Gilberto Acosta-Olivarria v. Loretta E. Lynch

therefore reverse the district court’s We granting summary judgment

order to Bar- boza, and remand with instructions to

grant summary the defendants’ motion for judgment on this issue.7 PART,

AFFIRMED IN REVERSED PART, IN AND REMANDED. ACOSTA-OLIVARRIA,

Gilberto

Petitioner, LYNCH, Attorney Loretta E. General, Respondent.

No. 10-70902. Appeals, United States Court of Ninth Circuit. Argued May and Submitted 2015. Aug. Filed assets, 2520.104-26(b). explained paid ries.” As are for out of CAPF’s supra, plan the Plan is a welfare benefit part membership which are derived in 1002(1)(A) plan 29 U.S.C. because it is a dues, to covered Plan and their ben- members purpose providing established "for eficiaries. participants long- its or their beneficiaries” benefits; disability by term it is maintained ap- party Each shall bear its own on costs CAPF, employee organization as defined peal. 1002(4); 29 U.S.C. and these benefits General, McKay, Assistant Attorney Leslie Director, Litigation, Immigration of Office Justice, Division, Department of Civil D.C., Respondent. Washington, BEAT. Before: CARLOS FRIEDLAND, T. Circuit MICHELLE RICE,* District Judges and THOMAS Judge. FRIEDLAND; by Judge

Opinion by Judge RICE. Dissent OPINION

FRIEDLAND, Judge: Circuit Holder, 702 Garfias-Rodriguez (en (9th Cir.2012) banc), we re

F.3d 504 question whether a noncitizen served of rely reasonably opinion status could on during period this court in which the (“BIA”) Immigration Appeals Board of had issued a decision that was in tension before the BIA issued opinion with our but directly our disagreeing a decision with now answer opinion. See id. 522. We question respect that Petitioner he reason Acosta-Olivarria hold that ably this circuit when relied on the law of during he period. I. Facts Gary Gary (argued), Finn Law Office of Finn, Indio, CA, for Petitioner. Acosta-Olivarria, Gilberto a native and Mexico, citizen of entered the United

Yedidya Margot L. (argued), Cohen up in 1995 and took residence States Carter, Frayer, and Allison Trial Attor- Arizona with his wife and child. His wife Mizer, neys, Benjamin Acting Assistant C. General, West, Attorney Tony permanent Assistant is a resident and two lawful * Rice, Washington, sitting by designation. The Honorable Thomas O. United States Judge District of District for the Eastern children are United States went on to consider the merits of the his now-three citizens. granted discretionary re- lief. 2005, Acosta-Olivar- Between 1995 and to and from Mexi- multiple trips

ria made Department Security Homeland unlawfully he was During period, co. appealed the IJ’s decision. Before the for a total of present in the United States BIA appeal, panel ruled on the a BIA the coun- year, over one and he reentered Briones, a published opinion, issued In re try being admitted at least once. without (B.I.A.2007), 24 I. & N. Dec. 355 which 2006, illegal entry In he arrested for was it held an alien who is inadmissible proceedings. placed and was removal 1182(a)(9)(C)(i)(I) § eligible under is not proceedings, in removal Acosta- While 1255(i). adjustment § for of status under adjustment applied Olivarria for Briones, See 24 I. & N. Dec. at 371. 1255(i) § pursuant paid to 8 U.S.C. and the Briones, Based on the BIA remanded time, $1,000 required fee. At our case to fur- Acosta-Olivarria’s the IJ for 1255(i) § precedent interpreted had as al- ther proceedings. lowing unlawfully who had been individuals remand, On the IJ Briones and in the for more present United States than denied Acosta-Olivarria’s for visa, year, eligible but for a to who were adjustment of status. Acosta-Olivarria apply for an of status to be- decision, appealed agreed but the BIA permanent come lawful residents. See that Briones controlled. Acosta-Olivarria (9th Gonzales, 550, Acosta v. 556 timely petition filed a for of the review Cir.2006), by Garfias-Rodriguez overruled BIA’s decision. (9th Cir.2012) (en Holder, v. 702 F.3d 504 banc). eligible Acosta-Olivarria was for a II. Legal Background petition visa because of a that his wife had permanent-resident filed on her sta based 1255(i) § Tension 8 between U.S.C. and 8 tus. 1182(a)(9)(C)(i)2 § U.S.C. 2006, In December 1994, Congress path In created a (“IJ”) judge considered Acosta-Olivarria’s legal for had en- status noncitizens who application. Although Acosta-Olivarria inspection tered the United States without was “inadmissible” because he had been eligible but were nonetheless for a visa. unlawfully present the United States Commerce, Justice, Departments See year more than one and reentered without State, Judiciary, and Related admitted, being 8 U.S.C. Act, 1995, Agencies Appropriations Pub.L. 1182(a)(9)(C)(i)(I), § that he the IJ held 103-317, 506(b), § No. 108 Stat. adjustment of eligible was nonetheless (1994) (codified as amended at 8 1765-66 so, doing status. In the IJ relied on our 1255(i)). § To for this qualify type U.S.C. Acosta, court’s decision in which allowed relief, noncitizens must be “admissible” 1255(i) § noncitizens to seek relief under 1255(i)(2)(A). § permanent residence. under despite being inadmissible Illegal Im- Congress When enacted the 1182(a)(9)(C)(i)(I).1 Acosta, § 439 See migration Immigrant Respon- Reform his status as inad- F.3d 556. Because (“IIRIRA”), sibility Act of 1996 it created application, missible did not bar his IJ 1182(a)(9)(C)(i) summary legal background § 2. A fuller of this is 1. Title 8 U.S.C. is codi- Holder, Immigration Nationality provided Garfias-Rodriguez fication v. 702 ("INA”) 212(a)(9)(C)(i). § (9th Cir.2012) (en banc). Act Tifie 8 U.S.C. F.3d 509-12 245(i). 1255(i) § codification of INA 1274 BIA’s month after the Less than one who were of noncitizens categories

