Gonzales v. U.S. Dep't of Homeland Sec.

• Decision Date: 29 March 2013
• Docket Number: No. 09–35174.,09–35174.
• Citation: 712 F.3d 1271
• Parties: Aurelio Duran GONZALES; Maria C. Estrada; Maria Luisa Martinez De Munguia; Irma Palacios De Banuelos; Lucia Muniz De Andrade; Karina Noris; Adriana Pouparina, Plaintiffs–Appellants, v. U.S. DEPARTMENT OF HOMELAND SECURITY and Janet Napolitano, Secretary of the Department of Homeland Security, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

712 F.3d 1271

Aurelio Duran GONZALES; Maria C. Estrada; Maria Luisa Martinez De Munguia; Irma Palacios De Banuelos; Lucia Muniz De Andrade; Karina Noris; Adriana Pouparina, Plaintiffs–Appellants,

v.U.S. DEPARTMENT OF HOMELAND SECURITY and Janet Napolitano, Secretary of the Department of Homeland Security, Defendants–Appellees.

No. 09–35174.

United States Court of Appeals,Ninth Circuit

Argued and Submitted Sept. 21, 2011.

Filed March 29, 2013.

Matt Adams (argued), Northwest Immigrant Rights Project, Seattle, Washington; Trina Realmuto, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts; Beth Werlin, American Immigration Council, Washington, D.C.; Marc Van Der Hout, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California; Stacy Tolchin, Law Offices of Stacy Tolchin, Los Angeles, California, for Plaintiffs–Appellants.

Elizabeth J. Stevens (argued) and Sherease Pratt, United States Department of Justice, Washington, D.C.; Priscilla To–Yin Chan, Office of the United States Attorney, Seattle, Washington, for Defendant–Appellees.

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, Chief District Judge, Presiding. D.C. No. 2:06–cv–01411–MJP.

Before: WILLIAM C. CANBY, Jr., BARRY G. SILVERMAN, and CONSUELO M. CALLAHAN, Circuit Judges.

Order; Opinion by Judge SILVERMAN; Dissent by Judge CALLAHAN.

ORDER

The opinion filed on October 25, 2011, 659 F.3d 930, is withdrawn. A superseding opinion and dissent will be filed concurrently with this order. The Petition for Rehearing En Banc filed on December 9, 2011 is denied as moot.

OPINION

SILVERMAN, Circuit Judge:

Plaintiff–Appellants are Aurelio Duran Gonzales and six other Mexican citizens. Each of these aliens was previously deported or removed and then subsequently reentered the United States without inspection. From within the United States, these individuals applied for an adjustment of status and an I–212 waiver of their inadmissibility due to their previous removal and unlawful reentry. Plaintiffs construed Ninth Circuit law at the time as permitting them to seek such a waiver, notwithstanding the statutory requirement that ten years elapse between an alien's last departure from the United States and his or her waiver application. See Perez–Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004). They filed suit to challenge the application of the ten-year requirement to deny them waivers.

After our decision in Perez–Gonzalez, however, the Board of Immigration Appeals had in fact disagreed with aspects of that decision and construed the statutory scheme to require satisfaction of the ten-year requirement, even for I–212 waiver applicants already unlawfully present in the United States. On the first appeal in this matter, we deferred to the BIA's reasonable statutory interpretation, citing National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 981–85, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). Duran Gonzales v. DHS, 508 F.3d 1227, 1235–39, 1242 (9th Cir.2007)(“Duran Gonzales I ”). Ninth Circuit law thereby became consistent with the agency's position.

On remand, rejecting Plaintiffs' objections and motions, the district court concluded the BIA's rule would have full retroactive effect, denied motions to amend the complaint and class definition as futile, and dismissed this class action. We affirmed this ruling in October 2011, but stayed the mandate pending the resolution of en banc proceedings in Garfias–Rodriguez v. Holder, 702 F.3d 504 (9th Cir.2012) (en banc). Ultimately, that decision changed the retroactivity test for cases in which Brand X mandates deference to an agency's statutory interpretation, even if there is a contrary prior Ninth Circuit case. Because the mandate never issued for our opinion on this appeal and there has been an intervening change in authority, we decline to apply the putative law of the case, vacate the district court's judgment, and remand for reconsideration of the motions to amend the complaint and class definition in light of the new retroactivity test set forth in Garfias–Rodriguez.

BACKGROUND

Plaintiffs were all previously deported or removed and then unlawfully reentered the United States. After returning to the United States, they filed applications for adjustment of status under 8 U.S.C. § 1255. That statute “allowed the Attorney General to adjust the status of an alien who had entered the United States without inspection to that of a legal permanent resident provided that the alien (1) was admissible to the United States and the beneficiary of an immediately available immigrant visa, and (2) paid an application fee five times the usual fee.” Duran Gonzales I, 508 F.3d at 1230.

