Dulce M. Zaragoza v. MERRICK B. GARLAND, Attorney General of the United States

In the
United States Court of Appeals
for the Seventh Circuit
____________________
Nos. 19-3437 & 20-1591
DULCE M. Z ARAGOZA,
Petitioner,
v.
M ERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A061-636-606
____________________
A RGUED DECEMBER 3, 2020 — DECIDED NOVEMBER 8, 2022
____________________
Before S YKES , Chief Judge, and F LAUM and S T. EVE, Circuit
Judges.
S YKES , Chief Judge. Dulce Zaragoza, a native and citizen of
Mexico and a lawful permanent resident of the United
States, pleaded guilty to the Indiana offense of criminal
neglect of a dependent after locking her six-year-old son in a

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2 Nos. 19-3437 & 20-1591
closet for six hours. She was sentenced to one year in jail
suspended to time served plus 30 days, with the remainder
of the sentence to be served on probation. After completing
her sentence, she traveled abroad and presented herself for
admission when she returned. The Department of Home-
land Security (“DHS”) found her inadmissible based on the
neglect conviction, which the agency classified as a “crime
involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). She
was placed in removal proceedings.
Zaragoza fought removal on several grounds, with her
arguments expanding as the proceedings progressed. Before
the immigration judge, she argued that the Indiana neglect
offense does not qualify as a crime involving moral turpi-
tude. The judge disagreed and entered a removal order, and
Zaragoza appealed to the Board of Immigration Appeals
(“BIA” or “the Board”). In the meantime, she petitioned the
state court to modify her sentence. Her purpose was to bring
herself within the so-called “petty offense” exception to
inadmissibility, which is available to first-time offenders
sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The
state court obliged and reduced her one-year sentence to
179 days. With that order in hand, Zaragoza argued before
the BIA that Indiana’s neglect offense is not a crime involv-
ing moral turpitude, and regardless, the petty-offense excep-
tion applies.
The BIA rejected both arguments, agreeing with the im-
migration judge that the Indiana offense is categorically a
crime involving moral turpitude, and further holding that
the sentence-modification order was not effective to estab-
lish Zaragoza’s eligibility for the petty-offense exception. For
the latter conclusion, the Board relied on a recent decision of

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Nos. 19-3437 & 20-1591 3
the Attorney General declaring that state-court sentence-
modification orders are effective for immigration purposes
only if based on a legal defect in the underlying criminal
proceeding. Matter of Thomas & Thompson (“Thomas”), 27 I. &
N. Dec. 674, 690 (Att’y Gen. 2019).
Zaragoza sought reconsideration, this time adding two
more arguments: (1) the phrase “crime involving moral
turpitude” is unconstitutionally vague; and (2) the Attorney
General’s decision in Thomas is impermissibly retroactive as
applied to her. The BIA disagreed on both counts. Zaragoza
petitioned for review in this court, reprising the entire array
of arguments she presented to the Board.
We agree with the BIA’s resolution of all issues but one:
applying Thomas in Zaragoza’s case is an impermissibly
retroactive application of a new rule. We therefore remand
to the BIA for further proceedings consistent with this
opinion.
I. Background
After emigrating from her native Mexico, Zaragoza set-
tled in Indiana with her three children and in August 2011
became a lawful permanent resident. On October 9, 2013, she
punished her six-year-old son by barricading him in a closet
while she was at work. She left him with nothing except a
cup of water, a hot-dog bun with ketchup on it, and a bowl
to urinate in if needed. After instructing her older son not to
release the younger boy from the closet, she left the house.
The boy remained in confinement for six hours.
Zaragoza was charged in state court with neglect of a de-
pendent in violation of Indiana Code § 35-46-1-4(a)(2), which
makes it unlawful for “[a] person having the care of a de-

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4 Nos. 19-3437 & 20-1591
pendent … [to] knowingly or intentionally … abandon[] or
cruelly confine[] the dependent.” Though the offense was a
Class D felony, id. § 35-46-1-4(a) (2013),1 punishable by a
term of imprisonment of up to three years, id. § 35-50-2-7(a),
Zaragoza entered into a plea agreement pursuant to a statute
that permitted the court to enter judgment for a Class A
misdemeanor, id. § 35-5-2-7(c), punishable by a maximum
term of imprisonment of one year, id. § 35-50-3-2. On
March 31, 2014, a state-court judge approved the plea
agreement, accepted Zaragoza’s guilty plea, and sentenced
her to one year in jail suspended to time served plus 30 days,
with the remainder of the one-year term to be served on
probation, and a $50 fine. She completed her sentence and
was discharged from supervision in March 2015.
A few months later, Zaragoza traveled abroad. On July 7,
2015, she returned through Chicago and presented herself
for inspection as a returning lawful permanent resident.
Customs officials discovered her neglect conviction and
paroled her into the United States in anticipation of removal
proceedings. On August 6 DHS initiated removal proceed-
ings based on her neglect conviction, which the agency
classified as a “crime involving moral turpitude,” making
her inadmissible under § 1182(a)(2)(A)(i)(I).
Zaragoza moved to terminate the proceedings, arguing
that neglect of a dependent is not a crime involving moral
turpitude. An immigration judge disagreed, concluding that
Indiana’s neglect offense is a crime involving moral turpi-
tude under the categorical approach as explained in the
1 Indiana now punishes the base neglect offense as a Level 6 felony. I ND .
C ODE § 35-46-1-4(a) (2021).

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Nos. 19-3437 & 20-1591 5
BIA’s decision in Matter of Silva-Trevino, 26 I. & N. Dec. 826,
830 (B.I.A. 2016). The judge denied Zaragoza’s motion and
ordered her removed.
Zaragoza sought review in the BIA. While her appeal
was pending, she petitioned the state court to modify her
sentence to 179 days in prison. That was an odd request on
the surface, not least because Zaragoza had long since
completed her sentence. But her purpose was apparent in
light of the removal peril she faced. As a first-time offender,
if her sentence was not “in excess of 6 months,” she would
qualify for the petty-offense exception to inadmissibility
under § 1182(a)(2)(A)(ii)(II). The prosecutor approved
Zaragoza’s request, and on February 13, 2019, the state court
entered an order modifying her sentence to 179 days sus-
pended, with all terms and financial obligations satisfied.
Back before the BIA, Zaragoza reiterated her position
that the Indiana neglect offense is not a crime involving
moral turpitude, but she now also claimed that the petty-
offense exception lifted the inadmissibility bar. The BIA
rejected both arguments. In a decision issued on
November 14, 2019, the Board first agreed with the immigra-
tion judge’s ruling that the neglect offense is categorically a
crime of moral turpitude. Turning to the petty-offense
exception, the Board explained that under the Attorney
General’s recent decision in Thomas, issued just a few weeks
earlier, the state court’s sentence-modification order had no
effect for immigration purposes because it was not based on
a procedural or substantive defect in the underlying criminal
proceeding. Zaragoza’s eligibility thus turned on her origi-
nal sentence, not her sentence as modified. Because she was
originally sentenced to one year in prison, she did not