new Torres-Garcia, we addressed IIRIRA, No. Pub.L. decision inadmissible. See 302(b)(1), respect to C., corresponding question 110 Stat. 104-208, Div. one-year to -578. Section bar. 3009-546, inadmissibility under the 3009-576 1182(a)(9)(C)(i)(I) Gonzales, refer to we will F.3d 550 Cir. v. —which noncitizens “one-year 2006), Garfias-Rodriguez bar” —makes as the overruled “unlawfully (en (9th Cir.2012) been they if have inadmissible aggre- for an in the States United present banc), to hold relied on Perez-Gonzalez we year.” Section more gate period of than under inadmissible that noncitizens 1182(a)(9)(C)(i)(II) we will refer precluded from one-year bar were not —which noncit- bar” —makes “removal-order as the status seeking they if have been or- izens inadmissible 1255(i). Acosta, F.3d at 553-56. States. from United dered removed in did not acknowl decision Acosta Our hap- should specify what Congress did not in the BIA’s decision Torres-Garcia. edge who are inadmissible noncitizens pen when months after our decision Twenty-one adjust- apply for provision under either Acosta, BIA whether noncit- addressed 1255(i). § of status under ment one-year bar inadmissible under the izens Weigh BIA Ninth and the The Circuit adjustment of seeking from prohibited are Ashcroft, v. 379 F.3d In Perez-Gonzalez 1255(i). Again, the BIA status under (9th Cir.2004), overruled Gonzales 783 Briones, 24 I. us. In In re disagreed with Sec., Dep’t Homeland (B.I.A.2007), the BIA held & N. Dec. 355 (9th Cir.2007), we held that noncitizens one-year inadmissibility under the bar de- for apply could obtaining a noncitizen from ad- prevents under the remov- spite being inadmissible 1255(i). justment of status under See at 792-95. We held that al-order bar. Id. Briones, 24 I. & N. Dec. at 370. inadmissibility pro- under that interpreting with the presented we next were When adjustment of status a bar to vision as and Acos questions Perez-Gonzalez im- regulations certain conflict with would ta, deci Supreme we Court’s Immigration and Nationali- plementing X3 to the BIA’s sion in Brand and deferred illogical results. See id. ty Act and lead to in Torres-Garcia interpretations at 793-94. Thus, Briones, them as our own. adopting disagreed. published BIA In a Gonzales, that our decision in we held Torres-Garcia, I. In re 23 & opinion, N. longer was no valid Perez-Gonzalez (B.I.A.2006), rejected BIA Dec. 866 Gonzales, 508 light of Torres-Garcia. See interpretation Perez-Gonzalez’s at And F.3d 1235-42. Garfias-Rodri Torres-Garcia, I. & regulations. See Acosta because of the guez, we overruled Accordingly, at it held N. Dec. 874-75. in Briones. See BIA’s decision Garfias- inadmissibility under the removal-or- at Rodriguez, 702 F.3d 512-14. precluded noncitizens from obtain- der bar Retroactivity 1255(i). ing adjustment of status under adop nor our Torres-Garcia, Neither Briones I. & N. Dec. at See Garfias-Rodriguez of the BIA’s tion only prior if the court deci- v. Brand Chevron deference 3. See Nat’l Cable & Telecomms. Ass'n Servs., 967, 982, X Internet 545 U.S. 125 S.Ct. follows from sion holds that its construction (2005) ("A 162 L.Ed.2d 820 court's unambiguous terms of the statute trumps prior judicial construction of a statute discretion.”). agency room for thus leaves no agency entitled to an construction otherwise from Briones ends the anal- The First Factor: interpretation Whether the Issue Is as Acosta-Olivar- ysis petitioners, such Impression One of First ria, adjust- their applications who filed As we recognized Garfias-Rod BIA ment of status before the decided riguez v. 702 F.3d 504 Cir. In Garfias-Rodriguez, Briones. we held 2012) (en banc), the first factor was devel applies that to determine whether Briones oped in the context of private-party litiga retroactively particular applicant to a tion before the National Labor Relations status, apply we the test set (“NLRB”) Board and is not well suited for Co., Montgomery forth in Ward & Inc. v. immigration rulings. id. at See 520-21. Commission, Federal Trade 691 F.2d 1322 context, In the NLRB this factor is meant (9th Cir.1982). See to ensure that the party responsible for a at Montgomery 517-18. Ward’s change in law receives the benefits of the balancing requires five-factor test that we new rule. Id. at 520. In the consider: context, in which government always (1) particular whether the case is one of party, this concern is less relevant. (2) impression, first whether the new Accordingly, this factor does not represents abrupt departure rule weigh in either purposes direction for practice merely from well established or determining apply the rule attempts to fill a void in an unsettled retroactively. from Briones (3) law, area of the extent to which the

