1
IN THE UNITED STATES DISTRICT COURT
2

3

FOR THE WESTERN DISTRICT OF WASHINGTON

4 Aurelio DURAN GONZALEZ, Maria C. ESTRADA, Maria Luisa MARTINEZ DE
5
MUNGUIA, Irma PALACIOS DE BANUELOS, 6 Lucia MUNIZ DE ANDRADE, Karina NORIS,
Adriana POUPARINA,
7

8

Plaintiffs,

9

v.

No.:
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

10
U.S. DEPARTMENT OF HOMELAND 11 SECURITY and Michael CHERTOFF, Secretary
12 of the Department of Homeland Security,

CLASS ACTION

13

Defendants.

14

15

I. PRELIMINARY STATEMENT

16 1. This is a class action on behalf of people who have been denied the opportunity to apply for

17 lawful permanent resident (LPR) status as a result of Defendants’ refusal to comply with the
18
precedent decision of the Ninth Circuit in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).
19
The Ninth Circuit has determined that individuals in Plaintiffs’ position are eligible to apply for
20
21 “adjustment” to LPR status. Defendants’ willful refusal to comply with this governing precedent

22 causes irreparable harm to Plaintiffs who are deprived of their only avenue to remain in the United
23
States with their U.S. citizen and/or lawful permanent resident family members. Instead, Plaintiffs
24
are threatened not only with the loss of both employment authorization and the opportunity to obtain
25
26 lawful permanent resident status, but also with detention, summary removal, and separation from

27 their homes and family.

28

COMPLAINT- 1 of 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1 2. Plaintiffs are seeking declaratory, injunctive, and mandamus relief arising out of the unlawful

2 actions of the Department of Homeland Security (DHS), through its subcomponent, U.S. Citizenship
3
and Immigration Services (USCIS). Defendants have ordered immigration officers, including those
4
within the jurisdiction of the Ninth Circuit, to deny applications for “Permission to Reapply for
5
6 Admission After Deportation or Removal” filed on form I-212 (hereinafter I-212 waiver

7 application), because ten years have not elapsed since their last departure. This violates the Ninth

8
Circuit’s decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).

9
3.
10

DHS’ failure to adhere to precedent violates Ninth Circuit case law, the Immigration and

11 Nationality Act (INA), the Administrative Procedure Act (APA), the Fifth Amendment of the United

12 States Constitution, and binding federal regulations which govern administrative adjudication and

13 review procedures.

14
4.

Plaintiffs are applicants for adjustment of status within the jurisdiction of the Ninth Circuit

15

Court of Appeals who are prima facie eligible to apply for adjustment of status under § 245(i) of the
16

17 Immigration and Nationality Act (INA), 8 U.S.C. § 1255(i) in conjunction with an I-212 waiver

18 application. Plaintiffs seek declaratory and injunctive relief on behalf of themselves and others

19 similarly situated requiring DHS to stop the unlawful denials of I-212 waiver applications, and
20
ordering Defendants to readjudicate the previously denied I-212 waiver applications in accordance
21
with the law.
22

23

24

II. JURISDICTION AND VENUE

25
5. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1651, as a civil
26
action arising under the Constitution and laws of the United States; 5 U.S.C. § 701 et seq., as an
27
28 action to compel agency action unlawfully withheld or unreasonably delayed; and 28 U.S.C. § 1361,

COMPLAINT- 2 of 14

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1 as an action to compel an officer or employee of the United States to perform a duty owed to

2 Plaintiffs. Declaratory judgment is sought pursuant to 28 U.S.C. §§ 2201-02.

3
6.
4

Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (e)(1), (2), (4)

because Defendants are a U.S agency and head officer of a U.S agency; Defendant has a residence in
5

6 this district; because “a substantial part of the events or omissions giving rise to the claim occurred”

7 in the jurisdiction of this district; because some Plaintiffs reside in this district; and because no real
8
property is involved in this action.
9

10

11

III. PARTIES

12 7. Plaintiff Aurelio Duran Gonzalez is a citizen of Mexico who currently resides in Tukwila,

13 Washington. On March 24, 2006, Mr. Duran Gonzalez filed an I-212 waiver application in
14
conjunction with an application for adjustment of status under INA § 245(i) with the Seattle USCIS
15
office. To date, USCIS has not yet adjudicated Mr. Duran Gonzalez’s I-212 waiver application.
16
17 Pursuant to Defendants’ unlawful directive, USCIS will deny his I-212 waiver application and his

18 application for adjustment of status because ten years have not elapsed since the date of his last

19 departure from the United States.

20
8.
21

Plaintiff Maria C. Estrada is a citizen of Mexico who currently resides in Lynden,

Washington. On April 1, 2005, Ms. Estrada filed an I-212 waiver application in conjunction with an
22

23 application for adjustment of status under INA § 245(i) with the Seattle USCIS office. On

24 September 15, 2005, USCIS denied Ms. Estrada’s I-212 waiver application (and adjustment of status
25
application). The USCIS denied the I-212 waiver application, finding her ineligible for the waiver
26
solely because 10 years had not elapsed since the date of Mrs. Estrada’s last departure from the
27
28 United States.

