Munoz v. Lynch , 631 F. App'x 510 ( 2015 )


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  •                                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                         November 10, 2015
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    RODOLFO MOLINA MUNOZ,
    Petitioner,
    No. 14-9575
    v.                                                      (Petition for Review)
    LORETTA E. LYNCH, United States
    Attorney General,†
    Respondent.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
    _________________________________
    Petitioner Rodolfo Molina Munoz has been ordered removed for unlawful
    presence in the United States. He does not challenge his removability, but he does
    seek review of an order of the Board of Immigration Appeals (the BIA) finding that
    he is ineligible for an adjustment of status that would forestall his removal. We agree
    with Mr. Munoz that his reliance on this court’s precedent in applying for an
    adjustment of status precludes the BIA from applying its own subsequent decision
    †
    In accordance with Federal Rule of Appellate Procedure 43(c)(2), Loretta E.
    Lynch is substituted for Eric H. Holder Jr. as the respondent in this action.
    *
    This order and judgment is not binding precedent, except under the doctrines
    of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
    its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
    10th Circuit Rule 32.1.
    retroactively to Mr. Munoz’s application. We therefore grant Mr. Munoz’s petition
    for review and remand the case to the BIA for further proceedings consistent with
    this decision.
    I.     BACKGROUND
    The pertinent facts are not in dispute. Mr. Munoz resided illegally in the
    United States beginning sometime in 1971. He briefly departed the United States and
    returned without inspection in October 2003.
    The dispute in this case centers around two conflicting provisions of the
    Immigration and Nationality Act (the INA). One provision of the INA, 
    8 U.S.C. § 1182
    (a)(9)(C)(i)(I), deems inadmissible those aliens, like Mr. Munoz, who remain
    in the United States unlawfully for more than one year, leave the country, and
    subsequently enter or attempt to reenter without being admitted. Another provision, 
    8 U.S.C. § 1255
    (i), invests the Attorney General with discretion to adjust the status of
    an alien to that of a lawful permanent resident if the alien meets certain criteria,
    including that the alien is currently admissible. The INA does not expressly state
    whether aliens who meet the criteria set forth in § 1255(i) are nevertheless ineligible
    for adjustment of status if they fall within the category of aliens described in
    § 1182(a)(9)(C)(i)(I).
    In 2005, this court decided Padilla-Caldera v. Gonzales (Padilla-Caldera I),
    