party against whom rule ap- the new is The Second and Third Factors: Whether (4) rule, plied relied on the former the Represents Abrupt Rule New an De- degree of the burden which a retroactive parture and the Extent of the Petition- (5) imposes party, order on a er’s Reasonable Reliance on the Former statutory interest in a new rule Rule despite party the reliance of a on the old

standard. Montgomery second and third (quot “closely 702 F.3d at Ward factors are intertwined.” 1333). Ward, ing Montgomery 691 F.2d at “If a Garfias-Rodriguez, 702 F.3d at 521. Because the test that requires a court look abrupt departure ‘represents new rule reliance, at an individual’s own this retro- practice,’ party’s a well established analysis activity applied case-by- “on a prior likely reliance on the rule is to be 519; case basis.” Id. at see also id. at 523 reasonable, ‘merely whereas if the rule (“We express opinion n. 13 no attempts to fill a in an unsettled area void may applicants other the retroactive qvoid law,’ likely reliance is less to be reason Briones.”). effect of able.”

III. Discussion applied adjustment Acosta-Olivarria for time, July in At the our of status Applying the Montgomery Ward Gonzales, decision in Acosta v. retroactivity analysis to Acosta-Olivarria’s (9th Cir.2006), overruled case,4we hold that the BIA’s decision in In Garfias- 504, (B.I.A. Rodriguez, 702 F.3d held that nonciti- Briones, re 24 I. & N. Dec. 355 position apply could to become 2007), zens his apply retroactively does not to bar residents, 556, at application. permanent his lawful see id. Although special expertise regarding retroactivity. See the BIA did not rule on the retro- 504, activity question, may we address it in the Garfias-Rodriguez v. parties supple- Cir.2012) banc). first instance. The have filed (en 514-15 issue, mental briefs on the and the BIA has no noncitizens should have enabled yet not issued its con- Garcia BIA had and the predict to trary decision Briones. such as Acosta-Olivarria would not survive. that he relied argues Acosta-Olivarria ways. in two in Acosta on our decision for disagree. It was reasonable We First, adjust- for application he filed his rely our decision in Acosta-Olivarria to on status, along correspond- ment of with adjust- for Acosta. At the time he fee, $1,000 a time when the law ing status, published opinion of this ment apply noncitizens to our circuit allowed position noncitizens in his court allowed status under 8 U.S.C. adjustment of adjustment despite be- apply for despite being inadmissible 1255© inadmissible, no con- ing and there was (8 one-year bar U.S.C. one- trary interpreting BIA decision 1182(a)(9)(C)(i)(I)). Indeed, granting yet had not been year bar because Briones status, the IJ request his rule, legal announce a decided. When we holding specifically relied on Acosta courts, only for the benefit of we do so not eligible for un- Acosta-Olivarria was relief but also for benefit 1255®, despite being inadmissible der within the Ninth Circuit public. People one-year ap- bar. Retroactive under the rely opinions on our should be able to plication of the rule from Briones would making Bancorp decisions. See U.S. application for ad- cause Acosta-Olivarria’s denied, P’ship, 513 justment Mortg. of status to be without Co. v. Bonner Mall $1,000 Second, 386, refund of the fee. U.S. 115 S.Ct. 130 L.Ed.2d 233 gave up opportunity (“Judicial (1994) Acosta-Olivarria precedents presump- are voluntarily depart the United States tively legal correct and valuable to the ten-year start a clock after which he could whole.”). community as a sought have admission. Had he voluntari- this, we noted in Consistent Garfi ly departed staying in 2006 instead of “might that reliance have as-Rodriguez of sta- filing his if petitioner ap been reasonable” had