apply to individuals
entitled to have their applications adjudicated under pre-
IIRIRA law due to the government’s refusal to accept
their applications. Because we can find no indication
that Congress considered the question of whether to
apply section 322 retroactively to aliens who are afforded
nunc pro tunc relief, we hold that the AAO is bound by the
terms of the CSS settlement to adjudicate Siddiqui’s
application under the laws as they existed when INS
unlawfully refused to accept his legalization application.8



8
   In so holding, we decline to reach the same result as
Gutierrez-Castillo v. Holder, a First Circuit case that concluded
that granting nunc pro nunc relief from the retroactive ap-
plication of IIRIRA’s definition of “aggravated felony” would
conflict with the text and congressional intent. 568 F.3d 256, 261-
62 (1st Cir. 2009). The First Circuit also found nunc pro tunc
relief inappropriate because the agency had not erred and
had in fact delayed the proceedings for Gutierrez’s benefit. See
id. at 262. The court labeled it “sheer bad luck” that IIRIRA
was enacted before Gutierrez’s hearing. Id. Siddiqui’s situa-
tion is distinguishable because the agency’s wrongdoing
caused his amnesty application not to be adjudicated in 1987
and not to be adjudicated from 1988 to 2004 during the litiga-
tion about this wrongdoing. We are not confronted with
the issue that faced the First Circuit: whether an agency or
court can grant nunc pro tunc relief to shield a petitioner from
the regular application of a retroactive statute. We are
instead confronted with the unique situation in which the
agency’s wrongful actions prevented the application from
being adjudicated under pre-IIRIRA law. We conclude that
                                                     (continued...)
Nos. 09-3912, 10-1282 & 10-3221                                    29

    2. Application
  Prior to IIRIRA, there was no federal statute
defining “conviction” for immigration purposes. Instead,
the BIA generally relied on the state law effects of an
offense to determine whether it qualified as a convic-
tion. See Matter of Ozkok, 19 I. & N. Dec. 546, 549-50,
1988 WL 235459 (BIA 1988). But the BIA concluded in
1988 that this approach was unduly deferential to state
definitions, allowing aliens to escape the immigration
consequences intended by Congress. Id. In Matter of
Ozkok, the BIA adopted a broader test for definition
conviction, which established, inter alia, that a conviction
exists for immigration purposes when “a judgment or
adjudication of guilt may be entered if the person
violates the terms of his probation or fails to comply
with the requirements of the court’s order, without avail-
ability of further proceedings regarding the person’s
guilt or innocence of the original charge.” Id. at 551-52.
According to INS, for deferred adjudications of guilt, “the


8
  (...continued)
Congress did not speak to this situation and therefore
nunc pro tunc relief is not barred. DHS agreed to provide this,
a court approved this, and we hold DHS (through the AAO)
to this pledge.
  Moreover, unlike the First Circuit whose precedent does not
support a constitutional argument against retroactive ap-
plication of the statute, see Gutierrez-Castillo, 568 F.3d at 261 n.4,
we have recognized that the retroactive application of a
statute redefining conviction can violate due process. See
Batanic v. INS, 12 F.3d 662, 667-68 (7th Cir. 1993).
30                         Nos. 09-3912, 10-1282 & 10-3221

state authority under which the court acted must be
reviewed, and the test enunciated in Ozkok . . . must be
applied.” Memorandum of Richard Norton (Apr. 22,
1987) (hereinafter “Norton Memo”), reprinted in 65 Inter-
preter Releases 16, App’x I (1988). The Ozkok test was
binding on all DHS officers and employees, see 8 C.F.R.
§ 1003.1(g), and applied during the amnesty application
period, see Norton Memo.
  Under Missouri law, a court may suspend the imposi-
tion of sentence. M O . R EV . S T. § 557.011.2(3). An appeal
is only available if a probation violation occurs. See
Hoskins v. State, 329 S.W.3d 695, 698 n.3 (Mo. 2010). If
none occurs, there is no final judgment to review and no
criminal conviction on the offender’s record. See id.
Siddiqui received a suspended imposition of sentence
and completed probation without incident. Consequently,
he could not appeal the finding of guilt, even though
there were “further proceedings” available as to his “guilt
or innocence of the original charge.” Ozkok, 19 I. & N. Dec.
at 552. Therefore, Siddiqui’s offense does not qualify as
a conviction for immigration purposes under Ozkok,
the law that existed during the IRCA application period.
  Congress did not believe that Ozkok went far enough
to expand the scope of “conviction.” See H.R. R EP. N O .
104-828; see also Francis v. Gonzales, 442 F.3d 131, 140-41
(2d Cir. 2006). In enacting IIRIRA in 1996, Congress
further broadened the definition by expressly defining
“conviction” for immigration purposes as:
     a formal judgment of guilt of the alien entered by a
     court or, if adjudication of guilt has been withheld,
     where—
Nos. 09-3912, 10-1282 & 10-3221                            31