    453 F.3d 1237
     (10th Cir. 2005), holding that an alien who would otherwise be
    deemed inadmissible by § 1182(a)(9)(C)(i)(I) may nonetheless seek adjustment of
    status under § 1255(i). Padilla-Caldera I, 453 F.3d at 1244. On April 30, 2007, in
    2
    reliance upon Padilla-Caldera I, Mr. Munoz applied for adjustment of his status to
    lawful permanent resident status.
    While Mr. Munoz’s application for adjustment of status was pending, the BIA
    decided In re Briones, 
    24 I. & N. Dec. 355
     (BIA 2007). In Briones, the BIA
    concluded, contrary to our Padilla-Caldera I decision, that an alien who is
    inadmissible under § 1182(a)(9)(C)(i)(I) cannot qualify for an adjustment of status
    under § 1255(i) absent a waiver of inadmissibility (which is not at issue here). 24 I.
    & N. Dec. at 370–71. After significant delay, the United States Citizenship and
    Immigration Services denied Mr. Munoz’s application for adjustment of status in
    light of Briones. The Department of Homeland Security then placed Mr. Munoz in
    removal proceedings. Mr. Munoz admitted to the allegations against him and
    conceded removability but renewed his application for adjustment of status on the
    ground that Padilla-Caldera I controlled his case.
    While these removal proceedings were pending, this court decided Padilla-
    Caldera v. Holder (Padilla-Caldera II), 
    637 F.3d 1140
     (10th Cir. 2011), in which we
    deferred to the BIA’s construction of the relevant statutory provisions as mandated
    by National Cable & Telecommunications Ass’n v. Brand X Internet Services, 
    545 U.S. 967
     (2005). Padilla-Caldera II, 637 F.3d at 1152–53. We accordingly reversed
    the rule announced in Padilla-Caldera I, instead holding inadmissibility under
    § 1182(a)(9)(C)(i)(I) precludes an adjustment of status under § 1125(i). Id. In light of
    Briones and Padilla-Caldera II, the Immigration Judge pretermitted Mr. Munoz’s
    application and ordered him removed from the United States. Mr. Munoz appealed to
    3
    the BIA, which dismissed his appeal, holding Padilla-Caldera II and Briones
    governed his case. This petition for review followed.
    II.    DISCUSSION
    Mr. Munoz argues the BIA improperly applied Briones retroactively to his
    application for adjustment of status. We agree. We recently decided De Niz Robles v.
    Lynch, --- F.3d ---, No. 14-9568, 
    2015 WL 6153073
     (10th Cir. Oct. 20, 2015), in
    which we held that the BIA’s decision in Briones could not be applied retroactively
    to an alien situated similarly to Mr. Munoz. De Niz Robles controls the outcome here.
    As a general rule, legislative enactments are given only prospective effect,
    while judicial decisions are also given retroactive effect. 
    Id.
     at *3–4. Newly
    promulgated agency rules, due their affinity to legislation, are also given only
    prospective effect. 
    Id. at *5
    . De Niz Robles addressed the question of whether an
    agency adjudication like the BIA’s decision in Briones, and our subsequent deferral
    to that decision in Padilla-Caldera II, should be given retroactive or only prospective
    effect. 
    Id.
     at *6–7. We concluded the BIA’s decision in Briones “should be treated no
    different[ly] from a new agency rule announced by notice-and-comment rulemaking
    . . . for purposes of retroactivity analysis.” 
    Id. at *7
     (alteration and omission in
    original) (internal quotation marks omitted).
    Thus, De Niz Robles instructs us to “balance[] the costs and benefits associated
    with giving retroactive effect to agency adjudications” on a case-by-case basis
    through application of the five-factor test derived from Stewart Capital Corp. v.
    4
    Andrus, 
    701 F.2d 846
     (10th Cir. 1983). Id. at *10 (alteration in original) (internal
    quotation marks omitted).
    These factors are (1) whether the case is one of first impression; (2)
    whether the new rule is an abrupt departure from well-established
    practice or merely an attempt to fill a void in an unsettled area of law;
    (3) whether and to what extent the party against whom the new rule is
    applied relied on the former rule; (4) whether and to what extent the
    retroactive order imposes a burden on a party; and (5) whether and to
    what extent there is a statutory interest in applying a new rule despite
    reliance of a party on an old standard.
    Farmers Tel. Co. v. F.C.C., 
    184 F.3d 1241
    , 1251 (10th Cir. 1999) (internal quotation
    marks and brackets omitted).
    De Niz Robles applied these factors and thus provides the answer to many of
    these inquiries with respect to the retroactive application of Briones. There, we
    concluded the first factor is generally irrelevant in the context of removal
    proceedings. De Niz Robles, 
    2015 WL 6153073
    , at *10. We also rejected the BIA’s
    argument that it was merely filling a void in the law and concluded Briones was an
    “abrupt departure” from existing judicial precedent. 
    Id.
     Regarding the fourth and fifth
    factors, we determined these factors addressed the “balance of comparative harms”
    between requiring the BIA to consider an application for adjustment of status and
    depriving an alien of the opportunity to have that application considered—resulting
    in the alien’s certain deportation—and concluded these factors weigh heavily in favor
    of the alien in this context. 
    Id. at *12
    . The same reasoning applies to these factors in
    Mr. Munoz’s case, and we accordingly conclude they weigh against retroactive
    application of Briones here.
    5
    We are thus left with only the third factor, evaluating Mr. Munoz’s individual
    reliance on our decision in Padilla-Caldera I. With respect to this factor, there is
    little doubt Mr. Munoz relied on our decision in Padilla-Caldera I at the time he filed
    his application for adjustment of status. After we decided Padilla-Caldera I and
    before the BIA decided Briones, an alien in Mr. Munoz’s position “possessed two
    lawful options to secure permanent residency in this country—file a petition for
    adjustment of status under Padilla-Caldera I or leave the country and begin the
    waiting period.” 
    Id. at *11
    . Mr. Munoz “relied on Padilla-Caldera I in choosing the
    first course.” See 
    id.
     The BIA argues Mr. Munoz’s reliance on Padilla-Caldera I was
    “risky at best” because the judicial interpretation of these statutes was “subject to
    [BIA] revision.” But we rejected in De Niz Robles the argument that “a party cannot
    reasonably rely on a judicial decision whenever its interpretation of the law is
    foreseeably subject to ‘revision’ by an executive agency.” 
    Id.
     Rather, we concluded,
    even where an agency or the legislature may foreseeably reenter the field and revise
    the statute, “the people may rely on the law as it is, so long as it is, including any of
    its associated judicial interpretations.” 
    Id.
    The BIA also calls into question Mr. Munoz’s reliance interest by arguing the
    “detriment and burden he has suffered is the impairment of his ability to avoid the
    consequences of his continuing immigration violation—an impairment which merits
    little solicitude.” But we observed in De Niz Robles that Padilla-Caldera I did not
    purport to invest aliens with a right to remain in the country illegally. 
    Id.
     at *2 n.2.
    Rather, we considered the right at issue to be the “limited statutory right” “to file a
    6
    petition for adjustment of status” and thereby seek “the possibility of relief.” 
    Id.
     We
    conclude that Mr. Munoz seeks to vindicate, and the BIA seeks to retroactively
    withdraw, this same right. We therefore reject the argument Mr. Munoz has not
    suffered a detriment adequate to support his claim of reliance on Padilla-Caldera I.
    We conclude the relevant factors weigh against the retroactive application of
    Briones to Mr. Munoz’s application for adjustment of status. We therefore grant
    Mr. Munoz’s petition for review of the BIA’s decision and remand for further
    proceedings.
    III.   CONCLUSION
    The petition for review is granted and the case remanded to the BIA for further
    proceedings consistent with this decision.
    Entered for the Court
    Carolyn B. McHugh
    Circuit Judge
    7
    

Document Info

Docket Number: 14-9575

Citation Numbers: 631 F. App'x 510

Judges: Phillips, McHugh, Moritz

Filed Date: 11/10/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024