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6 Nos. 19-3437 & 20-1591
qualify for the exception. The Board dismissed her appeal,
and Zaragoza petitioned for review of that order.
In the meantime, she asked the BIA to reconsider its deci-
sion. Her motion added two new arguments. She now
claimed that the statutory phrase “crime involving moral
turpitude” is unconstitutionally vague. She also argued that
applying the Attorney General’s decision in Thomas to her
amounted to an impermissibly retroactive application of a
new rule.
The Board denied the reconsideration motion, standing
by its decision that the Indiana neglect offense is a crime
involving moral turpitude and rejecting the new vagueness
challenge to the statute. The Board also rejected Zaragoza’s
claim that applying Thomas in her case is an impermissibly
retroactive application of a new rule. Zaragoza petitioned for
review of the BIA’s second order, and we consolidated the
two petitions. See 8 U.S.C. § 1252(b)(6).
II. Discussion
Zaragoza reprises the full assortment of legal challenges
that she raised before the agency. Some of the issues are
complex, and two have attracted support from amici curiae.
For ease of presentation, we separate them into two groups.
In the first group are arguments pertaining to the mean-
ing and application of § 1182(a)(2)(A)(i)(I)—specifically,
whether the phrase “crime involving moral turpitude” is
unconstitutionally vague and whether Indiana’s neglect
offense qualifies as such a crime under the categorical ap-
proach and the BIA’s decision in Silva-Trevino. In the second
group are claims pertaining to the petty-offense exception,
including Zaragoza’s arguments that the Attorney General’s

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Nos. 19-3437 & 20-1591 7
decision in Thomas is wrong as a matter of law and not
entitled to deference and is impermissibly retroactive as
applied to her.
Because these are legal issues, our standard of review is
de novo, Meraz-Saucedo v. Rosen, 986 F.3d 676, 684 (7th Cir.
2021), with one important qualifier. We defer to the agency’s
reasonable interpretation of the immigration laws in its
precedential decisions and also its “[n]on-precedential
decisions that rely on applicable Board precedent.” Cano-
Oyarzabal v. Holder, 774 F.3d 914, 916 (7th Cir. 2014).
A. Crime Involving Moral Turpitude
1. Unconstitutional Vagueness
Zaragoza begins with the argument that the statutory
phrase “crime involving moral turpitude” is unconstitution-
ally vague.2 She primarily relies on a trio of recent Supreme
Court decisions addressing vagueness challenges to the
definitions of “crime of violence” and “violent felony” in
statutes that use these terms to denote certain convictions
that carry sentencing and immigration consequences. See
United States v. Davis, 139 S. Ct. 2319 (2019) (residual clause
defining “crime of violence,” 18 U.S.C. § 924)); Sessions v.
Dimaya, 138 S. Ct. 1204 (2018) (residual clause defining
“crime of violence,” 18 U.S.C. § 16); Johnson v. United States,
576 U.S. 591 (2015) (residual clause defining “violent felony,”
18 U.S.C. § 924(e)).
2 Zaragoza purports to challenge the statute both facially and as applied,
but she does not delineate any ground on which the phrase “crime
involving moral turpitude” is vague only as applied to her. Rather, her
argument rests entirely on her view that the phrase is inherently vague.
We therefore construe this as a facial challenge.

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8 Nos. 19-3437 & 20-1591
Zaragoza’s challenge immediately runs headlong into
Jordan v. De George, 341 U.S. 223, 232 (1951), a much earlier
decision specifically holding that the phrase “crime involv-
ing moral turpitude” as used in immigration law—there, the
Immigration Act of 1917—is not unconstitutionally vague.
Jordan squarely controls here.
Zaragoza responds that Jordan is no longer authoritative
because it did not consider the categorical way in which the
BIA and the courts now classify convictions for immigration
and sentencing purposes. But she challenges the language of
the statute, not the decision method courts use to classify
convictions for these purposes. And Jordon squarely holds
that the statutory phrase “crime involving moral turpitude”
as used in immigration law is not unconstitutionally vague.
Zaragoza also argues that Jordan may be disregarded be-
cause it is out of sync with the Court’s intervening decisions
in Johnson, Dimaya, and Davis. That argument cannot succeed
in the court of appeals. Jordan is binding on us until the
Supreme Court says otherwise. State Oil Co. v. Kahn, 522 U.S.
3, 20 (1997) (“[I]t is this Court’s prerogative alone to overrule
one of its precedents.”). The Court has repeatedly reaffirmed
this point: “If a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some
other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.” Agostini v.
Felton, 521 U.S. 203, 237–38 (1997) (quotation marks and
alteration omitted).
Accordingly, we and other courts have already rejected
post-Johnson vagueness challenges to the phrase “crime
involving moral turpitude.” Dominguez-Pulido v. Lynch,

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Nos. 19-3437 & 20-1591 9
821 F.3d 837, 842–43 (7th Cir. 2016); see also Islas-Veloz v.
Whitaker, 914 F.3d 1249, 1250 (9th Cir. 2019) (“The Court’s
more recent decisions in Johnson and Dimaya did not reopen
inquiry into the constitutionality of the phrase.”); Moreno v.
Att’y Gen., 887 F.3d 160, 166 (3d Cir. 2018); Boggala v. Sessions,
866 F.3d 563, 570 (4th Cir. 2017). We do so again here.
2. Neglect of a Dependent Is a Crime Involving Moral
Turpitude
Zaragoza next challenges the Board’s conclusion that the
Indiana neglect offense qualifies as a crime involving moral
turpitude. Like other statutory contexts in which the agency
must classify convictions for immigration purposes, the
categorical approach applies to this inquiry. See Silva-Trevino,
26 I. & N. at 830; see also Garcia-Martinez v. Barr, 921 F.3d 674,
679 (7th Cir. 2019) (“Both Chevron deference and the sound-
ness of the Board’s reasoning in Silva-Trevino … thus lead us
to adopt that framework for characterizing crimes of moral
turpitude in immigration cases.”).
Applying that framework, we examine whether the statu-
tory definition of the offense fits within the “generic” defini-
tion of a crime involving moral turpitude. Silva-Trevino, 26 I.
& N. at 831. The comparison focuses on “the minimum
conduct that has a realistic probability of being prosecuted
under the statute of conviction, rather than on the facts
underlying the [noncitizen’s] particular violation of that
statute.” Id. (citing Moncrieffe v. Holder, 569 U.S. 184, 190–91
(2013)); see also Garcia-Martinez, 921 F.3d at 679. If Zaragoza
can show that the state courts have applied the neglect
statute to conduct that does not come within the generic
definition, then the offense is not categorically a crime
involving moral turpitude. See Moncrieffe, 569 U.S. at 206

