Francisco Garfias-Rodriguez v. Eric Holder, Jr.

Opinion by Judge BYBEE;

Concurrence by Chief Judge KOZINSKI; Concurrence by Judge GOULD; Partial Concurrence and Partial Dissent by Judge GRABER; Dissent by Judge REINHARDT; Dissent by Judge PAEZ.

OPINION

In National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court instructed federal courts to defer to reasonable agency interpretations of ambiguous statutes, even when those interpretations conflict with the prior holding of a federal circuit court. 545 U.S. 967, 982-83 , 125 S.Ct. 2688 , 162 L.Ed.2d 820 (2005). That is the situation we confront here. In Acosta v. Gonzales, 439 F.3d 550, 553-56 (9th Cir.2006), we held that aliens who are inadmissible under § 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182 (a)(9)(C)(i)(I), are eligible for adjustment of status under INA § 245(i), 8 U.S.C. § 1255 (i), in spite of the latter section’s requirement of admissibility. A year later, the Board of Immigration Appeals (“BIA”) decided that such aliens are not eligible to apply for adjustment of status under § 245(i) in In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007). In this case, we must decide whether to defer to the…

concurring:

I concur in the outcome of the majority opinion, and could join most of its analysis except for its decision in part III.B.3 to apply the test from Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982) for when agency decision should be applied retroactively. I also agree with most of the reasoning in the dissent of Judge Paez as to why the retroactivity test of Chevron Oil v. Huson, 404 U.S. 97 , 92 S.Ct. 349 , 30 L.Ed.2d 296 (1971) should be applied rather than Montgomery Ward. But I part company with Judge Paez’s dissent as to its application of the Chevron Oil standard.

I would apply the three-factor test for retroactivity set forth in Chevron Oil to conclude that the rule of In re Briones, 24 I. & N. Dec. 355 (BIA 2007), that we adopt today, should be applied retroactively. We have said that we must apply the Chevron Oil test where “we announce a new rule of law that does not concern our jurisdiction.” Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir.2011) (en banc) (emphasis added). Even though we now change our interpre *533 tation of the interplay between §§ 1182(a)(9)(G)(i)(I) and 1255® because the Supreme Court, in National Cable &…

concurring in part and dissenting in part:

I join Parts III-A and III-B of the majority opinion. It is a close question whether Chevron Oil Co. v. Huson, 404 U.S. 97 , 92 S.Ct. 349 , 30 L.Ed.2d 296 (1971), or Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir.1982), provides the better framework for deciding the retroactivity issue when both an agency and a court (deferring to the agency’s interpretation) change their construction of an ambiguous statute. Even if the Chevron Oil test applied here, however, I agree with Judge Gould’s analysis of it. That is, under either framework, retroactive application of the new legal rule is appropriate.

I also join Part II of Judge Reinhardt’s dissent, which concludes that 8 C.F.R. § 1240.26 (i) exceeds the Attorney General’s statutory authority.

dissenting:

I join in Judge Paez’s dissent, which ably explains why the Chevron Oil test should guide our analysis regarding the adjustment of status issue, and why today’s holding in that regard should apply prospectively only.

I write separately to express my disagreement with the majority’s decision, in Part III(C) of its opinion, to uphold the Attorney General’s regulation automatically terminating voluntary departure in the event that a non-citizen has the temerity to file a petition for review of the BIA’s decision on the underlying issue with the court of appeals. 8 C.F.R. § 1240.26 (f). The Attorney General’s regulation effectively penalizes non-citizens for exercising a fundamental right in the American legal system: the right to judicial review of executive action. The regulation is incompatible with the statutory scheme establishing voluntary departure and thus an improper exercise of the powers delegated to the Attorney General. The majority’s decision to uphold the regulation is not only erroneous as a matter of law, but also, ultimately, renders our justice system less worthy of its name.

I.

“The very essence of civil liberty certainly consists in the right of…

dissenting:

I respectfully dissent. I agree with the en banc panel majority’s conclusion in Part *545 111(A) that the Board of Immigration Appeals’s (“BIA”) decision in In re Briones, 24 I. & N. Dec. 355 (BIA 2007), is entitled to Chevron deference. I part company with the majority in its analysis of whether our holding to defer to Briones should be applied retroactively. The majority contends that, in light of the deference we owe agency decisions under National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 , 125 S.Ct. 2688 , 162 L.Ed.2d 820 (2005), “it is not clear whether we, as a judicial decisionmaker, have changed the law, or whether it is the agency that has changed the law.” 1 Maj. Op. at 514. I do not agree. I therefore dissent from the analysis and conclusions contained in Parts 111(B)(3) and (4) of the majority opinion.

Brand X makes it clear that an agency cannot overrule a judicial decision, and that a court’s first-in-time interpretation of an ambiguous statute is binding unless and until that court issues a judicial decision changing its rule of law in deference to an agency’s permissible, alternative interpretation. Brand X,…

I. FACTS AND PROCEDURAL HISTORY

Francisco Javier Garfias-Rodriguez (“Garfias”) is a native and citizen of Mexico. He unlawfully entered the United States in 1996 and briefly departed twice, first to visit his ail- ing mother in 1999 and then to attend her funeral in 2001. He reentered the United States without permission both times. In April 2001, Garfias’s then-current employer filed an applica- tion for labor certification with the Oregon Employment Department on his behalf but later withdrew the application after he ceased working for that employer. Garfias married his wife Nancy, a United States citizen, in April 2002. He applied to adjust his status to that of a lawful permanent resident in June of 2002, paying a total of $1305 in fees. In 2004, United States Citizenship and Immigration Services issued Garfias a Notice to Appear (“NTA”) charging him with removability under INA § 212(a)(6)(A)(i), as “[a]n alien present in the United States without being admitted or paroled,” and § 212(a)(9)(C)(i), as an alien who has been “unlawfully pres- GARFIAS-RODRIGUEZ v. HOLDER 12589 ent in the United States for an aggregate period” of more than one year and…