   (I) a judge or jury has found the alien guilty . . . , and
   (ii) the judge has ordered some form of punishment,
   penalty, or restraint on the alien’s liberty to be im-
   posed.
IIRIRA § 322(a) (codified at 8 U.S.C. § 1101(a)(48)(A)). We
have recognized that IIRIRA “eliminated the finality
requirement for a conviction” and instead “treats an alien
as ‘convicted’ once a court enters a formal judgment of
guilt.” Montenegro, 355 F.3d at 1037-38. Thus, Siddiqui’s
offense falls within IIRIRA’s definition of “conviction.”
    Because section 322(c) operates to impair rights
that Siddiqui possessed when he acted and because
Congress did not plainly express its intention to include
individuals entitled to nunc pro tunc relief under the
retroactive sweep of section 322, IIRIRA’s new definition
of conviction may not be applied retroactively to
Siddiqui. Under the pre-IIRIRA definition of conviction,
Siddiqui’s offense does not render him ineligible for
amnesty. Therefore, the AAO is not permitted to rely on
the weapons offense as a ground for denying either of
Siddiqui’s legalization applications.
  This conclusion is supported by our holding in Batanic
that the petitioner “must, consistent with due process, be
able to apply for asylum nunc pro tunc,” notwithstanding
the intervening statute that barred this relief. 12 F.3d
at 667-68. In Batanic, the BIA ordered a new hearing
because Batanic had been denied his right to counsel at
his hearing before the IJ. Id. at 664. But before the new
hearing, Congress passed the Immigration Act of 1990,
Pub. L. No. 101-649, making Batanic ineligible for asylum
32                         Nos. 09-3912, 10-1282 & 10-3221

due to his aggravated felony conviction. Id. The IJ and
BIA relied on the new statute and denied Batanic’s ap-
plication. We reversed. See id. at 668. Because the proce-
dural defect caused him to lose an opportunity for statu-
tory relief, a new hearing could not cure the defect. Id. at
667. We concluded that this amounted to a due process
violation and granted nunc pro tunc relief. See id. at 668;
cf. Tamas-Mercea v. Reno, 222 F.3d 417, 427 (7th Cir. 2000)
(finding no Batanic-style due process violation where
“there was no evidence that a procedural defect worked
to deprive Mr. Tamas of a specific statutory right.”).
  In Batanic, we used the approach set forth in Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 844-45 (1984), to determine what deference to
give to the BIA’s retroactive application of the statute.
See 12 F.3d at 665-66. The following year, the Supreme
Court decided Landgraf, which now dictates our
approach to determining a statute’s retroactive effect.
Despite this shift, the considerations under the two frame-
works are similar. In Batanic, our first inquiry was to
discern whether Congress had clearly spoken. See id. at
665. We “search[ed] for a congressional directive on
how the amended asylum statute is to be applied in a
situation in which a person would have had the benefit
of prior law but for a procedural error that occurred
before to the effective date of the 1990 Amendments”—but
we found none. Id. Under Landgraf, we ask virtually
the same question and similarly find no congressional
directive. In Batanic, under the second step of Chevron,
we concluded that the BIA’s interpretation was not rea-
sonable. Id. at 665-66. We based this determination on
Nos. 09-3912, 10-1282 & 10-3221                           33

the BIA’s lack of analysis and inconsistent approach, as
well as due process concerns. Id. at 666. In the present
case, under the second step in Landgraf, we conclude
that the AAO erred by giving the statutory provision
an impermissible retroactive effect. We base this deci-
sion on the fact that it impairs rights that Siddiqui pos-
sessed when he had applied for legalization and rights
that he would have exercised but for the agency’s wrong-
doing. We are also persuaded here, as we were in
Batanic, by the AAO’s lack of analysis, DHS’s inconsistent
interpretation, and the due process concerns. Thus, our
holding in Batanic remains persuasive and informs
our analysis.
  In arguing that IIRIRA’s definition of conviction
applies to Siddiqui, the government relies heavily on
Moosa v. INS, 171 F.3d 994 (5th Cir. 1999). In that case, the
legalization director denied Moosa’s application in 1992
because Moosa had pleaded guilty to child molestation.
Id. at 1002. However, Moosa had received a deferred
adjudication, which should have meant that his offense
did not qualify as a “conviction” under then-existing
laws. Id. at 1000-02. This error was not rectified by
the Legalization Authorization Unit (“LAU,” now
known as the AAO) because the LAU erroneously denied
Moosa’s appeal as untimely. Id. at 1002. By the time INS
discovered this mistake and remanded, Congress had
enacted IIRIRA. Id. The LAU applied section 322 and
denied the application. Id. Moosa argued that applying
the new definition to him raised retroactivity concerns
by increasing his liability for past conduct. Id. at 1009.
The Fifth Circuit rejected this argument, concluding that
34                         Nos. 09-3912, 10-1282 & 10-3221

