Caritina Diaz-Castaneda v. Eric Holder, Jr.

FILED

NOT FOR PUBLICATION SEP 19 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARITINA DIAZ-CASTANEDA and No. 10-70633

PORFIRIO LOPEZ-LOPEZ,

Agency Nos. A078-740-900 Petitioners, A078-740-903

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted September 19, 2013** Portland, Oregon

Before: PREGERSON and WARDLAW, Circuit Judges, and SEDWICK, District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 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 John W. Sedwick, District Judge for the U.S. District Court for Alaska, Anchorage, sitting by designation. Caritina Diaz-Castaneda (Diaz) and Porfirio Lopez-Lopez (Lopez)

(collectively Petitioners), husband and wife and natives and citizens of Mexico,

appeal the Board of Immigration Appeals’s (BIA)…

dissenting:

I dissent. Here, unlike in Garfias-Rodriguez, the Montgomery Ward retroactivity analysis does not support applying Briones. The second, third and fourth factors all weigh heavily in favor of Petitioners.

Given the specific facts and timing of this case, the second and third Montgomery Ward factors weigh in favor of Petitioners. Unlike in Garfias-Rodriguez, Petitioners here in their motion to reopen their case specifically relied on Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004), which holds that INA § 212(a)(9)(C)(i)(II) does not bar adjustment of status under INA § 245(i). Further, the Immigration Judge was prepared to grant the Petitioners adjustment in a hearing on January 10, 2008. By the time the case was remanded to the IJ following his erroneous application of the fugitive entitlement doctrine, however, the Ninth Circuit had overruled Perez-Gonzalez . Accordingly, the IJ determined that Petitioners were no longer eligible for adjustment under § 245(i).

Moreover, the fourth factor also weighs in favor of Petitioners. As the majority points out, deportation is a significant burden here, as it was in Garfias-Rodriguez. But here, the burden is even…

MEMORANDUM ***

Caritina Diaz-Castaneda (Diaz) and Porfirio Lopez-Lopez (Lopez) (collectively Petitioners), husband and wife and natives and citizens of Mexico, appeal the Board of Immigration Appeals’s (BIA) published decision affirming an Immigration Judge’s (IJ) denial of their applications for adjustment of status under INA § 245(i), 8 U.S.C. § 1255®. We have ju *633 risdiction under 8 U.S.C. § 1252 , and we deny the petition for review.

The BIA’s published decision concludes that Petitioners are ineligible to adjust status under INA § 245(i) because both are inadmissible under INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182 (a)(9)(C)(i)(I). Matter of Diaz-Castaneda, 25 I. & N. Dec. 188 (BIA 2010). This subsection of the INA renders inadmissible any alien who is unlawfully present in the United States for an aggregate period of more than one year, departs the United States, and subsequently reenters the country without authorization. Petitioners argue for application of our prior decision in Acosta v. Gonzales, 489 F.3d 550 (9th Cir.2006), which held that aliens who are inadmissible under INA § 212(a)(9)(C)(i)(I) are nevertheless eligible to adjust under INA § 245(i).

We have…