702 F.3d 504 (9th Cir. 2012), 09-72603, Garfias v. Holder

Docket Nº:09-72603.
Citation:702 F.3d 504
Opinion Judge:BYBEE, Circuit Judge:
Party Name:Francisco Javier GARFIAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
Attorney:Matt Adams, Northwest Immigrant Rights Project, Seattle, WA, for the petitioner. Stuart F. Delery, Acting Assistant Attorney General, Donald E. Keener, Deputy Director, and Luis E. Perez, Senior Litigation Counsel, Department of Justice, Civil Division, Washington, D.C.; John W. Blakeley, Senior ...
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, SUSAN P. GRABER, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, JAY S. BYBEE, SANDRA S. IKUTA, and MARY H. MURGUIA, Circuit Judges. Opinion by Judge BYBEE; Concurrence by Chief Judge KOZINSKI; C...
Case Date:October 19, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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702 F.3d 504 (9th Cir. 2012)

Francisco Javier GARFIAS, Petitioner,

v.

Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-72603.

United States Court of Appeals, Ninth Circuit.

October 19, 2012

Argued and Submitted En Banc June 20, 2012.

Page 505

[Copyrighted Material Omitted]

Page 506

Matt Adams, Northwest Immigrant Rights Project, Seattle, WA, for the petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Donald E. Keener, Deputy Director, and Luis E. Perez, Senior Litigation Counsel, Department of Justice, Civil Division, Washington, D.C.; John W. Blakeley, Senior Litigation Counsel, Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

Gary A. Watt, Amicus Curiae, Hastings Appellate Project, Pro Bono Counsel for Eriberto Errera, San Francisco, CA.

Beth Werlin, American Immigration Council, Washington, DC, Stacy Tolchin, Law Offices of Stacy Tolchin, Los Angeles, CA, Trina Realmuto, National Immigration Project of the National Lawyers Guild, Boston, MA, Marc Van Der Hout, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, CA, Amicus Curiae, Named Plaintiffs and Proposed Redefined Class in Duran Gonzales v. Department of

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Homeland Security, No. 09-35174 (9th Cir.), Washington, D.C.

Charles Roth, Amicus Curiae, National Immigration Justice Center, Chicago, IL.

Stephen W. Manning, Amicus Curiae, American Immigration Lawyers Association, Washington, D.C.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-766-006.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, SUSAN P. GRABER, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, JAY S. BYBEE, SANDRA S. IKUTA, and MARY H. MURGUIA, Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Chief Judge KOZINSKI; Concurrence by Judge GOULD; Partial Concurrence and Partial Dissent by Judge GRABER; Dissent by Judge REINHARDT; Dissent by Judge PAEZ.

OPINION

BYBEE, Circuit Judge:

In National Cable & Telecommunications Ass'n v. Brand X Internet Services, the Supreme Court instructed federal courts to defer to reasonable agency interpretations of ambiguous statutes, even when those interpretations conflict with the prior holding of a federal circuit court. 545 U.S. 967, 982-83, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). That is the situation we confront here. In Acosta v. Gonzales, 439 F.3d 550, 553-56 (9th Cir.2006), we held that aliens who are inadmissible under § 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1182(a)(9)(C)(i)(I), are eligible for adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i), in spite of the latter section's requirement of admissibility. A year later, the Board of Immigration Appeals (" BIA" ) decided that such aliens are not eligible to apply for adjustment of status under § 245(i) in In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007). In this case, we must decide whether to defer to the agency's interpretation of the INA and overrule Acosta and, if so, whether the agency's interpretation may be applied to Garfias retroactively.

We conclude that we must defer to the BIA's decision, and we hold that the BIA's decision may be applied retroactively to Garfias. We thus deny his petition for review.

I. FACTS AND PROCEDURAL HISTORY

Francisco Javier Garfias-Rodriguez (" Garfias" ) is a native and citizen of Mexico. He unlawfully entered the United States in 1996 and briefly departed twice, first to visit his ailing mother in 1999 and then to attend her funeral in 2001. He reentered the United States without permission both times. In April 2001, Garfias's then-current employer filed an application for labor certification with the Oregon Employment Department on his behalf but later withdrew the application after he ceased working for that employer. Garfias married his wife Nancy, a United States citizen, in April 2002. He applied to adjust his status to that of a lawful permanent resident in June of 2002, paying a total of $1305 in fees. In 2004, United States Citizenship and Immigration Services issued Garfias a Notice to Appear (" NTA" ) charging him with removability under INA § 212(a)(6)(A)(i), as " [a]n alien present in the United States without being admitted or paroled," and § 212(a)(9)(C)(i), as an alien who has been " unlawfully present

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in the United States for an aggregate period" of more than one year and reentered without permission.

