Gilberto Acosta-Olivarria v. Loretta E. Lynch , 799 F.3d 1271 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBERTO ACOSTA-OLIVARRIA, No. 10-70902
Petitioner,
Agency No.
v. A079-657-188
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
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 Acosta-
Olivarria’s application for adjustment of status. Acosta-
Olivarria 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 “one-
year 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 Garfias-
Rodriguez 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 removal-
order 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 Torres-
Garcia, 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 Torres-
Garcia.
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 Garfias-
Rodriguez, 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 removal-
order 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 Torres-
Garcia 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; Torres-
Garcia, 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 Acosta-
Olivarria 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 Acosta-
Olivarria. 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 Acosta-
Olivarria’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. Garfias-
Rodriguez, 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 non-
exhaustive 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 Garfias-
Rodriguez 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 Acosta-
Olivarria, 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 Acosta-
Olivarria’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, Acosta-
Olivarria’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 Perez-
Gonzalez 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 Garfias-
Rodriguez, 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.