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10 Nos. 19-3437 & 20-1591
(explaining that the noncitizen has the burden of demon-
strating that the state law applies to more conduct than the
generic offense covers); see also Garcia-Martinez, 921 F.3d at
679.
We begin with the generic definition of a “crime involv-
ing moral turpitude,” acknowledging (as we must) that the
“moral turpitude label” is “an odd match for the categorical
approach.” Garcia-Martinez, 921 F.3d at 679. Though the
phrase is not defined in statute, we give Chevron deference to
decisions of the BIA reasonably interpreting that term. Cano-
Oyarzabal, 774 F.3d at 916. In Silva-Trevino the Board held
that a crime involving moral turpitude has “two essential
elements: reprehensible conduct and a culpable mental
state.” 26 I. & N. Dec. at 834. For conduct to be “reprehensi-
ble,” it must be “inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties
owed between persons or to society in general.” Id. at 833
(quotation marks omitted). A culpable mental state means
“some degree of scienter, either specific intent, deliberate-
ness, willfulness, or recklessness.” Matter of Ortega-Lopez,
27 I. & N. Dec. 382, 385 (B.I.A. 2018) (quoting Matter of
Louissaint, 24 I. & N. Dec. 754, 757 (B.I.A. 2009)).
We compare that definition with the Indiana neglect of-
fense as defined by statute and as applied by the Indiana
courts. Garcia-Martinez, 921 F.3d at 680. The relevant part of
Indiana’s neglect statute provides: “A person having the care
of a dependent … who knowingly or intentionally … aban-
dons or cruelly confines the dependent … commits neglect
of a dependent.” § 35-46-1-4(a)(2). Indiana courts have
defined “cruelly confines” as “confinement which is likely to
result in a harm such as disfigurement, mental distress,

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Nos. 19-3437 & 20-1591 11
extreme pain or hurt, or gross degradation, and yet does not
necessarily endanger the dependent’s life or health.”
Hartbarger v. State, 555 N.E.2d 485, 487 (Ind. Ct. App. 1990);
Demontigney v. State, 593 N.E.2d 1270, 1272 (Ind. Ct. App.
1992) (applying the Hartbarger standard).
So defined, the Indiana neglect offense categorically
matches both elements of the generic definition of a “crime
involving moral turpitude.” First, and more straightforward-
ly, the offense requires a sufficiently culpable mental state.
The Indiana statute requires intentional or knowing conduct,
and the generic crime involving moral turpitude can be
established by “specific intent, deliberateness, willfulness, or
recklessness.” Ortega-Lopez, 27 I. & N. Dec. at 385.
Second, the neglect offense requires “reprehensible con-
duct.” Abandoning or cruelly confining a dependent, as the
Indiana courts interpret this offense, qualifies as “inherently
base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society
in general.” Silva-Trevino, 26 I. & N. Dec. at 833 (quotation
marks omitted).
Zaragoza emphasizes that the neglect offense does not
require proof of conduct that endangers the dependent’s life
or health, see Hartbarger, 555 N.E.2d at 487, which she be-
lieves makes the Indiana offense broader than the generic
definition of a crime involving moral turpitude. We disa-
gree. Under the Hartbarger standard, the offender’s conduct
must be “likely to result in a harm such as disfigurement,
mental distress, extreme pain or hurt, or gross degradation.”
Id. A person who exposes a dependent child to that degree
of risk by abandoning or cruelly confining him has engaged
in reprehensible conduct.

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12 Nos. 19-3437 & 20-1591
Zaragoza further contends that merely causing a child
“mental distress” is not an act of moral turpitude. But the
reference to “mental distress” here must be read in context.
Hartbarger mentions mental distress in a list of risks that
includes “disfigurement,” “extreme pain or hurt,” and
“gross degradation.” Id. These are all very serious harms,
which implies that the inclusion of “mental distress” is
understood to encompass only the risk of severe emotional
trauma. See also State v. Downey, 476 N.E.2d 121, 123 (Ind.
1985) (“The purpose of [§ 35-46-1-4(a)(1)] … is to authorize
the intervention of the police power to prevent harmful
consequences and injury to dependents.”).
Additionally, as the BIA correctly recognized, Zaragoza
has failed to demonstrate that there is a “realistic probabil-
ity” that the neglect statute will be applied to actions causing
only minor mental distress, rather than conduct that is
“inherently base, vile, or depraved.” Silva-Trevino, 26 I. & N.
Dec. at 831, 833 (quotation marks omitted). She points to her
own conviction, which she claims did not involve conduct
that is inherently base, vile, or depraved. We disagree.
Zaragoza barricaded her six-year-old son in a closet using
large items of furniture and leaving him nothing but water, a
hot-dog bun with ketchup, and a bowl to urinate in, and she
then left her house for six hours. This is undoubtedly “con-
trary to the accepted rules of morality and the duties owed
between persons.” Id. at 833 (quotation marks omitted).3
3 To be clear, we examine the facts of the underlying conviction for the
limited purpose of rejecting Zaragoza’s argument that the Indiana
neglect offense is categorically overbroad.