COMPLAINT- 3 of 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1 9. Plaintiff Maria Luisa Martinez de Munguia is a citizen of Mexico who currently resides in

2 Tieton, Washington. On May 5, 2006 Ms. Martinez de Munguia filed an I-212 waiver application in
3
conjunction with an application for adjustment of status under INA § 245(i) with the Yakima USCIS
4
office. To date, USCIS has not yet adjudicated Ms. Martinez de Munguia’s I-212 waiver
5
6 application. Pursuant to Defendants’ unlawful directive, USCIS will deny her I-212 waiver

7 application and her application for adjustment of status because ten years have not elapsed since the

8
date of her last departure from the United States.

9
10.
10

Plaintiff Irma Palacios de Banuelos is a citizen of Mexico who currently resides in Galt,

11 California. On February 3, 2006, Ms. Palacios de Banuelos filed an I-212 waiver application in

12 conjunction with an application for adjustment of status under INA § 245(i) with the Sacramento

13 USCIS office. On June 20, 2006, USCIS denied Ms. Palacios de Banuelos’ I-212 waiver application
14
(and adjustment of status application). The USCIS denied the I-212 waiver application, finding her
15
ineligible for the waiver solely because 10 years had not elapsed since the date of Mrs. Palacios de
16
17 Banuelos’ last departure from the United States.

18 11. Plaintiff Lucia Muniz de Andrade is a citizen of Mexico who currently resides in Stockton,

19 California. On March 28, 2006, Ms. Muniz de Andrade filed an I-212 waiver application in
20
conjunction with an application for adjustment of status under INA § 245(i) with the Sacramento
21
USCIS office. On August 15, 2006, USCIS denied Ms. Muniz de Andrade’s I-212 waiver
22
23 application (and adjustment of status application). The USCIS denied the I-212 waiver application,

24 finding her ineligible for the waiver solely because 10 years had not elapsed since the date of the Ms.

25
Muniz de Andrade’s last departure from the United States.

26
12.
27

Plaintiff Karina Noris is a citizen of Mexico who currently resides in San Bernardino,

28 California. On June 15, 2005, Ms. Noris filed an I-212 waiver application in conjunction with an

COMPLAINT- 4 of 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1 application for adjustment of status under INA § 245(i) with the Los Angeles USCIS office. To

2 date, USCIS has not yet adjudicated Ms. Noris’ I-212 waiver application. Pursuant to Defendants’
3
unlawful directive, USCIS will deny her I-212 waiver application and her application for adjustment
4
of status because ten years have not elapsed since the date of her last departure from the United
5
6 States.

7 13. Plaintiff Adriana Pouparina is a citizen of Mexico who currently resides in South Gate,
8
California. On March 28, 2005, Ms. Pouparina filed an I-212 waiver application in conjunction with
9
an application for adjustment of status under INA § 245(i) with the Los Angeles USCIS office. To
10
11 date, USCIS has not yet adjudicated Ms. Pouparina’s I-212 waiver application. Pursuant to

12 Defendants’ unlawful directive, USCIS will deny her I-212 waiver application and her application

13 for adjustment of status because ten years have not elapsed since the date of her last departure from
14
the United States.
15
14. Defendant the Department of Homeland Security is an executive agency of the United States.
16
17 As of March 1, 2003, DHS is the agency responsible for implementing the Immigration and

18 Nationality Act. Within DHS, USCIS (formerly part of the Immigration and Naturalization Service)

19 is responsible for adjudicating affirmatively filed I-212 waiver applications and affirmatively filed
20
adjustment of status applications. Within DHS, Immigration and Customs Enforcement (ICE) is
21
responsible for initiating removal proceedings and executing removal orders.
22
23 15. Defendant Michael Chertoff is the Secretary of the Department of Homeland Security and as

24 such is charged with responsibility for the administration and enforcement of the Immigration and
25
Nationality Act and all other laws relating to the immigration of noncitzens. He is sued in his official
26
capacity.
27

28

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1

IV. LEGAL AND FACTUAL BACKGROUND

2 16. On August 13, 2004, the U.S. Court of Appeals for the Ninth Circuit held that § 245(i)
3
adjustment applicants who are inadmissible under INA § 212(a)(9)(C)(i)(II), 8 U.S.C. §
4
1182(a)(9)(C)(i)(II) (for having reentered unlawfully after a prior deportation or removal order) are
5

6 eligible to have their I-212 waiver applications adjudicated by USCIS if the application was filed

7 before ICE reinstated their prior removal order under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). See

8
Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).