tus, would have been able Acosta-Olivarria period within the 21-month between plied starting to seek admission 2016.5 decision in Acosta and the this court’s government does not contest that in Briones. BIA’s decision Garfias-Rodr subjectively Acosta-Olivarria relied on There, reject at 522. we iguez, 702 F.3d Rather, it that Acosta. contends no one argu petitioner’s particular ed the reliance applied adjustment for who be application he had filed his ment because our decision in Acosta and the BIA’s tween Ashcroft, 379 before Perez-Gonzalez v. reasonably decision in Briones could have (9th Cir.2004), or Acosta had F.3d relied on Acosta because the BIA’s deci Garfias-Rodriguez, 702 been decided. See Torres-Garcia, in In I. sion re 23 & N. petitioner in F.3d at 522. The (B.I.A.2006), Dec. held that inadmissi Garfias Rodriguez not have taken ac could bility pre under the removal-order bar tions in reliance on an earlier rule of law the noncitizen from for cludes there no such 1255(i). from our court because was adjustment § of status under See Torres-Garcia, But that not true of Acos 870-71, earlier rule. 28 I. & N. Dec. at view, government’s In the Torres- ta-Olivarria. years, may apply inadmissibility he or she for admission 5. The bars 8 U.S.C. 1182(a)(9)(C)(i)(I) (II) subject being subject are See without to the two bars. exception: relevant if the noncitizen has been 1182(a)(9)(C)(ii). of the for more than ten outside United States argues government retroactively that the from Briones doing The dissent because that Acosta-Olivarria could not is correct substantially so would burden Acosta-Oli- Acosta, relied on because the land- have varria. See Garfias-Rodriguez, 702 F.3d on this issue scape of the law was at (“[DJeportation alone is a substan- rapidly. particular, Perez- changing weighs against tial burden that retroactive Gonzalez, inadmissibility which held that application agency adjudication.”). of an pre- under the removal-order bar did not Briones, BIA applied Before the the IJ adjustment status, applications clude of had granted application Acosta-Olivarria’s question by had been drawn into the BIA’s of status and thus allowed decision in Torres-Garcia the time him to remain in the United States with application. Acosta-Olivarria filed his family. his If the applied Briones rule is however, argument, This conflates the two retroactively, deportation. he will face 1182(a)(9)(C)(i). admissibility §in bars to Applying The Fifth Factor: Interest Perez-Gonzalez and Torres-Garcia were Consistently Rule New about the effect the removal-order bar. recognized Garfias-Rodriguez We Perez-Gonzalez, 792-95; See 379 F.3d at that Torres-Garcia, application retroactive of the rule 23 I. & N. Dec. helps uniformity Briones ensure Acosta-Olivarria was inadmissible under At one-year applied application immigration bar. the time he of the laws. status, that, was the emphasized But we because the new jurisdiction only decision this on the rule in Briones not does follow from the one-year interaction between the bar and statute, plain language of the this factor sought. argues the relief he The dissent “only leans” in favor of retroactive applica-, two subsections tion. 702 F.3d at 523. 1182(a)(9)(C)(i) cannot be treated differ- * * * ently. But this would be a reason for factors, Weighing all the we hold that arguing wrongly that Acosta was decided not be retroactively Briones should X, in light of Torres-Garcia and Brand not in this case. Acosta-Olivarria’s reliance why a reason reliance on Acosta be would retroactivity interests and the burden that particularly given unreasonable — impose outweigh would on him the interest Acosta was decided after Torres-Garcia in uniform and Brand X. Our task not here is laws. grade performance our court’s in deciding

