Lemus v. Lynch, 12-73654

• Decision Date: 16 November 2016
• Docket Number: No. 12-73654,12-73654
• Citation: 842 F.3d 641
• Parties: Jose Daniel Lemus, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

842 F.3d 641

Jose Daniel Lemus, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

No. 12-73654

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2015 Pasadena, California

Filed November 16, 2016

Florence Weinberg (argued) and Andrew K. Nietor, San Diego, California, for Petitioner.

Carmel A. Morgan (argued) and Gray J. Newkirk, Trial Attorneys; Luis E. Perez, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, Washington, D.C.; for Respondent.

Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen, Circuit Judges, and Michael A. Ponsor,^** Senior District Judge.

OPINION

PONSOR, Senior District Judge:

In Holder v. Martinez Gutierrez , ––– U.S. ––––, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012), the Supreme Court unanimously held that the Board of Immigration Appeals ("BIA") permissibly construed section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a), when it concluded that an alien seeking cancellation of removal had to satisfy the years-of-residence requirement on his own, without relying on a parent's residential history.

Id. at 2014–15. Petitioner Lemus contends that Martinez Gutierrez announced a new rule of law and that, under Chevron Oil Co. v. Huson , 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), its holding should not be applied retroactively to him.

We disagree. Lemus's citation of Nunez–Reyes v. Holder , 646 F.3d 684 (9th Cir. 2011) (en banc), in support of his argument for prospective application of Martinez Gutierrez is not persuasive. In Nunez–Reyes , we applied Chevron Oil's retroactivity analysis, because we ourselves were explicitly adopting a new rule, setting aside our own longstanding circuit precedent. Id. at 692. Where, as here, we are adopting no new rule on our own, but merely (at the direction of the Supreme Court) deferring to the BIA, Chevron Oil's retroactivity criteria are inapplicable.

Garfias–Rodriguez v. Holder , 702 F.3d 504 (9th Cir. 2012) (en banc), offers a more compelling precedent on the issue of retroactivity. In that case, we did not announce a new rule on our own authority, as in Nunez–Reyes , but rather deferred to a rule previously announced by the BIA, as Martinez Gutierrez has instructed us to do here. Garfias–Rodriguez held that in this situation the proper approach to the issue of retroactivity is set forth in Montgomery Ward & Co., Inc. v. FTC , 691 F.2d 1322 (9th Cir. 1982). 702 F.3d at 520. Applying Montgomery Ward , we hold that Martinez Gutierrez should be applied retroactively. Based on this, we will deny the petition.

I. FACTS AND PROCEDURAL HISTORY

Petitioner Jose Daniel Lemus is a Guatemalan citizen who entered the United States as a four-year-old in 1993 with his mother. In 2006, after Lemus turned eighteen, he became a legal permanent resident through his stepfather. On April 3, 2011, Lemus was crossing by car from Mexico to Calexico, California when a routine sweep uncovered nearly fifty pounds of marijuana in his vehicle's rear panels. Lemus was initially charged with importation of marijuana and held in custody. On June 7, 2011, he pleaded guilty to one count of making a materially false statement to a federal officer in violation of 18 U.S.C. § 1001. On July 1, 2011, he was sentenced to time served. Four days later, he was transferred into the custody of the Department of Homeland Security and was thereafter placed into removal proceedings, charged with being inadmissible as an alien who was or had been a trafficker in illicit controlled substances.

In proceedings before the IJ, Lemus admitted that he was involved in drug trafficking and was to be paid $3,000 for his thwarted attempt to bring marijuana into the United States. Nevertheless, he sought relief through an application for cancellation of removal, a course available to certain permanent residents. Section 240(A)(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(a), authorizes the Attorney General to cancel the removal of a person who: "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony."

The government argued that Lemus was not eligible for this relief because he had not fulfilled the seven-year continuous residency requirement. Lemus acknowledged that he could not independently satisfy this requirement, since he had only been a legal resident for approximately five years when he pleaded guilty to the false statement charge.¹ He argued, however, that by imputing his stepfather's years of residency to himself, he could satisfy the requisite number of years needed to qualify.

