Francisco Garfias-Rodriguez v. Eric Holder, Jr., 2012 U.S. App. LEXIS 21871

Garfias-Rodriguez, a Mexican national, entered and re-entered the U.S. unlawfully in 1996 and 2001; he married a U.S. citizen in 2002 and applied for adjustment of status under 245(i) in 2002.
In 2004, an NTA charged Garfias with removability under 212(a)(6)(A) and 212(a)(9)(C); he conceded removability and sought adjustment or voluntary departure.
The BIA in 2009 dismissed his appeal, citing In re Briones and the Ninth Circuit precedent, remanding for reconsideration.
The Ninth Circuit had previously held Acosta (2006) that inadmissible aliens under 212(a)(9)(C)(i)(I) could adjust under 245(i), but Briones (2007) rejected Acosta and held such aliens cannot adjust absent a waiver of inadmissibility.
On review, the court (en banc) deferred to the BIA’s Briones interpretation under Brand X and overruled Acosta to the extent inconsistent with Briones, applying the Briones rule retroactively to Garfias.
The court also addressed the retroactivity framework (Montgomery Ward) and concluded the Briones rule applies retroactively to Garfias; it upheld 8 C.F.R. § 1240.26’s automatic termination of voluntary departure upon filing a petition for review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Briones is entitled to Chevron deference for §212(a)(9)(C)(i)(I) vs. §245(i).	Garfias argues Acosta remains controlling; Briones should not control retroactively.	BIA’s Briones is a reasonable interpretation and entitled to Chevron deference.	Briones is entitled to Chevron deference; aliens inadmissible under §212(a)(9)(C)(i)(I) cannot seek §245(i) adjustment.
Retroactivity of Briones under Brand X/Chevron framework.	Retroactivity should be determined in light of Garfias’s reliance and timing.	Agency interpretation should govern retroactivity under Brand X; Montgomery Ward framework applies.	Briones applies retroactively to Garfias under the Montgomery Ward framework as refined by Brand X.
Authority of 8 C.F.R. § 1240.26 to terminate voluntary departure upon petition for review.	Regulation violates statutory design and equitable interests of noncitizens.	Regulation valid, within AG's discretion to limit eligibility and terminate grants.	Regulation is valid; voluntary departure terminated upon filing petition for review.
Whether the retroactivity analysis should be Chevron Oil or Montgomery Ward in Brand X context.	Chevron Oil should govern as proper retroactivity framework.	Montgomery Ward is more appropriate given agency adjudication context.	Court adopts Montgomery Ward approach for Brand X context in applying Briones retroactively.

National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967 (U.S. 2005) (defers to agency interpretations to fill statutory gaps)
Brand X (same as above), 545 U.S. 967 (U.S. 2005) (central to Brand X/Chevron framework)
Perez-Gonzalez v. Gonzales, 379 F.3d 783 (9th Cir. 2004) (rejected informal INS guidance; discussed deference to agency vs regulations)
Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) (held inadmissibles under 212(a)(9)(C) could adjust under 245(i) (overruled))
Duran Gonzales v. Dep’t of Homeland Sec. (Duran Gonzales I), 508 F.3d 1227 (9th Cir. 2007) (deferred to BIA Torres-Garcia interpretation; overruled Perez-Gonzalez)
Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982) (five-factor retroactivity test for agency adjudications)
Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc; discusses Chevron Oil and Brand X interplay)
Harper v. Va. Dept. of Taxation, 509 U.S. 86 (U.S. 1993) (retroactivity presumption in civil cases)
Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (retrospective effect considerations)
Perez-Gonzalez v. Gonzales (dissent context), 403 F.3d 1116 (9th Cir. 2005) (dissent on Chevron deference/retroactivity)