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Nos. 19-3437 & 20-1591 13
Zaragoza also points to the specific conduct at issue in
Hartbarger and in Scruggs v. State, 883 N.E.2d 189, 190 (Ind.
Ct. App. 2008). The facts of those cases, she argues, establish
that the Indiana neglect statute sweeps more broadly that
the generic definition of a crime involving moral turpitude.
Notably, however, in both cases the defendants’ convictions
were reversed based on insufficient evidence. Hartbarger,
555 N.E.2d at 487; Scruggs, 883 N.E.2d at 191. No matter,
Zaragoza says, because the categorical approach examines
“the minimum conduct that has a realistic probability of
being prosecuted under the statute of conviction.” Silva-
Trevino, 26 I. & N. Dec. at 831 (emphasis added). Because the
defendants in Hartbarger and Scruggs were prosecuted for
neglect of a dependent, she insists that the specific conduct
at issue in both cases is relevant to the “realistic probability”
inquiry even though it was insufficient to support their
convictions.
The better reading of Silva-Trevino is that the realistic-
probability principle considers the minimum conduct that
realistically could be successfully prosecuted under the statute
in question. Silva-Trevino relied on the Supreme Court’s
decision in Moncrieffe, which explained that the categorical
approach examines “the minimum conduct criminalized by
the state statute” and requires a showing of “a realistic
probability … that the State would apply its statute” to the
specified conduct. 569 U.S. at 191 (emphases added) (quota-
tion marks omitted); see also Matter of Chairez-Castrejon, 26 I.
& N. Dec. 349, 356 (B.I.A. 2014) (applying the Moncrieffe rule
only to successful prosecutions). In other words, the Su-
preme Court’s realistic-probability test, which Silva-Trevino
incorporates, considers how state law is applied by state
courts, not prosecutors. Gonzales v. Duenas-Alvarez, 549 U.S.

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14 Nos. 19-3437 & 20-1591
183, 193 (2007) (explaining that to show a realistic probabil-
ity, an offender “must at least point to his own case or other
cases in which the state courts in fact did apply the statute in
the special (nongeneric) manner for which he argues”).
This understanding of Moncrieffe and Silva-Trevino com-
ports with well-established background norms. Prosecutors
are not expositors of law—courts are, which is why we defer
to state courts in understanding the content of state law. Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Because the state
appellate court held that the specific conduct in Hartbarger
and Scruggs did not violate the neglect statute, those cases do
not help Zaragoza here.
Zaragoza also likens the Indiana neglect statute to other
state statutes that have been held not to constitute crimes
involving moral turpitude. Her comparators, however, are
inapt. For example, she points to a Fifth Circuit case holding
that a Texas child-abandonment statute is not a crime in-
volving moral turpitude. Rodriguez-Castro v. Gonzales,
427 F.3d 316, 324 (5th Cir. 2005). But the Texas statute penal-
ized mere negligence, which is not a sufficient mental state
of culpability to qualify as a crime involving moral turpi-
tude. Id. at 322–23. As we’ve explained, the Indiana neglect
statute requires intentional or knowing wrongdoing, which
squarely falls within the generic definition of a crime involv-
ing moral turpitude.
In another of Zaragoza’s examples, the BIA held that
simple battery under California law is not a crime involving
moral turpitude because it requires no more than an inten-
tional “touching” of another without consent. In re Sanudo,
23 I. & N. Dec. 968, 972 (B.I.A. 2006). Indiana’s neglect
statute, by contrast, requires a likelihood of “disfigurement,

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Nos. 19-3437 & 20-1591 15
mental distress, extreme pain or hurt, or gross degradation.”
Hartbarger, 555 N.E.2d at 487. The statute thus covers a
narrower and more serious swath of conduct than the
California battery statute.4
In sum, as interpreted and applied by the state courts, the
Indiana neglect statute requires proof that the defendant
intentionally or knowingly abandoned or cruelly confined a
dependent in such a way that will likely result in “disfig-
urement, mental distress, extreme pain or hurt, or gross
degradation.” Id. We agree with the BIA that this offense is
categorically a crime involving moral turpitude. Accord
Hernandez-Perez v. Holder, 569 F.3d 345, 348 (8th Cir. 2009)
(concluding that a similar child-endangerment statute under
Iowa law is a crime involving moral turpitude).
B. Petty-Offense Exception
Although the Indiana neglect conviction qualifies as a
crime involving moral turpitude, the inadmissibility bar is
lifted for first-time offenders like Zaragoza if the crime in
question was punishable by one year or less and the sen-
tence did not exceed six months. More specifically, Zaragoza
4 Zaragoza also criticizes the BIA and the immigration judge for relying
on Matter of Leal, 26 I. & N. Dec. 20 (B.I.A. 2012), which held that an
Arizona endangerment statute qualifies as a crime involving moral
turpitude. She correctly points out that the Arizona and Indiana crimes
are different in two ways: the Arizona offense requires a higher risk of
serious harm, while the Indiana offense requires a more culpable mental
state. The immigration judge simply balanced the difference. We share
Zaragoza’s skepticism of this approach. Nonetheless, as explained above,
our independent application of the categorical approach confirms that
the Indiana neglect offense is categorically a crime involving moral
turpitude.

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16 Nos. 19-3437 & 20-1591
is not inadmissible based on her neglect conviction if (1) “the
maximum penalty possible for the crime … did not exceed
imprisonment for one year” and (2) she “was not sentenced
to a term of imprisonment in excess of 6 months (regardless
of the extent to which the sentence was ultimately execut-
ed).” § 1182(a)(2)(A)(ii)(II).
It’s undisputed that Zaragoza satisfies the first require-
ment. The neglect offense normally carries a maximum
penalty of up to three years in prison, but she pleaded guilty
pursuant to a statute that permitted the court to enter judg-
ment for a Class A misdemeanor, which carries a maximum
penalty of one year of imprisonment. I ND. CODE § 35-50-3-2.
And indeed, the judgment reflects that she was convicted of
the misdemeanor offense.5
The dispute here centers on the second requirement. The
exception applies only if the offender was sentenced to a
term of six months or less. Based on Zaragoza’s original
sentence, she is clearly ineligible. She was sentenced to one
year of imprisonment suspended to time served plus
30 days. The suspension has no effect on the analysis. As
defined in the Immigration and Nationality Act (“INA” or
“the Act”), “[a]ny reference to a term of imprisonment or a
sentence … is deemed to include the period of incarceration
or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprison-
ment or sentence in whole or in part.” 8 U.S.C.
5 In its initial decision, the BIA incorrectly stated that because the offense
is normally a Class D felony, which carries a three-year maximum, the
petty-offense exception is inapplicable. The Board abandoned this
reasoning in its decision denying Zaragoza’s motion to reconsider.