At the time of the proceeding before the IJ, this imputation was permitted—in the teeth of the BIA's vigorous disagreement—under the authority then prevailing in the Ninth Circuit. See Mercado–Zazueta v. Holder , 580 F.3d 1102 (9th Cir. 2009) ; Cuevas–Gaspar v. Gonzales , 430 F.3d 1013 (9th Cir. 2005). A dispute nevertheless arose at the hearing before the IJ, not about the principle of imputing a parent's residential history, but about whether Lemus's stepfather had actually acquired enough countable years to allow Lemus to satisfy the residency requirement. The IJ's inquiry therefore necessarily focused on when the stepfather had actually been admitted for purposes of this calculation.

Lemus argued before the IJ that his stepfather was admitted as part of the family unity program, which would have meant that, under Ninth Circuit authority, Lemus could count his stepfather's years in presenting his case for cancellation. The government disagreed, contending that the stepfather's admission was based on a deferred action decision, which would have precluded Lemus from imputing his stepfather's residential history. In order to clarify the historical picture, Lemus's lawyer asked the IJ to order the government to produce the stepfather's Alien Registration File ("A–File").² The IJ continued the case in the hope that the government would locate and turn over the A–File, but the government ultimately failed to do this.

At the final hearing before the IJ, on April 17, 2012, the principal issue was the date upon which Lemus's stepfather was admitted. The IJ sided with the government and found Lemus ineligible for cancellation of removal. The IJ also held that he had no authority to require the Department of Homeland Security to produce the stepfather's A–File, and he ordered Lemus removed.

Lemus appealed the IJ's ruling to the BIA where, again, the central issue initially was whether Lemus could take advantage of his stepfather's residential history to satisfy the eligibility requirements for his application for cancellation of removal. Lemus conceded, as he did before the IJ, that he could not independently meet the seven-year residency requirement.

While the BIA appeal was pending, the Supreme Court issued its decision in Holder v. Martinez Gutierrez . In its unanimous decision, the Supreme Court reversed the line of Ninth Circuit decisions that allowed imputation of a parent's years of residency under 8 U.S.C. § 1229b(a), instead holding that the BIA's contrary construction of the statute, as set forth in Matter of Escobar , 24 I. & N. Dec. at 235, was reasonable and therefore entitled to deference. Martinez Gutierrez , 132 S.Ct. at 2021. In Escobar , the BIA had interpreted the statute as requiring that an alien satisfy the years of residency requirement independently, without imputing a parent's residence period. 24 I. & N. Dec. at 234–35.

Lemus argued to the BIA, as he does here, that Martinez Gutierrez should not apply retroactively to him in light of the contrary Ninth Circuit precedent controlling on June 7, 2011, when he pleaded guilty to making a materially false statement. Lemus contended that he would have proceeded differently in his criminal case if he had known that his plea would render him ineligible for cancellation of removal. Lemus further argued before the BIA that, since (in his view) Martinez Gutierrez should not apply retroactively, his stepfather's residency ought to be imputed to him and that, if there was any uncertainty regarding his stepfather's residency, the government should be required to produce his stepfather's A–File to clear up the confusion.

The BIA concluded that Martinez Gutierrez foreclosed any argument for imputation, rejecting Lemus's contention that it should not be applied retroactively. The BIA reasoned that because retroactivity is the default rule, and none of the limited circumstances justifying departure from that rule was present in Lemus's case, Lemus could not avoid retroactive application of Martinez Gutierrez . The BIA therefore affirmed the IJ's denial of relief. The BIA also ruled that, without the right to impute his stepfather's residency, Lemus could not claim prejudice based on any denial of access to his stepfather's A–File.

Lemus has appealed the decision of the BIA to this court. He argues that Martinez Gutierrez should not apply to him and that this court should remand this matter to the IJ for a hearing on the question whether Lemus is eligible for cancellation of removal. He also seeks a determination by this court that the IJ's refusal to require the government to produce his stepfather's A–File prejudiced him and that, on remand, the government must produce the file.

II. JURISDICTION AND STANDARD OF REVIEW

Our jurisdiction derives from 8 U.S.C. § 1252(a)(1), which authorizes judicial review of final orders of removal, and § 1252(a)(2)(D), which authorizes review of questions of law. The question now before us, regarding the retroactivity of Martinez Gutierrez , raises a pure issue of law, which we review de novo . Garfias–Rodriguez , 702 F.3d at 512 n.6.

III. DISCUSSION

The issue here is straightforward. The parties agree that, without relying on his stepfather's residential...