the language of section 322 was clear and that Moosa had
not reasonably relied on pre-IIRIRA law because the
governing standard when he pleaded guilty actually
interpreted his offense as a conviction. Id. The court
refused to “second-guess [the] policy choices properly
made by the legislative branch.” Id.
   We decline to reach the same conclusion as the Fifth
Circuit regarding Congress’s directive. We agree that the
plain language of section 322(c) demonstrates Congress’s
intent that the definition be applied retroactively, but
we believe that the first prong of Landgraf counsels us to
consider a narrower and more nuanced inquiry. We do
not read the generic language in section 322 as conveying
with “unmistakable clarity” that Congress intended to
apply the new definition to applicants who, contrary to
Congress’s intent in 8 U.S.C. § 1255a(a)(3)(B), were pre-
vented from applying for legalization. Furthermore, the
specific circumstances here differ significantly from
Moosa, where the petitioner failed to establish any af-
firmative misconduct on the part of the agency. See
171 F.3d at 1004-05. Siddiqui belongs to the CSS class,
which was granted relief after eighteen years of litiga-
tion involving INS’s unlawful practice of front-
desking applications. This practice prevented adjudica-
tion of Siddiqui’s legalization application under pre-
IIRIRA law. The due process concerns that we
find present in Siddiqui’s case (and similar to those
we found in Batanic) did not confront the Fifth Circuit
in Moosa.
   Because we conclude that Congress did not express
its clear intent to apply IIRIRA’s definition of “conviction”
Nos. 09-3912, 10-1282 & 10-3221                              35

retroactively to individuals such as Siddiqui, we hold
that government is bound by the terms of the CSS settle-
ment and must apply pre-IIRIRA law.9


C. Failure to Stay or Terminate Deportation Proceedings
  Lastly, Siddiqui argues that his deportation pro-
ceedings should have been stayed or terminated as a
result of his pending applications for amnesty. We do not
reach this issue for we hold that Siddiqui is entitled
to review of his amnesty applications. 1 0 If Siddiqui
prevails before the AAO on remand and legalization
is granted, his “final order of exclusion, deportation, or
removal shall be deemed canceled as of the date of the
approval.” 8 C.F.R. § 245a.20(e)(1) (LIFE Act).1 1 If Siddiqui
does not prevail on remand, his argument about the


9
   Because we require the AAO to adjudicate the applications
under pre-IIRIRA law, we do not address Siddiqui’s alterna-
tive arguments that his offense does not qualify as a con-
viction under IIRIRA and that retroactive application con-
stitutes an equal protection violation.
10
  The government argues that res judicata, arising from the
Sixth Circuit’s review, bars Siddiqui from making this argu-
ment. Because we do not consider Siddiqui’s argument,
we need not address the government’s counter-argument.
11
   Siddiqui asserts, without citation, that this regulation also
represents a codification of “longstanding agency practice in
IRCA/CSS claims.” We need not reach the underdeveloped
issue because it is sufficient that his LIFE Act application
has this effect.
36                        Nos. 09-3912, 10-1282 & 10-3221

BIA’s failure to stay or terminate his proceedings will
also fail because Siddiqui cannot establish any prejudice
that this caused him. As a consequence of our vacation
of the BIA’s decision and our instructions to the
AAO, Siddiqui now has the opportunity to relitigate
his legalization decisions.
  Because we conclude that the AAO abused its discre-
tion, we grant Siddiqui’s petition for review and vacate
the BIA’s order of removal. Siddiqui may return to the
AAO for a reconsideration of his legalization applica-
tions involving an individualized analysis of the
evidence presented.


                    III. Conclusion
  For the foregoing reasons, we G RANT Siddiqui’s peti-
tion, V ACATE the BIA’s deportation order, and R EMAND
for further proceedings consistent with this opinion.




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