Acosta, but rather to decide it IV. Conclusion

was reasonable for Acosta-Olivarria to rely on decision. reasons, foregoing For the we GRANT the REMAND petition for review and with hold that it was reasonable for Acos-

We instructions to reinstate the IJ’s 2006 or- rely ta-Olivarria to on the law of this deciding precise granting adjustment circuit the der of legal question status. faced, so the second he and third Mont- RICE, Judge,, dissenting: District

gomery weigh against apply- factors Ward ing retroactively. Briones balance, I respectfully dissent. On the Degree The Fourth Factor: The weigh not Montgomery Ward factors do Impos- Burden That a Retroactive Order general princi- of from the departing favor Party es on a ples retroactivity. of In re Applying (BIA 2007), Briones, 24 I. & N. Dec. 355 Montgomery

The fourth factor Ward strongly against the the BIA found Acosta-Olivarria applying properly cuts rule 1278 question ... down to “boil[s] factors 8 U.S.C.

inadmissible 1182(a)(9)(C)(i)(I) equity in notions of ineligible grounded thus concerns Clark-Cowlitz, fairness,” under 8 U.S.C. F.2d at 1082 826 6, rule of retroac- 1255(0. general such that the n. application unless its tivity apply would matter, important it is to As an initial injustice. in manifest would result ... that an rule general recognize “[t]he law in ef- apply must the court appellate majority’s balancing of the I contend the its decision.” it renders fect at the time long- is no Montgomery factors here Ward Durham, 393 Hous. Auth. Thorpe v. general to the rule er tethered 518, 268, 281, 21 L.Ed.2d 474 89 S.Ct. U.S. Rather, majority’s years. the over 200 282, (1969); at 89 S.Ct. 518 also id. see the factors are divorced analysis which —in explanation of Marshall’s (quoting Justice rule and allowed to be- general from the rule, years 150 earlier delivered the in and of itself—loses come a framework Peggy, 5 U.S. States v. Schooner United guidance jurispru- centuries of sight of the (1801)). 103, 103, 110, 2 L.Ed. 49 1 Cranch this back- dence have offered. With equal force where “applies This rule with the factors. ground, analyze I will made an administrative change majority’s analysis of agree I legislative to au agency acting pursuant first, fourth, Montgomery and fifth 282, at Id. 89 S.Ct. thorization.” factors. The first factor —whether Ward of a new rule would Only when impres presents one of first issue injustice” may the court a “manifest work of either weigh sion—does not favor application. Clark- retrospective withhold ... as it is one “not well suited party FERC, Operating Agency v. Cowlitz Joint immigration the context of law.” See Gar (D.C.Cir.1987) (en 1074, F.2d 1081 826 504, 702 fias-Rodriguez v. F.3d banc) Thorpe, 393 (quoting U.S. Cir.2012). event, any 518). S.Ct. of unfairness in a new question Retail, Circuit’s Wholesale & D.C. rule, of whether it is a case of regardless NLRB, Department Store Union v. fully captured in the impression, first “is (D.C.Cir.1972) decision, from F.2d 380 Montgomery and third Ward fac second adopted which the Ninth Circuit its Mont- I Similarly, tors.” concede that framework, analytical “set gomery Ward of burden on the degree fourth factor-the forth a non-exhaustive list of five factors to Acosta-Olivarria, albeit not as alien-favors determining assist courts majority prece strongly past as the grant exception to the rule at 523. Fi dent so characterize.1 See id. application of a permitting ‘retroactive’ “points I that the fifth factor nally, agree adjudication.” agency rule enunciated in an government. See id. favor” of Clark-Cowlitz, (emphasis F.2d at 1081 “[N]on-retroactivity impairs uniformity added). exception, ac- again, Once scheme, statutory importance of a and the Court, cording Supreme is for “man- to the law is well uniformity injustice.” Thorpe, ifest 393 U.S. at non-exhaustive list of established.” Id. 89 S.Ct. 518. This rule, always consequence heart Immigration Judge, been the at the of 1. The under the old granted application system had Acosta-Olivarria’s proceedings. Our Acosta-Olivarria’s and allowed to thus him wrong justice initial does not allow an family; with remain in the United States his result, especially to dictate the final decision conversely, upholding the BIA's retroactive subject timely review that decision is to when application of Briones would cause him to by higher authority, was the case here. a as deportation. deportation face certain But has

