Avelar

MEMORANDUM **

Antonio Fernando Avelar, a native and citizen of Portugal, petitions for review of an order of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration judge’s (“IJ”) pretermission of his application for discretionary relief from deportation. We have jurisdiction pursuant to 8 U.S.C. § 1252 , and we grant the petition and remand for further proceedings.

Avelar exhausted his claim that the IJ incorrectly applied the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104^132, 110 Stat. 1214 , 1277 (1996), by stating in his brief to the BIA that the IJ “erred in finding that [Avelar] was not eligible for 212(c) relief where application of the AEDPA and IIRIRA to [Avelar] would result in severe retroactive effect.” See Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir.2006) (claim is exhausted if petitioner’s arguments below “put the BIA *436 on notice [and gave it] ... an opportunity to pass on th[e] issue”) (internal quotation marks omitted).

“The applicability of a statute to a particular case is a question of law we review de novo.” United States v. Villa-Gonzalez, 208 F.3d 1160, 1163 (9th Cir.2000) (per curiam). Because Avelar’s…