Gilberto Acosta-Olivarria v. Loretta E. Lynch

I. Facts

Gilberto Acosta-Olivarria, a native and citizen of Mexico, entered the United States in 1995 and took up residence in Arizona with his wife and child. His wife is a lawful permanent resident and two of his now-three children are United States citizens. Between 1995 and 2005, Acosta-Olivarria made multiple trips to and from Mexico. During that period, he was unlawfully present in the United States for a total of over one year, and he reentered the country without being admitted at least once. In 2006, he was arrested for illegal entry and was placed in removal proceedings. While in removal proceedings, Acosta-Olivarria applied for adjustment of status pursuant to 8 U.S.C. § 1255(i) and paid the required $1,000 fee. At the time, our precedent had interpreted § 1255(i) as allowing individuals who had been unlawfully present in the United States for more than a year, but who were eligible for a visa, to apply for an adjustment of status to become lawful permanent residents.

ACOSTA-OLIVARRIA V. LYNCH

See Acosta v. Gonzales, 439 F.3d 550, 556 (9th Cir. 2006), overruled by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).…

Opinion by Judge FRIEDLAND; Dissent by Judge RICE.

OPINION

In Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir.2012) (en banc), we reserved the question whether a noncitizen applying for adjustment of immigration status could reasonably rely on an opinion of this court during a period in which the Board of Immigration Appeals (“BIA”) had issued a decision that was in tension with our opinion but before the BIA issued a decision directly disagreeing with our opinion. See id. at 522 . We now answer that question with respect to Petitioner Acosta-Olivarria and hold that he reasonably relied on the law of this circuit when he applied for adjustment of status during that period.

I. Facts

Gilberto Acosta-Olivarria, a native and citizen of Mexico, entered the United States in 1995 and took up residence in Arizona with his wife and child. His wife is a lawful permanent resident and two of *1273 his now-three children are United States citizens.

Between 1995 and 2005, Acosta-Olivarria made multiple trips to and from Mexico. During that period, he was unlawfully present in the United States for a total of over one year, and he reentered the country without being admitted at least…

dissenting:

I respectfully dissent. On balance, the Montgomery Ward factors do not weigh in favor of departing from the general principles of retroactivity. Applying In re Briones, 24 I. & N. Dec. 355 (BIA 2007), the BIA properly found Acosta-Olivarria *1278 inadmissible under 8 U.S.C. § 1182 (a)(9)(C)(i)(I) and thus ineligible for adjustment of status under 8 U.S.C. § 1255 (0.

As an initial matter, it is important to recognize “[t]he general rule ... that an appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 , 89 S.Ct. 518 , 21 L.Ed.2d 474 (1969); see also id. at 282 , 89 S.Ct. 518 (quoting Justice Marshall’s explanation of the rule, delivered 150 years earlier in United States v. Schooner Peggy, 5 U.S. 103, 110 , 1 Cranch 103 , 2 L.Ed. 49 (1801)). This rule “applies with equal force where the change is made by an administrative agency acting pursuant to legislative authorization.” Id. at 282, 89 S.Ct. 518 . Only when application of a new rule would work a “manifest injustice” may the court withhold retrospective application. Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d 1074 , 1081…