1279 majority, seriously depart I from the the extent to which principle the new however, on the of the second serves important workaday but func- I Montgomery and third Ward factors. filling tion of in the interstices of the strongly in weigh contend these factors law.”). The D.C. Circuit offers the follow- retroactively applying favor of Briones: ing guidance to courts conducting this abrupt depar- Because Briones was not an analysis: any practice,” ture from “well established From experience our may reliance Acosta-Olivarria have [retroactivity analysis], there has reasoning had on the Ninth Circuit’s (1) emerged a basic distinction between Ashcroft, v. Perez-Gonzalez 379 F.3d 783 law, clarifications, applications new (9th Cir.2004), Gonzales, or Acosta v. 439 (2) additions, and and substitution of (9th Cir.2006), F.3d 550 cannot be consid- new reasonably law old law that was contrary, ered reasonable. To the situation, clear. the latter may which BIA’s decision Briones should have fairness, give questions rise to it may surprise no in light come as of the BIA’s necessary deny be to retroactive effect previous rejection of interpre- the Circuit’s adjudi- to a rule announced in an agency scheme, statutory tation of the which re- cation in to protect order the settled jection it in In announced re Torres-Gar- expectations of those who had relied on (BIA cia, 2006), I. prior 23 & N. Dec. 866 contrast, the preexisting By rule. retro- July to application. Acosta-Olivarria’s 2006 activity natural, in the former case is Montgomery The second and third normal, necessary, corollary a of an factors are appropriately Ward most ana- agency’s authority develop policy lyzed together. The second factor ana- through case-by-case adjudication rather lyzes a an “abrupt depar- rule is rulemaking. than ture from practice well established or FERC, Williams Nat. Gas Co. v. merely attempts to fill a void in an unset- (D.C.Cir.1993) (alterations, tled area of law.” cita- (quoting Montgomery tions, F.3d at 518 quotation Ward & and internal marks omit- FTC, ted). Inc. Co. Cir.1982)). factor, The third focusing on Importantly contrary to the ma- —and reliance, “closely the alien’s intertwined” jority’s protestations retroactivity —the analysis: “If repre- this a new rule analysis not mere precedent does treat abrupt departure sents an from well estab- practice well-established alike. practice, party’s lished reliance on the When Acosta-Olivarria for ad- reasonable, prior likely rule is to be where- status, justment of there was no settled if merely attempts as the rule to fill a void reasonably practice upon which he could law, in an unsettled area of reliance is less rely. pre-Briones The Ninth Circuit’s (inter- likely to be reasonable.” Id. at 521 opinions hardly constitute a well estab- omitted). quotation marks nal As the Gar- practice, especially light lished noted,

