Oscar Martinez Ramirez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR MARTINEZ RAMIREZ, No. 20-70075
Petitioner, Agency No. A077-289-010
v.
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The Government, citing our unpublished memorandum disposition in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unpublished memorandum dispositions are not precedent, 9th Cir. R. 36-3(a), and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.
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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 Garfias-
Rodriguez 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