GILBERTO ACOSTA-OLIVARRIA V. LORETTA E. LYNCH, No. 10-70902 (9th Cir. 2015)
Annotate this CaseCourt Description: Immigration The panel granted Gilberto Acosta-Olivarria’s petition for review of the Board of Immigration Appeals’ decision denying adjustment of status pursuant to its published opinion In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which held that adjustment under 8 U.S.C. § 1255(i) was not available to an alien who was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). The panel held that petitioner reasonably relied on this circuit’s law in effect at the time he applied for adjustment, Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), under which he could apply for adjustment despite being inadmissible, because he was eligible for a visa. Petitioner applied within the 21-month period between Acosta, later overruled by this court’s decision in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), and the BIA’s opinion in Briones, which directly disagreed with Acosta. The panel noted that during the relevant period the BIA’s decision in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), which held that inadmissible noncitizens could not obtain adjustment, was in tension with Acosta, but did not directly disagree with it.
This opinion or order relates to an opinion or order originally issued on December 21, 2012.
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GILBERTO ACOSTA-OLIVARRIA, Petitioner, v. No. 10-70902 Agency No. A079-657-188 LORETTA E. LYNCH, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 8, 2015—Pasadena, California Filed August 26, 2015 Before: Carlos T. Bea and Michelle T. Friedland, Circuit Judges and Thomas O. Rice, * District Judge. Opinion by Judge Friedland Dissent by Judge Rice * The Honorable Thomas O. Rice, United States District Judge for the Eastern District of Washington, sitting by designation. 2 ACOSTA-OLIVARRIA V. LYNCH SUMMARY ** Immigration The panel granted Gilberto Acosta-Olivarria’s petition for review of the Board of Immigration Appeals’ decision denying adjustment of status pursuant to its published opinion In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which held that adjustment under 8 U.S.C. § 1255(i) was not available to an alien who was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). The panel held that petitioner reasonably relied on this circuit’s law in effect at the time he applied for adjustment, Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), under which he could apply for adjustment despite being inadmissible, because he was eligible for a visa. Petitioner applied within the 21-month period between Acosta, later overruled by this court’s decision in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), and the BIA’s opinion in Briones, which directly disagreed with Acosta. The panel noted that during the relevant period the BIA’s decision in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), which held that inadmissible noncitizens could not obtain adjustment, was in tension with Acosta, but did not directly disagree with it. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ACOSTA-OLIVARRIA V. LYNCH 3 Applying the Montgomery Ward retroactivity analysis, the panel held that the BIA’s decision in Briones should not apply retroactively to bar petitioner’s application. Weighing all factors, the panel held that petitioner’s reliance interests and the burden retroactivity would impose on him outweighed the interest in uniform application of the immigration laws. Dissenting, Judge Rice would find that the Montgomery Ward factors do not weigh in favor of departing from general retroactivity principles, and would hold that the BIA properly found petitioner inadmissible and ineligible for adjustment of status. COUNSEL Gary Finn (argued), Law Office of Gary Finn, Indio, California, for Petitioner. Yedidya Cohen (argued), Margot L. Carter, and Allison Frayer, Trial Attorneys, Benjamin C. Mizer, Acting Assistant Attorney General, Tony West, Assistant Attorney General, Leslie McKay, Assistant Director, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for Respondent. 