9
17.
10

Under the Ninth Circuit’s decision in Perez-Gonzalez, reinstatement of removal may not be

11 initiated unless and until there is final administrative denial of the I-212 waiver and corresponding

12 application for adjustment of status. The government filed a motion to reconsider and a petition for

13 rehearing in Perez-Gonzalez. The Ninth Circuit denied both. The government did not file a petition
14
for writ of certiorari to the U.S Supreme Court. Accordingly, Perez-Gonzalez is binding on all cases
15
filed within the Ninth Circuit Court of Appeals.
16
17 18. On March 31, 2006, USCIS issued an Interoffice Memorandum providing field guidance for

18 the adjudication of I-212 waiver applications in light of Perez-Gonzalez. Memorandum from

19 Michael Aytes, USCIS Acting Associate Director for Operations, and Dea Carpenter, Acting Chief
20
Counsel, to the field, dated March 31, 2006, entitled “Effect of Perez-Gonzalez v. Ashcroft on
21
adjudication of Form I-212 applications filed by aliens who are subject to reinstated removal orders
22
23 under INA § 241(a)(5),” hereinafter “Perez-Gonzalez Memo.” By instructing USCIS officers to

24 deny any I-212 waiver application where “10 years have not elapsed since the date of the alien’s last
25
departure from the United States” (Memo, p. 2), the guidance in the Perez-Gonzalez Memo
26
completely flouts the holding of the Court in Perez-Gonzalez for I-212 applications filed in the Ninth
27
28 Circuit.

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1 19. Mr. Perez-Gonzalez had been deported on November 30, 1994 and unlawfully reentered

2 twice, in December 1995 and again in December 1999. He filed his I-212 waiver application in July
3
2002. Perez-Gonzalez, 379 F.3d at 785. It was clear that 10 years had not elapsed since the date of
4
Mr. Perez-Gonzales’ “last departure.” At the end of the decision in Perez Gonzalez, the court
5
6 specifically found Mr. Perez-Gonzalez eligible to apply for adjustment of status along with his I-212

7 waiver application and “remand[ed the case] to the USCIS for a discretionary determination on

8
appropriate legal grounds.” Perez Gonzalez, 379 F.3d at 796.

9
20.
10

The instructions of the Perez-Gonzalez Memo to deny I-212 waiver applications where 10

11 years have not elapsed since the date of the person’s last departure squarely conflicts with the facts,

12 statutory interpretations, and ultimate holding of the Ninth Circuit in Perez-Gonzalez. That is, the

13 memo’s interpretation of INA §212(a)(9)(C)(i)(II) to preclude I-212 eligibility until after departure
14
and the expiration of 10 years abroad is inconsistent with the Perez-Gonzalez Court’s interpretation
15
of that provision, which does not similarly preclude I-212 waiver eligibility.
16
17 21. Plaintiffs who have already been issued final administrative denials of their I-212 waiver

18 applications by USCIS consistent with the policy outlined in the Perez-Gonzalez Memo are subject

19 to having their prior removal orders reinstated under INA § 241(a)(5) and, accordingly, are at risk of
20
imminent removal from the United States without a hearing. They have been unlawfully deprived of
21
the opportunity to have their I-212 waiver applications adjudicated in accordance with the law of the
22
23 circuit and, thus, have been unlawfully deprived of the opportunity to legalize their status and remain

24 in the country with their U.S. citizen and/or lawful permanent resident family members.
25
22. Plaintiffs whose I-212 waiver applications have not yet been adjudicated are at risk of being
26
unlawfully deprived of the opportunity to have their I-212 waiver applications adjudicated in
27
28 accordance with the law of the circuit and, thus, are at risk of being unlawfully deprived of the

COMPLAINT- 7 of 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1 opportunity to legalize their status and remain in the country with their U.S. citizen and/or lawful

2 permanent resident family members. When USCIS, pursuant with their policy, issues a final
3
administrative denial of the Plaintiffs’ I-212 waiver applications, Plaintiffs will be at risk of having
4
their prior removal orders reinstated under INA § 241(a)(5) and, accordingly, will be at risk of
5
6 imminent removal from the United States without a hearing.

7

8
9
23.
10

V. CLASS ALLEGATIONS Plaintiffs bring this action on behalf of themselves and all others who are similarly situated,

11 pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The class, as proposed, consists of:

12

(a) individuals who have filed an I-212 waiver application within the jurisdiction of

the Ninth Circuit, in conjunction with their application for adjustment of status under

13

INA § 245(i), prior to any final reinstatement determination, where USCIS denied the

14

I-212 application because 10 years had not elapsed since the date of the applicant’s

last departure from the United States (hereinafter the Denied Class); and

15

(b) Individuals who have filed or will file an I-212 waiver application within the

16

jurisdiction of the Ninth Circuit, in conjunction with their application for adjustment

17

of status under INA § 245(i), prior to any final reinstatement determination, where

USCIS has not yet adjudicated the application but where USCIS will deny their I-212

18

application pursuant to Defendants’ policy because 10 years had not elapsed since the

date of the applicant’s last departure from the United States (hereinafter Future

19

Denials Class).

20
24.
21

The requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2) are met in that the

class is so numerous that joinder of all the members is impracticable. The precise number of
22

23 potential class members is not currently identifiable by Plaintiffs. However, on information and

24 belief there are hundreds of persons who have either submitted I-212 waiver applications which have
25
been denied or will be denied for the same reasons as were Plaintiffs’ or who wish to submit I-212
26
waiver applications but have not done so for fear of having their applications denied for the same
27
28 reason as were Plaintiffs’.