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Nos. 19-3437 & 20-1591 17
§ 1101(a)(48)(B) (emphases added). The petty-offense excep-
tion itself contains similar “regardless” language: the excep-
tion applies only if the offender’s sentence “was not … in
excess of 6 months (regardless of the extent to which the
sentence was ultimately executed).” Id. § 1182(a)(2)(A)(ii)(II)
(emphasis added).
But what about the sentence-modification order? Recall
that in February 2019 while her appeal was pending before
the BIA, Zaragoza sought and obtained an order from a state
judge reducing her one-year sentence to 179 days. At the
time BIA precedent recognized state-court sentence-
modification orders as effective for immigration purposes.
See Matter of Cota-Vargas, 23 I. & N. Dec. 849, 852 (B.I.A. 2005)
(holding that an immigration court must give full faith and
credit to a state-court decision modifying a sentence). Ac-
cordingly, Zaragoza asked the BIA to evaluate her eligibility
for the petty-offense exception based on her sentence as
modified.
The BIA did not rule on her appeal until nine months af-
ter she had obtained the sentence-modification order. By
then the Attorney General had issued his decision in Thomas,
overruling Cota-Vargas and holding that state-court sentence-
modification orders are effective for immigration purposes
only if based on a procedural or substantive defect in the
underlying criminal proceeding. Thomas, 27 I. & N. Dec. at
674. Zaragoza’s sentence modification was not based on
such a defect. Applying Thomas, the Board declined to give it
effect for purposes of evaluating her eligibility for the petty-
offense exception. Because Zaragoza’s original sentence
exceeded six months, the Board found her ineligible for the
exception.

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18 Nos. 19-3437 & 20-1591
Zaragoza attacks this ruling on several grounds. She first
argues that the Attorney General’s decision in Thomas is not
entitled to deference and is wrong as a matter of law. Alter-
natively, she argues that even if Thomas correctly interpreted
the relevant statutes, the decision cannot be applied to her
because she reasonably relied on the BIA’s preexisting
rules—namely, Cota-Vargas. Applying Thomas to her, she
argues, would be a manifestly unjust retroactive application
of a new rule.
1. Thomas Is Entitled to Deference
The pre-Thomas legal landscape was a patchwork of in-
consistent rules regarding the immigration consequences of
state-court orders altering a criminal sentence. If a state court
vacated a conviction for reasons other than a defect in the
criminal proceeding, then the immigration consequences
remained fixed to the original conviction and sentence.
Matter of Pickering, 23 I. & N. Dec. 621, 624 (B.I.A. 2003). But
if a state court modified a sentence, then the immigration
consequences were fixed to the new order. Cota-Vargas, 23 I.
& N. Dec. at 852; In re Song, 23 I. & N. Dec. 173, 174 (B.I.A.
2001). If a state court clarified a sentence, then the immigra-
tion judge was to consider several characteristics of the state-
court order before deciding whether immigration conse-
quences should attach to the original sentence or the clarifi-
cation order. Matter of Estrada, 26 I. & N. Dec. 749, 755–56
(B.I.A. 2016).
These inconsistencies, coupled with the perception that
state courts were using sentence modifications to circumvent
federal immigration law, led the Attorney General to step in.
In May 2019 he directed the BIA to refer two pending cases
to him for a clarifying opinion. Thomas, 27 I. & N. Dec. at 674.

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Nos. 19-3437 & 20-1591 19
We pause here for a bit of background on the two cases
the Attorney General directed the BIA to send. Michael
Vernon Thomas, a citizen of Trinidad and Tobago, and
Joseph Lloyd Thompson, a citizen of Jamaica, were convict-
ed in unrelated state-court proceedings of the Georgia crime
of “family violence battery” and were sentenced to
12 months of imprisonment. Id. at 678. Years later, long after
they had completed their sentences, DHS placed them in
removal proceedings as “aggravated felons” because each
man “had been convicted of a ‘crime of violence’ for which
the ‘term of imprisonment [was] at least one year.’” Id.
(quoting 8 U.S.C. § 1101(a)(43)(F)).
While their removal proceedings were pending, Thomas
and Thompson returned to state court and obtained orders
reducing their sentences to slightly under 12 months. Id. at
678–79. The modification orders were not based on any
defect in the underlying criminal proceedings, but Thomas
and Thompson argued in their removal proceedings that
because their sentences had been reduced to less than one
year, they were no longer removable as aggravated felons.
After directing the BIA to refer the cases, the Attorney
General invited the parties and any interested amici to
submit briefs regarding the effect of state-court sentence-
modification orders for immigration purposes. Id. at 674.
On October 25, 2019, the Attorney General issued his de-
cision overruling Cota-Vargas, Song, and Estrada and holding
that state-court sentence-modification orders “have no effect
for immigration purposes if based on reasons unrelated to
the merits of the underlying criminal proceeding, such as
rehabilitation or the avoidance of immigration consequenc-
es.” Id.

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20 Nos. 19-3437 & 20-1591
The decision largely flowed from the definitions of “con-
viction” and “term of imprisonment” in the INA:
(A) The term “conviction” means, with respect
to an alien, a formal judgment of guilt of the al-
ien entered by a court or, if adjudication has
been withheld, where—
(i) a judge or jury has found the alien guilty
or the alien has entered a plea of guilty or
nolo contendere or has admitted sufficient
facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of
punishment, penalty, or restraint on the al-
ien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a
sentence with respect to an offense is deemed to
include the period of incarceration or confine-
ment ordered by a court of law regardless of
any suspension of the imposition or execution
of that imprisonment or sentence in whole or
in part.
8 U.S.C. § 1101(a)(48) (emphases added).
Anchoring his analysis in the text of these definitions, the
Attorney General began with an uncontroversial observa-
tion: “An alien plainly has been convicted under the INA
when a court has entered ‘a formal judgment of guilt,’ and
he has received a sentence when the court orders a ‘period of
incarceration or confinement,’ no matter whether the sen-
tence [has been] executed.” Thomas, 27 I. & N. Dec. at 680–81.
In other words, by virtue of the “regardless” clause in the
definition, the terms “conviction” and “term of imprison-

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Nos. 19-3437 & 20-1591 21
ment” refer to the original conviction and sentence notwith-
standing any suspension of the sentence. The “regardless”
clause, the Attorney General reasoned, also implied that
“other post-sentencing events—such as modifications or
clarifications—should not be relevant under the immigration
laws.” Id. at 682.
The Attorney General then looked to the statutory histo-
ry to confirm this implication, noting that § 1101(a)(48) was
enacted as part of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 in response to deci-
sions of the BIA holding that certain suspended sentences
were excluded from the definition of “conviction” for immi-
gration purposes. Id. at 681. The new statutory definitions of
“conviction” and “term of imprisonment” in § 1101(a)(48)
displaced the BIA’s previous rule about suspended sentenc-
es. In this way, “Congress made clear that immigration
consequences should flow from the original determination
of guilt.” Id. at 682. By removing the BIA’s special treatment
of suspended sentences, “Congress ensured uniformity in
the immigration laws by avoiding the need for immigration
judges to examine the post-conviction procedures of each
State.” Id.
Based on this review of the statutory text and history, the
Attorney General concluded that “the phrase ‘term of im-
prisonment or a sentence’ in paragraph (B) is best read to
concern an alien’s original criminal sentence, without regard
to post-sentencing alterations that, like a suspension, merely
alleviate the impact of that sentence.” Id. But he carved out
an exception based on the reasoning in Pickering: “If the
original sentence was altered because of a legal defect, then
the sentence was not legally effective, and there is no valid

