Aurelio Duran Gonzalez v. U.S. Department of Homeland Se

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The opinion filed on October 25, 2011, 659 F.3d 930 , is withdrawn.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

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 1-212 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…

dissenting.

In 2007, we held that petitioners “as a matter of law are not eligible to adjust their status because they are ineligible to receive 1-212 waivers.” Duran Gonzales v. DHS, 508 F.3d 1227, 1242 (9th Cir.2007) (“Duran Gonzales /”). In January 2009, we denied petitioners’ request for rehearing and rehearing en banc, which included an argument that our opinion should not be applied retroactively; our mandate issued on January 23, 2009. In October 2011, we issued an opinion reiterating that Duran Gonzales I had full retroactive effect, Duran Gonzales v. DHS, 659 F.3d 930 (9th Cir.2011), and petitioners filed a petition for rehearing and rehearing en banc. Thereafter, in October 2012, we issued an en banc opinion in Garfias-Rodriguez, 702 F.3d 504 (9th Cir.2012), adopting a new rule for retroactivity in certain cases. I respectfully disagree with my colleagues that our adoption of a new rule in 2012 in an unrelated case changes the retroactivity of our 2007 opinion. Rather, I would hold that under the prudential law-of-the-case doctrine, Duran Gonzales I remains retroactive and applicable to the petitioners.

I

The prudential law-of-the-case doctrine precludes one panel of…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AURELIO DURAN GONZALES; MARIA No. 09-35174

C. ESTRADA ; MARIA LUISA

MARTINEZ DE MUNGUIA ; IRMA D.C. No. PALACIOS DE BANUELOS; LUCIA 2:06-cv-01411-

MUNIZ DE ANDRADE; KARINA MJP

NORIS; ADRIANA POUPARINA ,

Plaintiffs-Appellants,

ORDER AND

v. OPINION

U.S. DEPARTMENT OF HOMELAND

SECURITY and JANET NAPOLITANO , Secretary of the Department of Homeland Security, Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, Chief District Judge, Presiding

Argued and Submitted September 21, 2011—San Francisco, California

Filed March 29, 2013

Before: William C. Canby, Jr., Barry G. Silverman, and Consuelo M. Callahan, Circuit Judges. GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

Order; Opinion by Judge Silverman; Dissent by Judge Callahan

SUMMARY*

Immigration

The panel ordered withdrawn its original October 25, 2011 opinion, published at 659 F.3d 930, and filed a superseding opinion and a new dissent, in plaintiffs’ appeal of the district court’s dismissal of…