Gilberto Acosta-Olivarria v. Loretta E. Lynch, 2015 U.S. App. LEXIS 15065

Petitioner Gilberto Acosta-Olivarria, a Mexican national, entered the U.S. in 1995, accrued over one year of unlawful presence, reentered without admission, and was placed in removal proceedings in 2006.
He applied for adjustment of status under 8 U.S.C. § 1255(i) in July 2006, paying the $1,000 fee; at that time Ninth Circuit precedent (Acosta) permitted such applications despite inadmissibility under the one-year bar, § 1182(a)(9)(C)(i)(I).
An IJ granted adjustment relying on Acosta; DHS appealed. Before the BIA decided the appeal, the BIA issued In re Briones holding the one-year bar precludes § 1255(i) relief, and remanded the case.
On remand the IJ denied adjustment under Briones; the BIA affirmed. Acosta-Olivarria petitioned for review in the Ninth Circuit, arguing Briones should not be applied retroactively to bar his pre‑Briones application.
The Ninth Circuit applied the Montgomery Ward five‑factor retroactivity test and focused on whether reliance on Ninth Circuit precedent (Acosta) during the gap before Briones was reasonable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA's Briones should be applied retroactively to deny Acosta‑Olivarria’s pre‑Briones § 1255(i) application	Acosta relied reasonably on Ninth Circuit precedent (Acosta); retroactive application would deprive him of adjustment, fee, and caused him to forgo voluntary departure — so Briones should not apply retroactively	Government: Reliance was unreasonable because the BIA had already signaled the contrary view (Torres‑Garcia) and circuit law was unsettled; retroactivity is appropriate	The court held Briones should not be applied retroactively to Acosta‑Olivarria and remanded to reinstate the IJ’s 2006 grant of adjustment of status
Whether reliance on Acosta was objectively reasonable during the period between Acosta and Briones	Reliance was reasonable because Acosta directly addressed the one‑year bar, was published Ninth Circuit precedent, and there was no BIA decision interpreting the one‑year bar until Briones	Govt: Reasonable reliance was impossible because Torres‑Garcia (addressing the related removal‑order bar) showed the BIA rejected the circuit’s approach and the law was rapidly shifting	The court found reliance reasonable: Acosta addressed the precise question, no BIA decision had ruled on the one‑year bar before Briones, and reliance and the hardship from retroactivity outweighed uniformity interests

Garfias‑Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) (adopted Montgomery Ward retroactivity framework for BIA adjudications)
Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) (held § 1255(i) available despite one‑year inadmissibility)
Perez‑Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004) (addressed adjustment eligibility despite removal‑order inadmissibility)
Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227 (9th Cir. 2007) (applied Brand X deference to adopt BIA interpretations)
Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982) (five‑factor test for retroactivity)
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Supreme Court rule on when agency interpretations can displace prior court constructions)
Thorpe v. Housing Auth. of Durham, 393 U.S. 268 (1969) (general rule that courts apply the law in effect when decision is rendered)