A strong argument exists that the new rule of Yanez-Garcia cannot be applied to a conviction that predated that decision, since the defendant entered the plea in reliance on the state of the law at the time of the plea. The IJ erred in applying the rule announced in Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002) to this case, in sustaining the aggravated felony charge, and in finding the respondent ineligible for relief under INA Section 240A(a). Unlike Matter of Yanez, where the Board found retroactivity concerns inapplicable and applied a new interpretation to the case at bar, applying the Yanez rule here would be arbitrary and capricious, upsetting settled expectations in a manner that violates the respondent's right to due process.      Application of the Yanez rule to the respondent is arbitrary and capricious in that, pursuant to the analysis in INS v. St. Cyr, 121 S. Ct. 2271 (2001) the respondent is presumed to have detrimentally relied on his apparent eligibility for a waiver of deportability when he entered his plea. Under Matter of L-G-, 21 Int. Dec. 89 (1994), the case governing this issue at the time of the plea, the respondent's 1997 plea to simple possession of cocaine in violation of Cal. P.C. Section 11350(a) was not an aggravated felony and did not bar him from Section 240A(a) relief. The Supreme Court has held that a change in interpretation made through adjudication may be inappropriate where "some new liability" results from "past actions which were taken in good-faith reliance on Board pronouncements." NLRB v. Bell Aerospace Co., 416 U.S. 267, 295 (1974). Under 9th Circuit caselaw, the Board should follow a 5-factor test before applying a new rule (here, that announced in Yanez) to past conduct. See Montgomery Ward & Co. v. Federal Trade Commission, 691 F. 2d 1322, 1333 (9th Cir. 1982), adopting and applying the test set forth in Retail, Wholesale & Dep't Store Union v. NLRB, 466 F. 2d 380, 390 (D.C. Cir. 1972).      The five-factor test examines (1) whether the particular case is one of first impression, (2) whether the new rule represents 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 burden that a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. The IJ here erred in failing to apply that test. Proper application of the test to this case would lead to denial of the aggravated charge and to a finding of eligiblity for cancellation of removal.      Application of the five-part test regarding prospective application of new agency interpretations favors the respondent here. In Yanez, the test disfavored the respondent because he could not have reasonably relied on Matter of L-G-. Yanez at 399. L-G- held that a state felony conviction for simple possession was not an aggravated felony for immigration purposes because it would only be a misdemeanor under federal law; it did not resolve the issue of whether a second conviction for simple possession is an aggravated felony for immigration purposes. Id. Thus, the third factor of the test disfavored the respondent in Yanez but favors the respondent here. (Moreover, under St. Cyr., reliance on the availability of a waiver of deportability at the time of entry of plea is presumed where, as here, the plea maintains the noncitizen's eligibility for the waiver).      All other factors of the test favor the respondent here as well. Yanez, in 2002, announced a 180 degree change in interpretation from that set forth in Matter of L-G-. In addition, the burden of a retroactive application of the new rule on respondents such as this one, who reasonably relied on L-G-, is tremendous (For example, this respondent has been an LPR since age 12, has all his family members in the US, and is otherwise eligible for LPR cancellation). Because, under 9th Circuit law, it is arbitrary and capricious to apply the Yanez interpretation to cases governed at the time of the plea by L-G-, the Board should not apply the Yanez rule in this case and should remand the case to allow the respondent to apply for cancellation of removal. Thanks to Lynn Marcus for this analysis.