In proceedings before an immigration judge (" IJ" ), Garfias conceded removability on both grounds charged in the NTA. He requested relief in the form of adjustment of status and, in the alternative, voluntary departure. In July 2004, the IJ denied Garfias's application for status adjustment, holding that Garfias was inadmissible under INA § 212 and thus ineligible for adjustment under § 245(i). In a per curiam decision in March 2006, the BIA sustained Garfias's appeal. The BIA noted that " the Ninth Circuit, in whose jurisdiction this proceeding arises, held that an alien inadmissible under section 212(a)(9)(C)(i) of the Act could apply for adjustment of status under section 245(i) in conjunction with a request that the Attorney General retroactively consent to his reapplying for admission," and remanded the case to the IJ for reconsideration in light of those decisions. See Acosta, 439 F.3d at 556; Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004).

On remand, Garfias renewed his application for adjustment of status, but in November 2007 the IJ once again denied the request for adjustment. The IJ found that Garfias could not establish that his application was filed before § 245(i)'s expiration date of April 30, 2001.1 The IJ reasoned that Garfias's application based on his marriage to a U.S. citizen was filed after April 30, 2001, and he was not grandfathered in by his application for a labor certification because there was no proof the labor certification was " properly filed." Garfias again appealed to the BIA.

The BIA dismissed his appeal in July 2009. It did not rule on the IJ's grounds for denying the application. Instead, the BIA noted that subsequent to the IJ's decision, it had issued In re Briones, 24 I. & N. Dec. at 371, which held that an alien could not seek status adjustment under § 245(i) if he was ineligible for admission under § 212(a)(9)(C)(i)(I). The BIA then explained that since this court had abrogated Perez-Gonzalez under a Brand X theory, see Duran Gonzales v. Dep't of Homeland Sec. (Duran Gonzales I), 508 F.3d 1227, 1241-42 (9th Cir.2007), the BIA could now apply the Briones rule to cases arising in the Ninth Circuit. It therefore dismissed the appeal, granted Garfias sixty days to voluntarily depart, ordered removal in the event that he failed to depart, and informed him that filing a petition for review would automatically terminate the grant of voluntary departure.

Garfias filed a petition for review with this court. He raised three arguments: (1) that Briones is not entitled to Chevron 2 deference, (2) that Briones should not be applied to his case retroactively, and (3) that 8 C.F.R. § 1240.26(i), which terminates any grant of voluntary departure upon the filing of a petition for judicial review of a removal order, is an invalid exercise of statutorily delegated power. A panel of this court rejected his claims and

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denied the petition for review. Garfias-Rodriguez v. Holder, 649 F.3d 942, 953 (9th Cir.2011). We granted Garfias's petition for rehearing en banc. Garfias-Rodriguez v. Holder, 672 F.3d 1125 (9th Cir.2012).

II. LEGAL BACKGROUND

A. The Tension Between INA § 212(a)(9)(C) and § 245(i)

Congress enacted § 245(i) in 1994 to provide an avenue for " aliens who entered without inspection but who have access to a visa (typically an immigrant spouse of a citizen) to legalize their status without leaving the country and incurring a long and needless separation from their family." Ramirez-Canales v. Mukasey, 517 F.3d 904, 907-08 (6th Cir.2008); see also Briones, 24 I. & N. Dec. at 359-60. However, the Attorney General is permitted to adjust an applicant's status under this section only if " the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence." 8 U.S.C. § 1255(i)(2)(A).

When § 245(i) was first enacted, aliens present in the United States who had entered without inspection were considered " deportable" aliens under former § 241(a)(1)(B) of the INA. See Briones, 24 I. & N. Dec. at 362-63 (citing 8 U.S.C. § 1251(a)(1)(B) (1994)). Thus, that provision did not implicate § 245(i)'s requirement that the alien be " admissible" to the United States. However, in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (" IIRIRA" ), which " recharacterized" as " inadmissible" aliens who had previously been labeled " deportable" for entering the country without inspection. Briones, 24 I. & N. Dec. at 363. As a result, § 212 currently renders inadmissible " [a]ny alien who ... has been unlawfully present in the United States for an aggregate period of more than 1 year, ... and who enters or attempts to reenter the United States without being admitted." 8 U.S.C. § 1182(a)(9)(C)(i)(I). IIRIRA did not, however, address the effect of this change on the status adjustment provision of § 245(i).

In short, although § 245(i) ostensibly provides an avenue for aliens eligible to receive a visa but living illegally in the United States to adjust their status to that of a lawful permanent resident, requirement of " admissibility" seems to vitiate that purpose for some illegal aliens...

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