Jose Lemus v. Loretta E. Lynch

In Holder v. Martinez Gutierrez, 566 U.S. 583 , 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…