OSCAR MARTINEZ RAMIREZ V. MERRICK GARLAND, No. 20-70075 (9th Cir. 2021)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 13 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT OSCAR MARTINEZ RAMIREZ, Petitioner, v. No. U.S. COURT OF APPEALS 20-70075 Agency No. A077-289-010 MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 9, 2021** Pasadena, California Before: KELLY,*** M. SMITH, and FORREST, Circuit Judges. Oscar Martinez Ramirez seeks review of the Board of Immigration Appeals’ (BIA) order denying his application for adjustment of status. We have jurisdiction * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. pursuant to 8 U.S.C. § 1252, and we affirm. Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling. In 2007, the BIA held in In re Briones, 24 I. & N. Dec. 355 (BIA 2007), that noncitizens who are inadmissible pursuant to 8 U.S.C. § 1182(a)(9)(C)(i)(I) are ineligible for adjustment of status pursuant to 8 U.S.C. § 1255(i). Martinez concedes that he is inadmissible pursuant to § 1182(a)(9)(C)(i)(I), but argues that the BIA erred by applying Briones retroactively to deny his application for adjustment of status because he relied on our decision in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), which held that noncitizens who are inadmissible pursuant to § 1182(a)(9)(C)(i)(I) are still eligible for adjustment of status. The Government, citing our unpublished memorandum disposition in Hernandez v. Sessions, 697 F. App’x 492 (9th Cir. 2017), argues that because Martinez applied for adjustment of status after the BIA decided Briones, the BIA did not apply Briones retroactively, and we therefore need not analyze retroactivity pursuant to Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982). But unpublished memorandum dispositions are not precedent, 9th Cir. R. 36-3(a), and we analyzed retroactivity in a published opinion in directly analogous circumstances in Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013). Therefore, we will analyze retroactivity here. 2 Even so, the result is the same: The BIA properly determined that Martinez is ineligible for adjustment of status pursuant to § 1255(i) and Briones. In GarfiasRodriguez v. Holder, we held that it is not reasonable for noncitizens applying for adjustment of status after Briones to rely on Acosta. 702 F.3d 504, 522 (9th Cir. 2012) (en banc). Therefore, it was not reasonable for Martinez to rely on Acosta here, and the second, third, and fifth Montgomery Ward factors weigh in favor of applying Briones retroactively, while only the fourth factor weighs against it. See id. at 521–23. Therefore, the BIA properly applied Briones to Martinez’s application for adjustment of status and properly denied the application pursuant to § 1255(i). See id. PETITION FOR REVIEW DENIED. 3
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