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22 Nos. 19-3437 & 20-1591
sentence to which immigration consequences can attach.” Id.
at 682–83.
The Attorney General thus extended the Pickering vacatur
framework to all sentence alterations, including vacaturs,
modifications, and clarifications. Id. at 683–85. He according-
ly held that “state-court orders that modify, clarify, or
otherwise alter a criminal alien’s sentence … will be given
effect for immigration purposes only if based on a procedural
or substantive defect in the underlying criminal proceed-
ing.” Id. at 690 (emphasis added).
Decisions of the Attorney General interpreting the feder-
al immigration statutes are entitled to Chevron deference.
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); see also
8 U.S.C. § 1103(a)(1) (stating that the “determination and
ruling by the Attorney General with respect to all questions
of law shall be controlling”). Applying the two-step Chevron
framework, we first ask “whether ‘the statute is silent or
ambiguous with respect to the specific issue’ before [us]; if
so, ‘the question for the court [is] whether the agency’s
answer is based on a permissible construction of the stat-
ute.’” Aguirre-Aguirre, 526 U.S. at 424 (quoting Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843
(1984)).
Neither the petty-offense exception nor the definitions in
§ 1101(a)(48) unambiguously resolve whether Zaragoza’s
original or modified sentence is the correct reference point
for determining her eligibility for the exception. The answer
instead turns on Chevron Step 2.6 Based on our own review,
6 An amicus relies heavily on BIA caselaw predating the statutory
definition of “term of imprisonment.” 8 U.S.C. § 1101(a)(48)(B). Accord-

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Nos. 19-3437 & 20-1591 23
we hold that the Attorney General’s decision in Thomas is a
permissible interpretation of the operative statutes—indeed,
it is the most reasonable interpretation.
We begin with the language of the petty-offense excep-
tion. Zaragoza qualifies for relief from inadmissibility if she
“was not sentenced to a term of imprisonment in excess of
6 months (regardless of the extent to which the sentence was
ultimately executed).” § 1182(a)(2)(A)(ii)(II) (emphasis
added). The use of the past tense suggests that the statute
refers to the original sentence as a matter of historical fact;
the “regardless” qualifier excludes later alterations of it.
Next, as Thomas explains, the definition of the phrase
“term of imprisonment” in § 1101(a)(48)—and especially the
language directing us to ignore any sentence suspension—
implies that in general, subsequent alterations are to be
disregarded. The inference here may not be strong enough to
conclusively resolve the effect of sentence modifications at
ing to the amicus, those decisions establish that a “new, reduced sentence
stands as the only valid and lawful sentence imposed” for immigration
purposes, Matter of Martin, 18 I. & N. Dec. 226, 227 (B.I.A. 1982), and that
Congress intended to preserve this rule in enacting § 1101(a)(48). We are
not persuaded. As the amicus recognizes, the definition of “term of
imprisonment” displaced BIA precedent regarding the immigration
effect of suspended sentences. Any inferences about Congress’s view on
modified sentences are thin at best—certainly not convincing enough to
resolve this case at Chevron Step 1. Indeed, to the extent that we can
deduce anything from the enactment of § 1101(a)(48), it’s that Congress
wanted “immigration consequences [to] flow from the original determi-
nation of guilt,” not a modified determination. Matter of Thomas &
Thompson, 27 I. & N. Dec. 674, 682 (Att’y Gen. 2019); see also Saleh v.
Gonzales, 495 F.3d 17, 24 (2d Cir. 2007) (recognizing that § 1101(a)(48)(A)
“focuses on the original attachment of guilt”).

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24 Nos. 19-3437 & 20-1591
Chevron Step 1, but it confirms that the Attorney General’s
interpretation of the statute is a reasonable one at Chevron
Step 2.
Were there any doubt about this analysis, circuit prece-
dent confirms our conclusion. After the BIA held in Pickering
that immigration consequences remain fixed to a conviction
even after it is vacated (with an important exception for
vacaturs based on a legal defect), we concluded that the
agency’s decision was entitled to Chevron deference. Ali v.
Ashcroft, 395 F.3d 722, 728–29 (7th Cir. 2005). Because the
definition of “conviction” in § 1101(a)(48)(A) is silent on
whether immigration consequences remain attached to a
vacated conviction, we did not resolve the case at Chevron
Step 1. Id. at 728. Rather, at Chevron Step 2, we held that
Pickering’s interpretation was reasonable and therefore
entitled to deference. Id. at 729.
The same result follows here. As we’ve explained, in
Thomas the Attorney General extended the Pickering vacatur
rule to all sentence alterations—including, as relevant here,
sentence modifications. True, resolving the immigration
effect of vacaturs and sentence modifications turns on
separate statutory definitions—for the former, it’s the defini-
tion of “conviction” in § 1101(a)(48)(A); for the latter, it’s the
definition of the phrase “term of imprisonment or a sen-
tence” in § 1101(a)(48)(B). But the definitions are related and
should be read harmoniously. And to the extent that it
makes sense to treat vacated convictions differently from
sentence modifications, it is far more reasonable to give
continued effect to the original sentence after it has been
modified than to give continued effect to a conviction after it
has been vacated. Cf. Ali, 395 F.3d at 729 n.4 (“[I]t would not

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Nos. 19-3437 & 20-1591 25
make much sense for Ali, whose conviction was modified to
avoid deportation, to fare better than the applicant in
Pickering[,] whose conviction was outright quashed for the
same purpose.”). And yet we deferred to the BIA’s rule in
Pickering.
Zaragoza responds that deferring to Thomas is incon-
sistent with our obligation to give full faith and credit to a
state court’s modification of a sentence. See 28 U.S.C. § 1738
(requiring that “every court within the United States” give
full faith and credit to authenticated “Acts, records and
judicial proceedings”). The Attorney General addressed and
rejected that argument, reasoning that interpreting and
applying the defined terms “conviction” and “term of
imprisonment” in federal immigration law does not call into
question the validity of the state court’s order. Thomas, 27 I.
& N. Dec. at 686 (“The adjudicator is not reevaluating or
otherwise questioning the validity of the state-court judg-
ment. The adjudicator accordingly does not violate the Full
Faith and Credit Act.”). We agree. The same reasoning
defeats Zaragoza’s related argument that Thomas violates
basic federalism principles. Because the federal immigration
statutes assign independent effect to state convictions, they
do not risk overrunning the domain of state law.
In sum, the Attorney General’s decision in Thomas is enti-
tled to deference as a permissible construction of the terms
“conviction” and “term of imprisonment or a sentence” as
defined in § 1101(a)(48). Under the Thomas rule, the state
court’s sentence-modification order is not effective for
immigration purposes because it was not based on a proce-
dural or substantive defect in Zaragoza’s criminal case.