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NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1 25. There are questions of law and fact common to the proposed class that predominate over any

2 questions affecting only the individual named Plaintiffs and class members, including: (1) whether
3
Defendants’ policy and actions in failing to comply with Perez-Gonzalez violates Plaintiffs’ rights
4
under the INA, the APA and the Constitution to have their applications adjudicated in accordance
5
6 with the law.

7 26. The claims of the named Plaintiffs are typical of the claims of the proposed class. The
8
named Plaintiffs, like all class members, have had their I-212 waiver applications denied or expect to
9
have them denied based on Defendants’ determination that they are ineligible for such a waiver
10
11 because 10 years have not elapsed since their last departure. This is contrary to the Ninth Circuit’s

12 decision in Perez-Gonzales.

13 27. The named Plaintiffs will fairly and adequately protect the interests of the proposed class
14
because they seek relief on behalf of the class as a whole and have no interest antagonistic to other
15
members of the class.
16
17 28. The named Plaintiffs also are represented by competent counsel with extensive experience in

18 immigration law and federal court litigation and who are willing and able to protect the interests of

19 the class.

20
29.
21

Finally, Defendants have acted on grounds generally applicable to the class, thereby making

appropriate final declaratory and injunctive relief with respect to the class as a whole.
22

23

24 25 26 27
28 30.

VI. CAUSES OF ACTION FIRST CAUSE OF ACTION (Failure to Adhere to Precedent) Plaintiffs repeat, allege, and incorporate paragraphs 1 through 29 as if fully set forth herein.

COMPLAINT- 9 of 14

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1 31. Defendants’ failure to adhere to precedent case law violates Ninth Circuit case law, INA §

2 242, the APA, and Plaintiffs’ constitutional rights to receive due process. USCIS has determined
3
that it will categorically deny all I-212 waiver applications, and is in fact denying such applications,
4
if 10 years have not elapsed since the applicant’s last departure from the United States. Defendants’
5
6 actions directly conflict with the holding of Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.

7 2004).
8

9
SECOND CAUSE OF ACTION
10
11 (Violation of INA §§ 212(a)(9)(C), 245(i), 8 U.S.C. § 1182(a)(9)(C), 1255(i) and 8 C.F.R. § 212.2)

12 32. Plaintiffs repeat, allege, and incorporate paragraphs 1 through 29 as if fully set forth herein.

13 33. Defendants violate Plaintiffs’ statutory right to apply for relief which Congress has provided
14
under the INA, depriving Plaintiffs of their opportunity to obtain adjustment of status to lawful
15
permanent residence and live lawfully in the United States under INA § 245(i) and its accompanying
16
17 waiver of inadmissibility under INA § 212(a)(9)(C) as implemented by 8 C.F.R. § 212.2.

18

19 20 21
34.
22
23 35.

THIRD CAUSE OF ACTION (Violation of 5 U.S.C. §§ 702, 706 (APA Claims)) Plaintiffs repeat, allege, and incorporate paragraphs 1 through 29 as if fully set forth herein. Plaintiffs have suffered a “legal wrong” or have been “adversely affected or aggrieved” by

24 agency actions. 5 U.S.C. § 702. Plaintiffs are persons aggrieved by agency action, for which there

25
is no other adequate remedy in a court. 5 U.S.C. § 704.

26
36.
27

Defendants’ unlawful refusal to comply with the law in adjudicating Plaintiffs’ I-212 waiver

28 applications may cause irreparable harm, depriving Plaintiffs of their opportunity to obtain

COMPLAINT- 10 of 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1 adjustment of status to lawful permanent residence and live lawfully in the United States. Plaintiffs

2 are therefore entitled to injunctive relief to “compel agency action unlawfully withheld or
3
unreasonably delayed.” 5 U.S.C. §§ 555(b), 706(1).
4
37. The denial of the applications in reliance on a non-binding agency interpretation, and
5
6 contrary to the Defendants’ regulations exceeds the Defendants statutory authority. 5 U.S.C. §

7 706(c)(2).
8

9 10 11
12 38.

FOURTH CAUSE OF ACTION (Relief under the Mandamus Act) Plaintiffs repeat, allege, and incorporate paragraphs 1 through 29 as if fully set forth herein.