4 ACOSTA-OLIVARRIA V. LYNCH OPINION FRIEDLAND, Circuit Judge: In Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), we reserved the question whether a noncitizen applying for adjustment of immigration status could reasonably rely on an opinion of this court during a period in which the Board of Immigration Appeals (“BIA”) had issued a decision that was in tension with our opinion but before the BIA issued a decision directly disagreeing with our opinion. See id. at 522. We now answer that question with respect to Petitioner Acosta-Olivarria and hold that he reasonably relied on the law of this circuit when he applied for adjustment of status during that period. I. Facts Gilberto Acosta-Olivarria, a native and citizen of Mexico, entered the United States in 1995 and took up residence in Arizona with his wife and child. His wife is a lawful permanent resident and two of his now-three children are United States citizens. Between 1995 and 2005, Acosta-Olivarria made multiple trips to and from Mexico. During that period, he was unlawfully present in the United States for a total of over one year, and he reentered the country without being admitted at least once. In 2006, he was arrested for illegal entry and was placed in removal proceedings. While in removal proceedings, Acosta-Olivarria applied for adjustment of status pursuant to 8 U.S.C. § 1255(i) and paid the required $1,000 fee. At the time, our precedent had interpreted § 1255(i) as allowing individuals who had been unlawfully present in the United States for more than a year, but who were eligible for a visa, to apply for an adjustment of status to become lawful permanent residents. ACOSTA-OLIVARRIA V. LYNCH 5 See Acosta v. Gonzales, 439 F.3d 550, 556 (9th Cir. 2006), overruled by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc). Acosta-Olivarria was eligible for a visa because of a petition that his wife had filed based on her permanent-resident status. In December 2006, an immigration judge (“IJ”) considered Acosta-Olivarria’s application. Although Acosta-Olivarria was “inadmissible” because he had been unlawfully present in the United States for more than one year and reentered without being admitted, 8 U.S.C. § 1182(a)(9)(C)(i)(I), the IJ held that he was nonetheless eligible for adjustment of status. In doing so, the IJ relied on our court’s decision in Acosta, which allowed noncitizens to seek relief under § 1255(i) despite being inadmissible under § 1182(a)(9)(C)(i)(I). 1 See Acosta, 439 F.3d at 556. Because his status as inadmissible did not bar his application, the IJ went on to consider the merits of the application and granted discretionary relief. The Department of Homeland Security appealed the IJ’s decision. Before the BIA ruled on the appeal, a BIA panel issued a published opinion, In re Briones, 24 I. & N. Dec. 355 (B.I.A. 2007), in which it held that an alien who is inadmissible under § 1182(a)(9)(C)(i)(I) is not eligible for adjustment of status under § 1255(i). See Briones, 24 I. & N. Dec. at 371. Based on Briones, the BIA remanded Acosta-Olivarria’s case to the IJ for further proceedings. 1 Title 8 U.S.C. § 1182(a)(9)(C)(i) is the codification of the Immigration and Nationality Act (“INA”) § 212(a)(9)(C)(i). Title 8 U.S.C. § 1255(i) is the codification of INA § 245(i). 6 ACOSTA-OLIVARRIA V. LYNCH On remand, the IJ applied Briones and denied AcostaOlivarria’s application for adjustment of status. AcostaOlivarria appealed that decision, but the BIA agreed that Briones controlled. Acosta-Olivarria timely filed a petition for review of the BIA’s decision. II. Legal Background Tension between 8 U.S.C. § 1255(i) and 8 U.S.C. § 1182(a)(9)(C)(i) 2 In 1994, Congress created a path to legal status for noncitizens who had entered the United States without inspection but were nonetheless eligible for a visa. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995, Pub. L. No. 103-317, § 506(b), 108 Stat. 1724, 1765–66 (1994) (codified as amended at 8 U.S.C. § 1255(i)). To qualify for this type of relief, noncitizens must be “admissible” for permanent residence. § 1255(i)(2)(A). When Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), it created new categories of noncitizens who were inadmissible. See IIRIRA, Pub. L. No. 104-208, Div. C., § 302(b)(1), 110 Stat. 3009-546, 3009-576 to -578. Section 1182(a)(9)(C)(i)(I)—which we will refer to as the “oneyear bar”—makes noncitizens inadmissible if they have been “unlawfully present in the United States for an aggregate period of more than 1 year.” Section 1182(a)(9)(C)(i)(II)—which we will refer to as the 2 A fuller summary of this legal background is provided in GarfiasRodriguez v. Holder, 702 F.3d 504, 509-12 (9th Cir. 2012) (en banc). ACOSTA-OLIVARRIA V. LYNCH 7 “removal-order bar”—makes noncitizens inadmissible if they have been ordered removed from the United States. Congress did not specify what should happen when noncitizens who are inadmissible under either provision apply for adjustment of status under § 1255(i). The Ninth Circuit and the BIA Weigh In In Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), overruled by Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227 (9th Cir. 2007), we held that noncitizens could apply for adjustment of status despite being inadmissible under the removal-order bar. Id. at 792–95. We held that interpreting inadmissibility under that provision as a bar to adjustment of status would conflict with certain regulations implementing the Immigration and Nationality Act and lead to illogical results. See