Plaintiffs' path to adjustment of status was complicated by two provisions of the Illegal Immigration Reform and Immigration Responsibility Act of 1996. The first appeared to deny Plaintiffs relief. 8 U.S.C. § 1231(a)(5) provides “for automatic reinstatement of an alien's prior removal or deportation order when an alien has reentered the United States illegally,” and further provides that “ ‘the alien is not eligible and may not apply for any relief’ from removal.” Duran Gonzales I, 508 F.3d at 1230 (quoting 8 U.S.C. § 1231(a)(5)).

The second section suggested a possible exception to this bar. Although 8 U.S.C. § 1182(a)(9)(C)(i)(II) renders inadmissible any previously removed alien “who enters or attempts to reenter the United States without being admitted,” Section 1182(a)(9)(C)(ii) creates an exception for:

an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien's reapplying for admission.

8 U.S.C. § 1182(a)(9)(C)(ii). Two apparent requirements for this exception became the subject of litigation in this Circuit: (1) that the application be made from outside the United States; and (2) that the alien request the waiver more than ten years after his or her last departure from the United States.¹

Plaintiffs sought Form I–212 waivers of inadmissibility pursuant to 8 U.S.C. § 1182(a)(9)(C)(ii) and 8 C.F.R. § 212.2 from within the United States, and applications for adjustment of status under 8 U.S.C. § 1255(i). United States Citizenship and Immigration Services denied three of the Plaintiffs' applications on the ground that the ten-year period had not elapsed since the dates of the applicants' last departures from the United States. ²8 U.S.C. § 1182(a)(9)(C)(ii). Allegedly, Plaintiffs took these steps to secure waivers in reliance on our opinion in Perez–Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004). Perez–Gonzalez held that an alien could apply for a Form I–212 waiver from within this country: “[T]he INS committed legal error when it concluded that Perez–Gonzalez could not apply for a Form I–212 waiver from within this country.” 379 F.3d at 789.Perez–Gonzalez also “concluded that an alien who was inadmissible under section 212(a)(9)(C)(i) of the Act could apply for a waiver under 8 C.F.R. § 212.2 even though the alien's last departure from the United States occurred ... less than 10 years prior to the date of his request for consent to reapply for admission.” Matter of Torres–Garcia, 23 I. & N. Dec. 866, 876 (BIA 2006) (citing Perez–Gonzalez, 379 F.3d at 794 n. 10);see also Duran Gonzales I, 508 F.3d at 1241.

In January 2006, the Board of Immigration Appeals ruled in Matter of Torres–Garcia that individuals such as Plaintiffs were not eligible for relief, since an I–212 waiver of inadmissibility requires the alien's compliance with the statutory “ten-year bar,” even if that alien is applying from within the United States. 23 I. & N. Dec. at 876; Morales–Izquierdo v. DHS, 600 F.3d 1076, 1079 (9th Cir.2010) (citation and quotation marks omitted). ³ DHS subsequently issued a “memorandum direct[ing] field officers that an alien inadmissible under § 212(a)(9)(C) could not file for consent to reapply until that alien had lived abroad for 10 years.” Gonzalez v. DHS, No. C06–1411–MJP, 2009 WL 302283, at *2 (W.D.Wash. Feb. 6, 2009). In September 2006, Plaintiffs filed suit to challenge this memorandum as a violation of Perez–Gonzalez and sought injunctive and declaratory relief, a temporary restraining order, and class certification. Gonzalez v. DHS, No. C06–1411–MJP, 2009 WL 506848, at *2 (W.D.Wash. Feb. 27, 2009).⁴ The district court certified Plaintiffs' proposed class and issued a preliminary injunction. Gonzales v. DHS, 239 F.R.D. 620, 627, 629 (W.D.Wash.2006).

The government filed an interlocutory appeal, and in Duran Gonzales I, we held that, pursuant to the Supreme Court's decision in Brand X, 545 U.S. at 981–85, 125 S.Ct. 2688, we were compelled to follow the BIA's 2006 opinion in Torres–Garcia. In Brand X, the Supreme Court “held that the circuit court must apply Chevron deference to an agency's interpretation of a statute regardless of the circuit court's contrary precedent, provided that the court's earlier precedent was an interpretation of a statutory ambiguity.” Duran Gonzales I, 508 F.3d at 1235–36 (citing Brand X, 545 U.S. at 980–82, 125 S.Ct. 2688). In our 2007 opinion in Duran Gonzales I, we held that because the BIA's Torres–Garcia ruling was a “clearly reasonable” interpretation of a statute by the agency charged with interpreting and enforcing the statute, and because our prior opinion in Perez–Gonzalez was based on the statute's ambiguity, Brand X required that we defer to the BIA's interpretation. Id. at 1237–39, 1242. Our opinion stated that, “[p]ursuant to In re Torres–Garcia,plaintiffs as a matter of law are not eligible to adjust their status because they are ineligible to receive I–212 waivers.” Id. at 1242. Accordingly, we vacated the...