13 39. Plaintiffs have a claim for mandamus relief under 28 U.S.C. § 1361 which provides the

14 authority to compel the agency to perform a duty owed to the Plaintiffs. Defendants have failed, and
15
will continue to fail, to adjudicate I-212 waiver applications along with applications for adjustment
16
of status in accord with the governing statute, regulations, and case law.
17

18

19

VII. PRAYER FOR RELIEF

20 WHEREFORE, Plaintiffs’ respectfully request that this Court:
21
1. Assume jurisdiction over the matter;
22
2. Certify this case as a class action, as proposed herein;
23

24

3. Declare DHS’ policy to deny I-212 waiver applications because 10 years have not

25 elapsed since the applicant’s last departure from the United States unlawful as it fails to comply with
26
Perez-Gonzalez;
27

28

COMPLAINT- 11 of 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1

4. Preliminarily and then permanently enjoin DHS from denying any I-212 waiver

2 application because 10 years have not elapsed since the applicant’s last departure from the United
3
States, in violation of Perez-Gonzalez;
4
5. Order Defendants to adjudicate I-212 waiver applications and adjustment of status
5
6 applications in compliance with Perez-Gonzalez;

7

6. Order Defendants to readjudicate the I-212 waiver applications of the denied class in

8
compliance with Perez-Gonzalez;
9
7. Award reasonable attorneys’ fees and costs pursuant to the Equal Access to Justice
10

11 Act, 28 U.S.C. § 2412(d), 5 U.S.C. § 504, or any other applicable law; and

12

8. Grant any and all further relief as this Court deems just and appropriate.

13

14
Dated this
15

day of

2006

16

17

Respectfully submitted,

18

NORTHWEST IMMIGRANT RIGHTS PROJECT

AMERICAN IMMIGRATION LAW FOUNDATION

19

VAN DER HOUT, BRIGAGLIANO & NIGHTINGALE

20

21

_______________________________________________

22

By: Matt Adams

23

24 25 26 27 28
COMPLAINT- 12 of 14

Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957-8611 (Phone) (206) 587-4025 (Fax) matt@nwirp.org
NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT- 13 of 14

Trina Realmuto Trina_Realmuto@sunrise.ch Beth Werlin bwerlin@ailf.org Nadine Wettstein nwettstein@ailf.org AMERICAN IMMIGRATION LAW FOUNDATION 918 F Street, N.W. Washington, D.C. 20004 (202) 742-5610 (Phone) (202) 742-5619 (Fax)
Marc Van Der Hout Stacy Tolchin VAN DER HOUT, BRIGAGLIANO & NIGHTINGALE, LLP Van Der Hout, Brigagliano & Nightingale, LLP 180 Sutter St. Fifth Floor San Francisco, CA 94104 (415) 981-3000 (Phone) (415) 981-3003 (Fax) stol@vblaw.com Attorneys for Plaintiffs
NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

1

PROOF OF SERVICE BY PERSON

2 I, the undersigned, say:
3
I am over the age of eighteen years and not a party to the within action or proceedings; my business 4 address is: Northwest Immigrant Rights Project, 615 Second Ave., Ste. 400, Seattle, Washington
98104.
5

6 On September 28, 2006 I caused to be served the within:

7

Complaint for Declaratory & Injunctive Relief, along with attached

8

Motion for Class Certification, &

Motion for Temporary Restraining Order and Preliminary Injunctive Relief,

9
On the office listed below by delivering in person a true copy, thereof, to:
10

11

Assistant U.S. Attorney’s Office

700 Stewart St., Ste. 5220

12

Seattle, WA 98101-3903

13

And to the office listed below by depositing a true copy, thereof, enclosed in a sealed

14 envelope with postage fully pre-paid, to:

15

Michael Chertoff

16

Secretary, DHS

17

Office of the General Counsel

US Dept of Homeland Security

18

Washington DC 20258

19

20
Executed on September 28, 2006 at San Francisco, California. I declare under penalty of 21 perjury that the foregoing is true and correct.
22

23

Angelica Chazaro

24

Declarant

25

26

27

28

COMPLAINT- 14 of 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

 
 Case 2:06-cv-01411-MJP Document 22 Filed 10/11/2006 Page 1 of 8

1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 AURELIO DURAN GONZALES, et al.,

8

Plaintiffs,

9 v.
10 U.S. DEPARTMENT OF HOMELAND
11 SECURITY and MICHAEL CHERTOFF, Secretary of the Department of Homeland
12 Security,

No. C06-1411P
ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE

13

Defendants.

14

15 16 I. INTRODUCTION

17

This matter comes before the Court on Plaintiffs’ Motion for a Temporary Restraining Order

18 and Preliminary Injunction (Dkt. # 2-1). A hearing on the motion was held on Wednesday, October

19 4th, 2006. As announced at the hearing, and as outlined below in the Court’s findings of fact and
20 conclusions of law, the Court GRANTS in part Plaintiffs’ motion for a temporary restraining order.
21 A show cause hearing is scheduled for November 6th, 2006, at 4:00 p.m. before the Honorable
22 Marsha J. Pechman. Defendants’ papers opposing the preliminary injunction are due on October 18th,
23 2006. Plaintiffs’ reply is due on October 27th, 2006.
24

25

26

TEMPORARY RESTRAINING ORDER - 1

Case 2:06-cv-01411-MJP Document 22 Filed 10/11/2006 Page 2 of 8

1 II. FINDINGS OF FACT

2 1. Plaintiffs are aliens who have filed I-212 waiver applications within the jurisdiction of the

3 Ninth Circuit in conjunction with their applications for adjustment of status under INA §

4 245(i), 8 U.S.C. § 1255(i), prior to any final reinstatement determination under INA §
5 241(a)(5), 8 U.S.C. § 1231(a)(5). Plaintiffs I-212 applications have been or will be denied by
6
United States Citizenship and Immigration Services (USCIS) pursuant to Defendants’ policy 7

8

of denying I-212 applications where the applicant is inadmissible under INA § 212(a)(9)(C)(i)

9

and ten years have not elapsed since the date of the applicant’s last departure from the United

10

States.