id. at 793– 94. The BIA disagreed. In a published opinion, In re Torres-Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006), the BIA rejected Perez-Gonzalez’s interpretation of the regulations. See Torres-Garcia, 23 I. & N. Dec. at 874–75. Accordingly, it held that inadmissibility under the removalorder bar precluded noncitizens from obtaining adjustment of status under § 1255(i). See Torres-Garcia, 23 I. & N. Dec. at 870, 876. Less than one month after the BIA’s decision in TorresGarcia, we addressed the corresponding question with respect to inadmissibility under the one-year bar. In Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), overruled by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), we relied on Perez-Gonzalez to hold that noncitizens inadmissible under the one-year bar were not precluded from seeking adjustment of status under § 1255(i). Acosta, 439 F.3d at 553–56. Our decision in 8 ACOSTA-OLIVARRIA V. LYNCH Acosta did not acknowledge the BIA’s decision in TorresGarcia. Twenty-one months after our decision in Acosta, the BIA addressed whether noncitizens inadmissible under the one-year bar are prohibited from seeking adjustment of status under § 1255(i). Again, the BIA disagreed with us. In In re Briones, 24 I. & N. Dec. 355 (B.I.A. 2007), the BIA held that inadmissibility under the one-year bar prevents a noncitizen from obtaining adjustment of status under § 1255(i). See Briones, 24 I. & N. Dec. at 370. When we next were presented with the questions from Perez-Gonzales and Acosta, we applied the Supreme Court’s decision in Brand X 3 and deferred to the BIA’s interpretations in Torres-Garcia and Briones, adopting them as our own. Thus, in Gonzales, we held that our decision in Perez-Gonzales was no longer valid in light of Torres-Garcia. See Gonzales, 508 F.3d at 1235–42. And in Garfias-Rodriguez, we overruled Acosta because of the BIA’s decision in Briones. See Garfias-Rodriguez, 702 F.3d at 512–14. Retroactivity Neither Briones nor our adoption in Garfias-Rodriguez of the BIA’s interpretation from Briones ends the analysis 3 See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”). ACOSTA-OLIVARRIA V. LYNCH 9 for petitioners, such as Acosta-Olivarria, who filed their applications for adjustment of status before the BIA decided Briones. In Garfias-Rodriguez, we held that to determine whether Briones applies retroactively to a particular applicant for adjustment of status, we apply the test set forth in Montgomery Ward & Co., Inc. v. Federal Trade Commission, 691 F.2d 1322 (9th Cir. 1982). See Garfias-Rodriguez, 702 F.3d at 517–18. Montgomery Ward’s five-factor balancing test requires that we consider: (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 degree of the burden which 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. Garfias-Rodriguez, 702 F.3d at 518 (quoting Montgomery Ward, 691 F.2d at 1333). Because the test requires that a court look at an individual’s own reliance, this retroactivity analysis is applied “on a case-by-case basis.” Id. at 519; see also id. at 523 n.13 (“We express no opinion whether other applicants may avoid the retroactive effect of Briones.”). 10 ACOSTA-OLIVARRIA V. LYNCH III. Discussion Applying the Montgomery Ward retroactivity analysis to Acosta-Olivarria’s case, 4 we hold that the BIA’s decision in In re Briones, 24 I. & N. Dec. 355 (B.I.A. 2007), does not apply retroactively to bar his application. The First Factor: Whether the Issue Is One of First Impression As we recognized in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), the first factor was developed in the context of private-party litigation before the National Labor Relations Board (“NLRB”) and is not well suited for immigration rulings. See id. at 520–21. In the NLRB context, this factor is meant to ensure that the party responsible for a change in law receives the benefits of the new rule. Id. at 520. In the immigration context, in which the government is always a party, this concern is less relevant. Id. at 521. Accordingly, this factor does not weigh in either direction for purposes of determining whether to apply the rule from Briones retroactively. The Second and Third Factors: Whether the New Rule Represents an Abrupt Departure and the Extent of the Petitioner’s Reasonable Reliance on the Former Rule The second and third Montgomery Ward factors are “closely intertwined.” Garfias-Rodriguez, 702 F.3d at 521. 