fias-Rodriguez properly court contrary tension created the BIA’s retroactivity “these two factors will if favor True, opinion view. the Circuit’s a party reasonably anticipated could have previous reasoning affirmed its in Perez- change in the law such that the new Gonzalez, the BIA’s decision in Tor- but requirement complete would not be a sur- res-Garcia cannot be discounted. Given (internal prise.” quotation marks omit- the unsettled tension between BIA ted); Clark-Cowlitz, see 826 F.2d at 1082- (“The at the time of Acosta-Olivar- this Circuit requires second factor the court resulting as the gauge unexpectedness application, of a rule and ria’s as well in the BIA’s decision de- in Acosta and the two unreconcilable confusion from called an court not- cisions,2 Although cannot be Briones. the en banc Briones any well established period “might” from abrupt during break ed that reliance this 900, Int’l Union Local practice. See in an at- perhaps have been reasonable — NLRB, Elec., Mach. Workers Radio & highlight the unreason- tempt to further (“Given (D.C.Cir.1984) 1184, 1195 727 F.2d Garfias-Rodriguez’s reliance— ableness of Board’s and courts’ the confusion the a from binds this Court to opinion far rule can- years, the new decisions over 21- during reliance this holding that such with a well- abrupt called an break not be rule, is, as a blanket rea- month window such, Acosta-Olivar- policy.”). As settled See sonable. contrary reliance on Ninth Circuit ria’s Rather, any discussion the rea- at 522. not reasonable. decisions was this during period of reliance sonableness me for majority primarily faults tempered by following: quickly was admissibility. bars to conflating the two outset, the tension between From the True, opinion in the Circuit’s Perez-Gon- 212(a)(9)(c) 245(i) was obvious. contrary decision in zalez and the BIA’s re- ambiguity That the law—which addressed the tension be- Torres-Garcia six-year dialogue between the sulted a eligibility for status un- tween given BIA and us—should have Garfias admissibility der a different bar —sub- for ad- eligibility no assurances of his II, rather than subsection I of 8 section might have justment of status. Garfias 1182(a)(9)(C)(i). However, as U.S.C. encouraged reason to be after our had provisions, both subsections companion reading of the statute in Per- generous conflict, present the same see Garfias- Acosta, but, then, even ez-Gonzalez Rodriguez, 702 F.3d at 509 n. and thus on our decisions any placed reliance he their similar treatment should have come held some risk because our decisions (Kozinski, J., id. at 530 surprise, as no see subject by the BIA were to revision (“No dissenting) one should have been sur and Brand X. under Chevron prised by interpretation announced 522-23; Id. at see also Carrillo de Palac clearly by Briones. It was foreshadowed ios v. ruling in In re Torres- the BIA’s earlier Cir.2013) (similarly holding the ten Garcia, predated a which provisions sion between the two was “obvi omitted)). (citation month....” And as ambiguity in the law ous” and emphasized in Acosta the Circuit when given should have an alien “no assur controlled, concluding that Perez-Gonzalez ances”). “any attempt distinguish present case from based on the opinion Perez-Gonzalez the BIA’s in Briones Because grounds inadmissability in different as an justifiably cannot be characterized Acosta, unpersuasive.” volved would be well established abrupt break F.3d at 554. practice but rather should have been no of Acosta-Oli- surprise, the reasonableness reaching its conclusion that Acosta- greatly reliance diminished. varria’s reasonable, Olivarria’s reliance was reliance— The extent of Acosta-Olivarria’s majority overstates the effect of the dicta $1,000 re- fee incurred after Garfias-Rodríguez regarding the rea- already proceedings moval had commenced during of reliance the 21- sonableness period opinion years beneficially spent month between the Circuit’s the United Garcia, distinguish 2. The did not which had been issued one month Acosta court —let alone mention —the BIA’s decision in Torres- before Acosta. Bennett; hypothetically Bennett, when he could have Michael Linda States as and started the ten- voluntarily departed Co-Administrators of the Estate of Bennett, year Plaintiffs-Appel clock under 8 U.S.C. Maria Ann readmission 1182(a)(9)(C)(ii) lees, insufficient out- —is weigh this conclusion. v. light foregoing, no manifest Republic The Islamic

injustice been here. The has shown more Iran, Defendant, equitable approach fair would be to v. treat all other Aeosta-Olivarria like aliens ineligible Inc.; Resources, Inc., who are Visa Franklin Briones. Retroactivity Defendants-third-party is the rule years. plaintiffs-Appellees, and has been for over 200 An - exception is not warranted the case of v. I Accordingly, Aeosta-Olivarria. would Greenberg Judgement and Acosta not disturb the BIA’s decision. Creditors, Plaintiff-third-party-

defendant-Appellee, Judgment Creditors, Heiser Plaintiff- fourth-party-defendant-Appellee, v. Melli, Plaintiff-third-party-

Bank defendant-Appellant. BENNETT; Bennett, Michael Linda as 13-15442, Nos. 13-16100. Co-Administrators of the Estate of Bennett, Plaintiffs-Appel Ann Maria Appeals, United States Court of lees, Ninth Circuit.

v. Argued April and Submitted The ISLAMIC REPUBLIC Aug. Filed IRAN, Defendant, OF

v. Inc.; Resources, Inc., Franklin Visa

Defendants-third-party-

plaintiffs-Appellees,

v. Greenberg Judgement and Acosta

Creditors, Plaintiff-third-party-

defendant-Appellee, Judgment Creditors, Heiser Plaintiff- fourth-party-defendant-Appellee, Melli, Plaintiff-third-party- Bank

defendant-Appellant.

Case Details

Case Name: Gilberto Acosta-Olivarria v. Loretta E. Lynch

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 26, 2015

Citation: 799 F.3d 1271

Docket Number: 10-70902

Court Abbreviation: 9th Cir.