11 2. 12 13 14 15 16 17 18 3. 19

Defendant Department of Homeland Security (DHS) is an executive agency of the United States. The Secretary of DHS is charged with the administration and enforcement of the INA and all other laws relating to the immigration and naturalization of aliens. United States Citizenship and Immigration Services (USCIS) is a bureau of DHS and is responsible for adjudicating immigration and naturalization applications and establishing immigration services policies. Defendant Michael Chertoff is the Secretary of DHS. Plaintiffs are suing Mr. Chertoff in his official capacity.

20 4. Plaintiffs provided both written and oral notice to Defendants, through counsel, that they were

21
22 5. 23
24 6.
25
26

filing a motion for temporary restraining order in this case. On August 13th, 2004, the Ninth Circuit issued Perez-Gonzales v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). On March 31st, 2006, USCIS issued an internal policy guidance entitled “Effect of PerezGonzales v. Ashcroft on adjudication of Form I-212 applications filed by aliens who are

TEMPORARY RESTRAINING ORDER - 2

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1 2 3 4 5 6
7. 7 8 9

subject to reinstated removal orders under INA § 241(a)(5)” (“Perez-Gonzales Memo”). In
Part 3(A) of the Perez-Gonzales Memo, Defendants issued the following directive:
[I]n any case where an alien is inadmissible under section 212(a)(9)(C)(i) of the INA and 10 years have not elapsed since the date of the alien’s last departure from the United States, USCIS should deny any Form I-212 requesting consent to reapply for admission.
Defendants have applied this policy to the applications of Plaintiffs Estrada, Banuelos, and
Andrade. Defendants denied each of these plaintiffs I-212 applications on the grounds that
these individuals did not qualify for consent to reapply because they are inadmissable under

10

INA § 212(a)(9)(C)(i) and less than ten years had passed since their last departure from the

11

United States.

12 III. CONCLUSIONS OF LAW

13 1.
14 15 16 17

The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1651, as a civil action arising under the Constitution and laws of the United States; 5 U.S.C. § 701 et seq., as an action to compel agency action unlawfully withheld or unreasonably delayed; 28 U.S.C. § 1361, as an action to compel an officer or employee of the United States or any agency thereof to perform

18

a duty owed.

19 2. INA § 242(f), 8 U.S.C. § 1252(f), does not limit or remove the Court’s jurisdiction in this

20

action. INA § 242(f) provides as follows:

21

Regardless of the nature of the action or claim or of the identity of the party

or parties bringing the action, no court (other than the Supreme Court) shall

22

have jurisdiction or authority to enjoin or restrain the operation of the

23

provisions of part IV of this subchapter . . . other than with respect to the

application of such provisions to an individual alien against whom proceedings

24

under such part have been initiated.

25

Plaintiffs seek injunctive relief to preserve the status quo with respect to applications for

26

adjustment of status, which are governed by part V of the INA (INA § 245(i), 8 U.S.C.

TEMPORARY RESTRAINING ORDER - 3

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1

1255(i)), and I-212 waiver applications, which are governed by part II of the INA (INA §

2

212, 8 U.S.C. 1182). Plaintiffs do not seek to directly “enjoin or restrain the operation of the

3

provisions of part IV” of the INA.1 Moreover, Plaintiffs are not seeking to enjoin the lawful

4 application of the INA, but are seeking to enjoin violations of the Act. As the Ninth Circuit
5 explained in Ali v. Ashcroft, “[INA § 242(f)(1), 8 U.S.C.] § 1252(f)(1) is inapplicable [where]
6

[p]etitioners seek not to enjoin the operation of [the INA] but violations of the statute and to 7

8

ensure that the provision is properly implemented.” Ali v. Ashcroft, 346 F.3d 873, 886 (9th

9

Cir. 2003), rev’d on other grounds, Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005) (internal

10

quotation marks omitted).

11 3. 12 13 14 15 16 17 18 19

Plaintiffs are not required to exhaust their administrative remedies because neither INA § 212 nor 8 C.F.R. § 212.2 requires an administrative appeal. See Darby v. Cisneros, 509 U.S. 137, 154 (1993) (“[W]here the APA applies, an appeal to ‘superior agency authority’ is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review.”); Chang v. U.S., 327 F.3d 911, 922 (9th Cir. 2003) (“Absent language foreclosing immediate judicial review, a district court’s subject matter jurisdiction is unaffected by the availability of non-mandatory administrative procedures.”). Moreover, “where [an] agency’s

20

position on the question at issue appears already set, and it is very likely what the result of

21

recourse to administrative remedies would be, such recourse would be futile and is not

22

required.” El Rescate Legal Services, Inc. v. Executive Office of Immigration Review, 959

23 F.2d 742, 747-48 (9th Cir. 1992). Here, exhaustion would be futile because Defendants have
24

25

1

The relief sought by Plaintiffs under parts II and V of the INA, if granted, will, under

Perez-Gonzales, have the effect of impeding reinstatement proceedings under Part IV of the INA — INA 26 § 241(a)(5), 8 U.S.C. § 1231(a)(5). But that effect is one step removed from the relief sought by

Plaintiffs and therefore does not bring this action within the INA § 242(f) jurisdictional bar.