4 Although the BIA did not rule on the retroactivity question, we may address it in the first instance. The parties have filed supplemental briefs on the issue, and the BIA has no special expertise regarding retroactivity. See Garfias-Rodriguez v. Holder, 702 F.3d 504, 514-15 (9th Cir. 2012) (en banc). ACOSTA-OLIVARRIA V. LYNCH 11 “If a new rule ‘represents an abrupt departure from well established practice,’ a party’s reliance on the prior rule is likely to be reasonable, whereas if the rule ‘merely attempts to fill a void in an unsettled area of law,’ reliance is less likely to be reasonable.” Id. Acosta-Olivarria applied for adjustment of status in July 2006. At the time, our decision in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), overruled by GarfiasRodriguez, 702 F.3d 504, held that noncitizens in his position could apply to become lawful permanent residents, see id. at 556, and the BIA had not yet issued its contrary decision in Briones. Acosta-Olivarria argues that he relied on our decision in Acosta in two ways. First, he filed his application for adjustment of status, along with the corresponding $1,000 fee, at a time when the law in our circuit allowed noncitizens to apply for adjustment of status under 8 U.S.C. § 1255(i) despite being inadmissible under the one-year bar (8 U.S.C. § 1182(a)(9)(C)(i)(I)). Indeed, in granting his request for adjustment of status, the IJ specifically relied on Acosta in holding that Acosta-Olivarria was eligible for relief under § 1255(i), despite being inadmissible under the one-year bar. Retroactive application of the rule from Briones would cause Acosta-Olivarria’s application for adjustment of status to be denied, without any refund of the $1,000 fee. Second, Acosta-Olivarria gave up the opportunity to voluntarily depart the United States and start a ten-year clock after which he could have sought admission. Had he voluntarily departed in 2006 instead of staying and filing his application for adjustment of status, 12 ACOSTA-OLIVARRIA V. LYNCH Acosta-Olivarria would have been able to seek admission starting in 2016. 5 The government does not contest that Acosta-Olivarria subjectively relied on Acosta. Rather, it contends that no one who applied for adjustment of status between our decision in Acosta and the BIA’s decision in Briones could have reasonably relied on Acosta because the BIA’s decision in In re Torres-Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006), held that inadmissibility under the removalorder bar precludes the noncitizen from applying for adjustment of status under § 1255(i). See Torres-Garcia, 23 I. & N. Dec. at 870–71, 876. In the government’s view, Torres-Garcia should have enabled noncitizens such as Acosta-Olivarria to predict that Acosta would not survive. We disagree. It was reasonable for Acosta-Olivarria to rely on our decision in Acosta. At the time he applied for adjustment of status, a published opinion of this court allowed noncitizens in his position to apply for adjustment of status despite being inadmissible, and there was no contrary BIA decision interpreting the one-year bar because Briones had not yet been decided. When we announce a legal rule, we do so not only for the benefit of courts, but also for the benefit of the general public. People within the Ninth Circuit should be able to rely on our opinions in making decisions. See U.S. Bancorp Mortg. Co. v. Bonner 5 The inadmissibility bars in 8 U.S.C. § 1182(a)(9)(C)(i)(I) and (II) are subject to a relevant exception: if the noncitizen has been outside of the United States for more than ten years, he or she may apply for admission without being subject to the two bars. See § 1182(a)(9)(C)(ii). ACOSTA-OLIVARRIA V. LYNCH 13 Mall P’ship, 513 U.S. 18, 26 (1994) (“Judicial precedents are presumptively correct and valuable to the legal community as a whole.”). Consistent with this, we noted in Garfias-Rodriguez that reliance “might have been reasonable” if the petitioner had applied within the 21-month period between this court’s decision in Acosta and the BIA’s decision in Briones. Garfias-Rodriguez, 702 F.3d at 522. There, we rejected the petitioner’s particular reliance argument because he had filed his application before Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), or Acosta had been decided. See Garfias-Rodriguez, 702 F.3d at 522. The petitioner in Garfias-Rodriguez could not have taken any actions in reliance on an earlier rule of law from our court because there was no such earlier rule. But that is not true of Acosta-Olivarria. The dissent argues that the government is correct that Acosta-Olivarria could not have relied on Acosta, because the landscape of the law on this general issue was changing rapidly. In particular, Perez-Gonzalez, which held that inadmissibility under the removal-order bar did not preclude applications for adjustment of status, had been drawn into question by the BIA’s decision in TorresGarcia by the time Acosta-Olivarria filed his application. This argument, however, conflates the two bars to admissibility in § 1182(a)(9)(C)(i). Perez-Gonzalez and Torres-Garcia were about the effect of the removal-order bar. See Perez-Gonzalez, 379 F.3d at 792–95; TorresGarcia, 23 I. & N. Dec. at 868. Acosta-Olivarria