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26 Nos. 19-3437 & 20-1591
2. Retroactivity
Zaragoza argued in her reconsideration motion that ap-
plying Thomas to her is an impermissibly retroactive applica-
tion of a new rule. The Board rejected that argument. We
review retroactivity questions independently, owing no
deference to the agency’s ruling. Velásquez-García v. Holder,
760 F.3d 571, 578–79 (7th Cir. 2014)
The law generally disfavors the retroactive application of
new legal rules. See id. at 579. “Elementary considerations of
fairness dictate that individuals should have an opportunity
to know what the law is and to conform their conduct
accordingly; settled expectations should not be lightly
disrupted.” Landgraf v. USI Film Prods., 511 U.S. 244, 265
(1994). But deciding when a new rule operates retroactively
“is not always a simple or mechanical task.” Id. at 268. A new
rule is not necessarily “retroactive” in effect simply because
it is applied in a case arising from conduct predating its
adoption. Id. at 269. Rather, a determination that a particular
rule operates retroactively “comes at the end of a process of
judgment concerning the nature and extent of the change in
the law and the degree of connection between the operation
of the new rule and a relevant past event.” Id. at 270. The
inquiry, in other words, “demands a commonsense, func-
tional judgment” and is “informed and guided by ‘familiar
considerations of fair notice, reasonable reliance, and settled
expectations.’” Martin v. Hadix, 527 U.S. 343, 357–58 (1999)
(quoting Landgraf, 511 U.S. at 270)).
As a general matter, “[a] rule is considered to be retroac-
tive” in effect “when it ‘attaches new legal consequences to
events completed before its enactment.’” Velásquez-García,
760 F.3d at 579 (quoting Landgraf, 511 U.S. at 270). A rule

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Nos. 19-3437 & 20-1591 27
attaches “new legal consequences” to completed events
when it “takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new
duty, or attaches a new disability, in respect to transactions
or considerations already past.” I.N.S. v. St. Cyr, 533 U.S. 289,
321 (2001) (quoting Landgraf, 511 U.S. at 269).
A vexing problem in retroactivity cases is to identify the
appropriate reference point for analysis—the event or mo-
ment in time by which to judge whether an intervening legal
development imposes new consequences or disabilities. See
Vartelas v. Holder, 566 U.S. 257, 269–70 (2012); id. at 277
(Scalia, J., dissenting). Zaragoza and the government offer
competing possibilities.7 The government contends that the
correct point of reference is March 31, 2014, when Zaragoza
was convicted and sentenced for the neglect offense. Because
she had no fixed entitlement to the petty-offense exception at
that point in time, the government argues that Thomas does
not have retroactive effect as applied to her. Zaragoza coun-
ters with two possible reference points—either March 31,
7 After oral argument we ordered supplemental briefing on the retroac-
tivity question and specifically asked the parties to brief the relevant
point of reference for retroactivity analysis in this case and the applica-
tion of the retroactivity factors discussed in Velásquez-García v. Holder,
760 F.3d 571 (7th Cir. 2014). Zaragoza asserted that the government had
waived any argument about retroactivity by failing to respond to her
discussion of Velásquez-García in her opening brief. We disagree. Alt-
hough the government did not specifically address the Velásquez-García
factors in its original brief, it responded in a more general way to
Zaragoza’s retroactivity argument, which is enough to avoid waiver.
Sec'y, U.S. Dep't of Lab. v. Preston, 873 F.3d 877, 883 n.5 (11th Cir. 2017)
(“Parties can most assuredly waive positions and issues on appeal, but
not individual arguments—let alone authorities.”).

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28 Nos. 19-3437 & 20-1591
2014, when she was convicted and sentenced, or
February 13, 2019, when the state court entered its sentence-
modification order. As Zaragoza sees it, Thomas is impermis-
sibly retroactive by reference to either event.
We conclude that the proper reference point for the ret-
roactivity inquiry is the February 2019 sentence-modification
order. As we’ve noted, retroactivity analysis is concerned
with the degree of connection between the new rule and the
relevant past event. More specifically, the analysis asks
whether a new rule “impairs vested rights acquired under
existing laws.” St. Cyr, 533 U.S. at 321 (quotation marks
omitted). When the state court entered the sentence-
modification order, Zaragoza acquired a legal entitlement to
the petty-offense exception under existing immigration
law—namely, the BIA’s decision in Cota-Vargas. As of that
event, she had a complete defense to removal. The Attorney
General’s decision in Thomas overruled Cota-Vargas, eliminat-
ing the defense. So the “transaction[] or consideration[]” to
which Thomas attached legal consequences was the sentence-
modification order. Id. The rule of Thomas therefore has
retroactive effect as applied in Zaragoza’s removal proceed-
ings.
The government resists this conclusion, relying on the
Supreme Court’s decisions in Vartelas and St. Cyr, both of
which used the immigrant’s underlying conviction to evalu-
ate the retroactive effect of later legal developments. But
neither of those cases involved sentence modifications, so
the Court had no occasion to consider the problem presented
here.
Instead, this case is closer to our decision in Jeudy v.
Holder, 768 F.3d 595 (7th Cir. 2014). There, an immigrant