TEMPORARY RESTRAINING ORDER - 4

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1 2 3 4
4. 5 6 7 8 5. 9 10 11 6. 12 13 14 15 16 7. 17 18 19 20
8. 21 22 23 24 25 9. 26

already stated, and applied in a number of cases, the policy embodied in Part 3(A) of the Perez-Gonzales Memo. It is therefore unnecessary to require Plaintiffs to exhaust their administrative remedies before bringing their claims. In order to obtain a temporary restraining order, Plaintiffs must meet the standards for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). In order to obtain a preliminary injunction, Plaintiffs must meet either the Ninth Circuit’s “traditional” or “alternative” test. Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993). The traditional test requires the court to find the following:
(1) the moving party will suffer irreparable injury if the relief is denied; (2) there is a strong likelihood that the moving party will prevail on the merits at trial; (3) the balance of potential harm favors the moving party; and (4) the public interest favors granting relief. Id. (quoting Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987)). The “alternative” test requires the court to find either (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party. Id.
The two prongs of the alternative test are not separate inquiries, but rather “extremes of a single continuum.” Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003). A strong showing of hardship means that a plaintiff need not show as strong a likelihood of success, and vice versa. The Court’s ultimate decision on a motion for preliminary injunction is within its discretion. Cassim, 824 F.2d at 796.

TEMPORARY RESTRAINING ORDER - 5

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1 10. The Court finds that Plaintiffs are likely to succeed on the merits of their claim that the

2 3 4 5 6 7 8 9 11.

directives in Part 3(A) of the Perez-Gonzales Memo violate the Ninth Circuit’s decision in Perez-Gonzales v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). Although Perez-Gonzales did not explicitly address the issue of whether USCIS may reject Form I-212 applications on the grounds that an alien otherwise inadmissible under INA § 212(a)(9)(C)(i) had not remained outside the United States for at least ten years prior to his application, that is the necessary implication of the opinion. The Court finds that it is likely that Plaintiffs will suffer immediate and irreparable harm in the

10

form of loss of eligibility to apply for adjustment of status under INA § 245(i) and potential

11 12 12. 13 14 15 16 17 18 13. 19

removal or reinstatement of removal orders under INA § 241(a)(5). The Court finds that Defendants will suffer little hardship from preserving the status quo pending the resolution of Plaintiffs’ preliminary injunction motion. Any burden will only be administrative in nature. For this reason, the Court finds that the balance of hardships weighs in favor of granting a temporary restraining order enjoining Defendants from enforcing Part 3(A) of the Perez-Gonzales Memo. The Court finds that it is not necessary to issue a decision on Plaintiffs’ Motion to Certify a Class at this point.

20 IV. TEMPORARY RESTRAINING ORDER AND SHOW CAUSE ORDER

21

IT IS HEREBY ORDERED that pending a ruling on Plaintiffs’ motion for a preliminary

22 injunction, defendants are enjoined from applying or enforcing the policy enumerated in Part 3(A) of 23 the Perez-Gonzales Memo.2 Defendants therefore may not deny any I-212 applications in the Ninth 24

25

2

Part 3(A) states, in relevant part, as follows:

26

Aliens Seeking Consent to Reapply Prior to Expiration of Required 10-Year Period

TEMPORARY RESTRAINING ORDER - 6

Case 2:06-cv-01411-MJP Document 22 Filed 10/11/2006 Page 7 of 8

1 Circuit on the grounds that the applicant is inadmissible under INA § 212(a)(9)(C)(i) and ten years

2 have not elapsed since the applicant’s last departure from the United States. And defendants may not

3 give any legal effect to any denied I-212 applications if: (a) the applicant was in the Ninth Circuit at
4 the time of his or her application, (b) the application was denied between March 31st, 2006, and the
5 date of this order, and (c) the application was denied on the grounds that the applicant was
6 inadmissible under INA § 212(a)(9)(C)(i) and ten years had not elapsed since the applicant’s last
7
8 departure from the United States.

9

IT IS FURTHER ORDERED that Defendants shall appear before the Honorable Marsha J.

10 Pechman on November 6th, 2006, at 4:00 p.m. to show cause why the injunctions and restrains sought

11 in Plaintiffs’ motion should not be entered in the form of a preliminary injunction for the remainder of
12 this action, together with such other relief which the Court may deem appropriate. Defendants’
13 papers opposing the preliminary injunction must be filed no later than October 18th, 2006. Plaintiffs’ 14
reply may be filed no later than October 27th, 2006. Defendants’ Response shall not exceed 24 pages. 15
Plaintiffs’ Reply shall not exceed 12 pages. At the show cause hearing, each side shall have thirty 16
(30) minutes to make its presentation, including rebuttal. The Court will also consider Plaintiffs’ 17
18 Motion to Certify a Class at that time.