was inadmissible under the one-year bar. At the time he applied for adjustment of status, Acosta was the only decision in this jurisdiction on the interaction between the one-year bar and the relief he sought. The dissent argues that the two subsections of § 1182(a)(9)(C)(i) cannot be treated 14 ACOSTA-OLIVARRIA V. LYNCH differently. But this would be a reason for arguing that Acosta was wrongly decided in light of Torres-Garcia and Brand X, not a reason why reliance on Acosta would be unreasonable—particularly given that Acosta was decided after Torres-Garcia and Brand X. Our task here is not to grade our court’s performance in deciding Acosta, but rather to decide whether it was reasonable for AcostaOlivarria to rely on that decision. We hold that it was reasonable for Acosta-Olivarria to rely on the law of this circuit deciding the precise legal question he faced, so the second and third Montgomery Ward factors weigh against applying Briones retroactively. The Fourth Factor: The Degree of the Burden That a Retroactive Order Imposes on a Party The fourth Montgomery Ward factor cuts strongly against applying the rule from Briones retroactively because doing so would substantially burden AcostaOlivarria. See Garfias-Rodriguez, 702 F.3d at 523 (“[D]eportation alone is a substantial burden that weighs against retroactive application of an agency adjudication.”). Before the BIA applied Briones, the IJ had granted AcostaOlivarria’s application for adjustment of status and thus allowed him to remain in the United States with his family. If the Briones rule is applied retroactively, he will face deportation. The Fifth Factor: Interest in Applying the New Rule Consistently We recognized in Garfias-Rodriguez that retroactive application of the rule from Briones helps ensure uniformity in the application of the immigration laws. But we emphasized that, because the new rule in Briones does not follow from the plain language of the statute, this factor ACOSTA-OLIVARRIA V. LYNCH 15 “only leans” in favor of retroactive application. GarfiasRodriguez, 702 F.3d at 523. * * * Weighing all the factors, we hold that Briones should not be applied retroactively in this case. Acosta-Olivarria’s reliance interests and the burden that retroactivity would impose on him outweigh the interest in uniform application of the immigration laws. IV. Conclusion For the foregoing reasons, we GRANT the petition for review and REMAND with instructions to reinstate the IJ’s 2006 order granting adjustment of status. RICE, District Judge, dissenting: I respectfully dissent. On balance, the Montgomery Ward factors do not weigh in favor of departing from the general principles of retroactivity. Applying In re Briones, 24 I. & N. Dec. 355 (BIA 2007), the BIA properly found Acosta-Olivarria inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) and thus ineligible for adjustment of status under 8 U.S.C. § 1255(i). As an initial matter, it is important to recognize “[t]he general rule. . . that an appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 (1969); see also id. at 282 (quoting Justice Marshall’s explanation of the rule, delivered 150 years earlier in United States v. Schooner Peggy, 5 U.S. 103, 110 (1801)). This rule “applies with equal force where the change is made by an administrative 16 ACOSTA-OLIVARRIA V. LYNCH agency acting pursuant to legislative authorization.” Id. at 282. Only when application of a new rule would work a “manifest injustice” may the court withhold retrospective application. Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d 1074, 1081 (D.C. Cir. 1987) (en banc) (quoting Thorpe, 393 U.S. at 282). The D.C. Circuit’s Retail, Wholesale & Department Store Union v. NLRB, 466 F.2d 380 (D.C. Cir 1972) decision, from which the Ninth Circuit adopted its Montgomery Ward analytical framework, “set forth a nonexhaustive list of five factors to assist courts in determining whether to grant an exception to the general rule permitting ‘retroactive’ application of a rule enunciated in an agency adjudication.” Clark-Cowlitz, 826 F.2d at 1081 (emphasis added). Once again, that exception, according to the Supreme Court, is for “manifest injustice.” Thorpe, 393 U.S. at 282. This non-exhaustive list of factors “boil[s] down . . . to a question of concerns grounded in notions of equity and fairness,” Clark-Cowlitz, 826 F.2d at 1082 n.6, such that the general rule of retroactivity would apply unless its application would result in manifest injustice. I contend the majority’s balancing of the Montgomery Ward factors here is no longer tethered to the general rule applied for over 200 years. Rather, the majority’s analysis—in which the factors are divorced from the general rule and allowed to become a framework in and of itself—loses sight of the guidance centuries of jurisprudence have offered. With