The IJ agreed with the Petitioner and dismissed the case. In a published decision, In re Cruz de Ortiz, 25 I. & N. Dec. 601 (BIA Sept. 20, 2011), the BIA sustained DHS's appeal and remanded the case to give Petitioner an opportunity to apply for any relief for which she may be eligible (and to allow the IJ to enter a new decision). On remand, the IJ pretermitted Petitioner's application for cancellation and ordered her to be removed.
See Steevenez v. Gonzales, 476 F.3d 114, 118 (2d Cir.2007) (“[W]e construe generously [alien's] pro se brief to the BIA....”). We further note that the agency has itself so construed the statute, see Matter of Cruz de Ortiz, 25 I. & N. Dec. 601, 604–05 (B.I.A.2011), and that decision would merit deference even if we were to identify any ambiguity in the statutory text. By unpublished summary order, this court has previously affirmed a district court opinion recognizing in dicta that § 1256(a) applies only to adjustment of status, not consular processing.
The Government implies that we might have jurisdiction to consider Fernandez's equal protection claim, as the BIA has stated that it lacks jurisdiction to consider "whether, on equal protection grounds, section 246(a) must be applied to aliens admitted to the United States in lawful permanent resident status." See In re Cruz De Ortiz, 25 I. & N. Dec. 601, 605 (BIA 2011). We agree that we have jurisdiction to consider an unexhausted claim when the BIA lacks jurisdiction to consider that claim.