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Nos. 19-3437 & 20-1591 29
committed a removable offense after living in the United
States for six years. He continued to live in the United States,
and just a year later, he became eligible to request cancella-
tion of removal since he had continuously lived in the
country for seven years. Congress later enacted a “stop-time
rule,” which stops the seven-year continuous-residency
clock when an immigrant commits a removable offense.
8 U.S.C. § 1229b(d)(1). Because Jeudy had committed the
removable offense before the seven years were up, the BIA
concluded that he was ineligible to apply for cancellation of
removal. Jeudy, 768 F.3d at 596–97.
We disagreed, instead holding that the stop-time rule
was impermissibly retroactive as applied in Jeudy’s case
because he “was actually eligible for discretionary relief
before [the new stop-time rule] took effect.” Id. at 603. In
other words, in Jeudy there wasn’t a retroactivity problem
simply because his conviction predated the new law; rather,
a postconviction event made Jeudy unquestionably eligible
for relief from removal, only to then be foreclosed by a later
legal development.
The same is true here. A postconviction event—
Zaragoza’s sentence modification—gave her a right to relief
from removal, only to be taken away by Thomas. Because the
state court’s sentence-modification order predated Thomas,
the decision is retroactive as applied to her.
Our next question is whether retroactive application is
impermissible in Zaragoza’s case. As we explained in
Velásquez-García, when an agency interprets a statute “as an
incident of its adjudicatory function,” it may permissibly
apply the new interpretation in the case in which it is an-
nounced. 760 F.3d at 581 (quotation marks omitted). But “a

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30 Nos. 19-3437 & 20-1591
retrospective application can be properly withheld” in other
cases “when to apply the new rule to past conduct or prior
events would work a manifest injustice.” Id. (quotation
marks omitted). The “manifest injustice” inquiry turns on
several factors:
(1) Whether the particular case is one of first
impression, (2) whether the new rule repre-
sents an abrupt departure from well-
established practice or merely attempts to fill a
void in an unsettled area of law, (3) the extent
to which the party against whom the new rule
is applied relied on the former rule, (4) the de-
gree of burden which a retroactive order im-
poses on a party, and (5) the statutory interest
in applying a new rule despite the reliance of a
party on the old standard.
Id. (quoting NLRB v. Wayne Transp., 776 F.2d 745, 751 n.8 (7th
Cir. 1985)). “Like most such unweighted multi-factor lists,
this one serves best as a heuristic; no one consideration
trumps the others.” Id.
The first factor—whether the case is one of “first impres-
sion”—requires some clarification. As we’ve noted, when an
agency announces a new rule in the exercise of its adjudica-
tive function, it may apply the rule in the proceeding before
it; that is the case of “first impression.” Id. This case, howev-
er, is one of “second impression”: the BIA applied Thomas
retroactively to Zaragoza—a stranger to the case in which
the new rule was announced—even though she had already
acquired a right to relief from removal by operation of the
prior rule of Cota-Vargas. The government concedes, and we
agree, that this factor tips against retroactive application.

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Nos. 19-3437 & 20-1591 31
The second factor is whether the new rule constitutes an
abrupt departure from well-established practice or merely
fills a void. Thomas overruled Cota-Vargas and therefore
departed from well-established practice, so this factor too
disfavors retroactive application.
The third factor is the extent of Zaragoza’s reliance inter-
ests. Though no one factor in the Velásquez-García list is
decisive, this one has a significant role to play. See Vartelas,
566 U.S. at 274 (“[T]he likelihood of reliance on prior law
strengthens the case for reading a newly enacted law pro-
spectively.”); Landgraf, 511 U.S. at 270 (retroactivity doctrine
is guided by “familiar considerations of fair notice, reasona-
ble reliance, and settled expectations”). “Importantly, the
critical question is not whether a party actually relied on the
old law, but whether such reliance would have been reason-
able.” Velásquez-García, 760 F.3d at 582; see also Jeudy, 768 F.3d
at 604.
Reliance on the old law was objectively reasonable in the
circumstances here. Under the rule of Cota-Vargas, Zaragoza
had clear right to relief under the petty-offense exception
when the state court modified her sentence. That is, Cota-
Vargas gave her a complete defense to removal once she
obtained the order from the state court reducing her sen-
tence to six months or less. When she did so, she reasonably
relied on then-existing law, which lifted the inadmissibility
bar and eliminated the basis for her removal.
The reliance interests here are arguably stronger than
those at issue in Velásquez-García. There, the immigrant took
preliminary steps toward acquiring permanent-resident
status but did not file an application within one year of the
date when his visa number became available, as required by

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32 Nos. 19-3437 & 20-1591
statute. Velásquez-García, 760 F.3d at 574. Under three prior
non-precedential BIA decisions, the agency required an
applicant to show only that he “took ‘substantial steps’ to
acquire permanent status in order to qualify for the Act’s
protection.” Id. at 576. However, in its intervening decision
in Matter of Vazquez, 25 I. & N. Dec. 817 (B.I.A. 2012), the BIA
narrowed its interpretation of the operative language in the
statutory deadline, requiring “an immigrant [to] make a
fully compliant application for permanent residence or one
with only technical defects within one year, unless excep-
tional circumstances prevented the immigrant from filing
such an application.” Velásquez-García, 760 F.3d 576. In other
words, “substantial steps” were no longer sufficient; under
the new interpretation, a completed, compliant, and timely
application was needed. The BIA’s new interpretation
“departed sharply” from its earlier non-precedential deci-
sions. Id. We held that Velásquez-García’s reliance on the old
law was objectively reasonable because “[i]n light of the
state of the law at the critical time, a reasonable person
reasonably could have assumed that the Act did not require
him or her to file an application within one year.” Id. at 583.
If it was reasonable for Velásquez-García to rely on non-
precedential BIA decisions generously interpreting a statuto-
ry deadline to apply for immigration benefits, then it was
reasonable for Zaragoza to rely on the BIA’s precedential
decision in Cota-Vargas, which gave her a complete defense
to removability based on her sentence modification.
The fourth factor is the degree of burden that the retroac-
tive rule imposes. “Courts have long recognized the obvious
hardship imposed by removal.” Id. at 584. This factor clearly
favors Zaragoza. The final factor is the statutory interest in

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Nos. 19-3437 & 20-1591 33
applying the new rule despite reliance on the old standard.
“Often, this will point in favor of the government because
non-retroactivity impairs the uniformity of a statutory
scheme, and the importance of uniformity in immigration
law is well established.” Id. (quotation marks and alteration
omitted). Applying Thomas to Zaragoza would promote
uniformity because the rule would apply to all sentence
modifications occurring before that decision was issued.
In sum, all but one of the Velásquez-García factors weigh
against retroactive application of Thomas in Zaragoza’s case.
Accordingly, we conclude that applying the new rule to her
would work a manifest injustice. We GRANT the petitions for
review and R EMAND to the BIA for further proceedings
consistent with this opinion.

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