this background, I will analyze the factors. I agree with the majority’s analysis of the first, fourth, and fifth Montgomery Ward factors. The first factor— whether the issue presents one of first impression—does not weigh in favor of either party as it is one “not . . . well ACOSTA-OLIVARRIA V. LYNCH 17 suited to the context of immigration law.” See GarfiasRodriguez v. Holder, 702 F.3d 504, 521 (9th Cir. 2012). In any event, any question of unfairness in applying a new rule, regardless of whether it is a case of first impression, “is fully captured in the second and third Montgomery Ward factors.” Id. Similarly, I concede that the fourth factor—the degree of burden on the alien—favors AcostaOlivarria, albeit not as strongly as the majority and past precedent so characterize. 1 See id. at 523. Finally, I agree that the fifth factor “points in favor” of the government. See id. “[N]on-retroactivity impairs the uniformity of a statutory scheme, and the importance of uniformity in immigration law is well established.” Id. I seriously depart from the majority, however, on the application of the second and third Montgomery Ward factors. I contend these factors weigh strongly in favor of retroactively applying Briones: Because Briones was not an abrupt departure from any “well established practice,” any reliance Acosta-Olivarria may have had on the Ninth Circuit’s reasoning in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), or Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), cannot be considered reasonable. To the 1 The Immigration Judge, under the old rule, had granted AcostaOlivarria’s application for adjustment of status and thus allowed him to remain in the United States with his family; conversely, upholding the BIA’s retroactive application of Briones would cause him to face certain deportation. But deportation has always been the consequence at the heart of Acosta-Olivarria’s proceedings. Our system of justice does not allow an initial wrong decision to dictate the final result, especially when that decision is subject to timely review by a higher authority, as was the case here. 18 ACOSTA-OLIVARRIA V. LYNCH contrary, the BIA’s decision in Briones should have come as no surprise in light of the BIA’s previous rejection of the Circuit’s interpretation of the statutory scheme, which rejection it announced in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), prior to Acosta-Olivarria’s July 2006 application. The second and third Montgomery Ward factors are most appropriately analyzed together. The second factor analyzes whether a rule is an “abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law.” Garfias-Rodriguez, 702 F.3d at 518 (quoting Montgomery Ward & Co. Inc. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982)). The third factor, focusing on the alien’s reliance, is “closely intertwined” with this analysis: “If a new rule represents an abrupt departure from well established practice, a party’s reliance on the prior rule is likely to be reasonable, whereas if the rule merely attempts to fill a void in an unsettled area of law, reliance is less likely to be reasonable.” Id. at 521 (internal quotation marks omitted)). As the Garfias-Rodriguez court properly noted, “these two factors will favor retroactivity if a party could reasonably have anticipated the change in the law such that the new requirement would not be a complete surprise.” Id. (internal quotation marks omitted); see Clark-Cowlitz, 826 F.2d at 1082–83 (“The second factor requires the court to gauge the unexpectedness of a rule and the extent to which the new principle serves the important but workaday function of filling in the interstices of the law.”). The D.C. Circuit offers the following guidance to courts conducting this analysis: From our experience in applying the [retroactivity analysis], there has emerged a basic distinction between (1) new applications of law, clarifications, and ACOSTA-OLIVARRIA V. LYNCH 19 additions, and (2) substitution of new law for old law that was reasonably clear. In the latter situation, which may give rise to questions of fairness, it may be necessary to deny retroactive effect to a rule announced in an agency adjudication in order to protect the settled expectations of those who had relied on the preexisting rule. By contrast, retroactivity in the former case is natural, normal, and necessary, a corollary of an agency’s authority to develop policy through case-by-case adjudication rather than rulemaking. Williams Nat. Gas Co. v. FERC, 3 F.3d 1544, 1554 (D.C. Cir. 1993) (alterations, citations, and internal quotation marks omitted). Importantly—and contrary to the majority’s protestations—the retroactivity analysis does not treat mere precedent and well-established practice alike. When Acosta-Olivarria applied for adjustment of status, there was no settled practice upon which he could reasonably rely. The Ninth Circuit’s pre-Briones opinions hardly constitute a well established practice, especially in light of the tension created by the BIA’s contrary view. True, the Circuit’s opinion in Acosta affirmed its previous reasoning in Perez-Gonzalez, but the BIA’s decision in Torres-Garcia cannot be discounted. Given the unsettled tension between the BIA and this Circuit at the time of Acosta-Olivarria’s application, as well as the resulting 20 ACOSTA-OLIVARRIA V. LYNCH confusion from the two unreconcilable decisions, 62 Briones cannot be called an abrupt break from any well established practice. See Local 900, Int’l Union of Elec., Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1195 (D.C. Cir. 1984) (“Given the confusion in the Board’s and courts’ decisions over the years, the new rule cannot be called an abrupt break with a well-settled policy.”). As such, AcostaOlivarria’s reliance on contrary Ninth Circuit decisions was not reasonable. The majority primarily faults me for conflating the two bars to admissibility. True, the Circuit’s opinion in PerezGonzalez and the BIA’s contrary decision in Torres-Garcia addressed the tension between eligibility for status adjustment under a different bar to admissibility— subsection II, rather than subsection I of 8 U.S.C. § 1182(a)(9)(C)(i). However, as companion provisions, both subsections present the same conflict, see GarfiasRodriguez, 702 F.3d at 509 n.4, and thus their similar treatment should have come as no surprise, see id. at 530 (Kozinski, J., dissenting) (“No one should have been surprised by the interpretation announced in Briones. It was clearly foreshadowed by the BIA’s earlier ruling in In re Torres-Garcia, which predated Acosta by a month . . . .” (citation omitted)). And as the Circuit emphasized in Acosta when concluding that Perez-Gonzalez controlled, “any attempt to distinguish the present case from Perez- 2 The Acosta court did not distinguish—let alone mention—the BIA’s decision in Torres-Garcia, which had been issued one month before Acosta. ACOSTA-OLIVARRIA V. LYNCH 21 Gonzalez based on the different grounds of inadmissability involved would be unpersuasive.” Acosta, 439 F.3d at 554. In reaching its conclusion that Acosta-Olivarria’s reliance was reasonable, the majority overstates the effect of the dicta in Garfias-Rodriguez regarding the reasonableness of reliance during the 21-month period between the Circuit’s opinion in Acosta and the BIA’s decision in Briones. Although the en banc court noted that reliance during this period “might” have been reasonable— perhaps in an attempt to further highlight the unreasonableness of Garfias-Rodriguez’s reliance—the opinion far from binds this Court to a holding that such reliance during this 21-month window is, as a blanket rule, reasonable. See Garfias-Rodriguez, 702 F.3d at 522. Rather, any discussion of the reasonableness of reliance during this period was quickly tempered by the following: From the outset, the tension between § 212(a)(9)(c) and § 245(i) was obvious. That ambiguity in the law—which resulted in a six-year dialogue between the BIA and us—should have given Garfias no assurances of his eligibility for adjustment of status. Garfias might have had reason to be encouraged after our generous reading of the statute in Perez-Gonzalez and Acosta, but, even then, any reliance he placed on our decisions held some risk because our decisions were subject to revision by the BIA under Chevron and Brand X. Id. at 522–23; see also Carrillo de Palacios v. Holder, 708 F.3d 1066, 1072 (9th Cir. 2013) (similarly holding that the tension between the two provisions was “obvious” and 22 ACOSTA-OLIVARRIA V. LYNCH that the ambiguity in the law should have given an alien “no assurances”). Because the BIA’s opinion in Briones cannot justifiably be characterized as an abrupt break from any well established practice but rather should have been no surprise, the reasonableness of Acosta-Olivarria’s reliance is greatly diminished. The extent of Acosta-Olivarria’s reliance—a $1,000 application fee incurred after removal proceedings had already commenced and years beneficially spent in the United States when he hypothetically could have voluntarily departed and started the ten-year readmission clock under 8 U.S.C. § 1182(a)(9)(C)(ii)—is insufficient to outweigh this conclusion. In light of the foregoing, no manifest injustice has been shown here. The more equitable and fair approach would be to treat Acosta-Olivarria like all other aliens who are ineligible for adjustment under Briones. Retroactivity is the general rule and has been for over 200 years. An exception is not warranted in the case of Acosta-Olivarria. Accordingly, I would not disturb the BIA’s decision.
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