19

20

21

22

. . . [A]n alien inadmissible under section 212(a)(9)(C) of the Act cannot even

23

file for consent to reapply for admission to the United States until he or she has been

abroad for at least 10 years. 24

Therefore, in any case where an alien is inadmissible under section

25

212(a)(9)(C)(i) of the INA and 10 years have not elapsed since the date of the alien’s

last departure from the United States, USCIS should deny any Form I-212 requesting

26

consent to reapply for admission.

TEMPORARY RESTRAINING ORDER - 7

Case 2:06-cv-01411-MJP Document 22 Filed 10/11/2006 Page 8 of 8

1

This Order shall continue in effect until the Court issues an order on Plaintiffs’ motion for a

2 preliminary injunction.

3

Dated this 11th day of October, 2006.

4

5

6

7

A
Marsha J. Pechman United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

TEMPORARY RESTRAINING ORDER - 8

 
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1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 AURELIO DURAN GONZALES, et al., on
behalf of themselves and all others similarly 8 situated,

9

Plaintiffs,

10 v.
11 U.S. DEPARTMENT OF HOMELAND
12 SECURITY and MICHAEL CHERTOFF, Secretary of the Department of Homeland
13 Security,

14

Defendants.

15

No. C06-1411P
ORDER MODIFYING PRELIMINARY INJUNCTION

16

17

This matter comes before the Court on Defendants’ Motion to Clarify the Preliminary

18 Injunction. (Dkt. No. 30). Having considered Defendants’ motion and the fact that Plaintiffs have not

19 filed a response, and agreeing with Defendants that the Preliminary Injunction only applies to

20 members of the class certified by the Court, the Court modifies the terms of the preliminary injunction

21 entered on November 13, 2006, (see Dkt. No. 29) as follows (changes italicized):
22 IT IS HEREBY ORDERED that Defendants are enjoined from applying or enforcing
23 the policy enumerated in Part 3(A) of the Perez-Gonzales Memo against any member

24

of the class for the remainder of this action. Defendants therefore may not deny any

25

class member’s I-212 applications in the Ninth Circuit on the grounds that the

26

applicant is inadmissible under INA § 212(a)(9)(C)(i)(II) and ten years have not

elapsed since the applicant’s last departure from the United States. And defendants

ORDER MODIFYING PRELIMINARY INJUNCTION - 1

Case 2:06-cv-01411-MJP Document 34 Filed 12/19/2006 Page 2 of 2

1

may not give any legal effect to any denied I-212 applications of class members if: (a)

2

the applicant’s I-212 application was adjudicated in a USCIS District Office located

3

within the Ninth Circuit, (b) the application was denied between August 13, 2004 (the

date Perez-Gonzales was filed) and the date of this Order, and (c) the application was 4
denied on the grounds that the applicant was inadmissible under INA §

5

212(a)(9)(C)(i)(II) and ten years had not elapsed since the applicant’s last departure

6

from the United States.

7 No other section of the Court’s Order Granting Motion for Preliminary Injunction and Class
8 Certification is changed.
9
Dated this 19th day of December, 2006. 10

11

12

A

13

Marsha J. Pechman

United States District Judge 14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER MODIFYING PRELIMINARY INJUNCTION - 2

 
 Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 1 of 17

1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 AURELIO DURAN GONZALES, et al., on
behalf of themselves and all others similarly 8 situated,

9

Plaintiffs,

10 v.
11 U.S. DEPARTMENT OF HOMELAND
12 SECURITY and MICHAEL CHERTOFF, Secretary of the Department of Homeland
13 Security,

14

Defendants.

15

No. C06-1411P
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION

16

17

INTRODUCTION

18

This matter comes before the Court on Plaintiffs’ Motions for a Temporary Restraining Order

19 and Preliminary Injunction (Dkt. No. 2-1) and for Class Certification (Dkt. No. 3). On October 11,
20 2006, after a hearing, the Court issued a Temporary Restraining Order enjoining the Defendants from
21 applying or enforcing the policy that is at issue here. (Dkt. No. 22). The Court ordered the
22 Defendants to show cause why the injunction should not be extended for the remainder of this action.
23 The parties have filed additional briefs, and on October 6, 2006, a hearing was held on the order to
24
25 show cause and the question of class certification. Having reviewed the parties’ briefs and all

26

ORDER GRANTING PRELIMINARY INJUNCTION AND CLASS CERTIFICATION - 1

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1 pertinent documents and exhibits, the Court GRANTS a preliminary injunction and CERTIFIES the
2 class in this matter.
3 FINDINGS OF FACT
4 The Court finds that Plaintiffs are aliens who have filed I-212 waiver applications within the
5 jurisdiction of the Ninth Circuit in conjunction with their applications for adjustment of status under
6 the Immigration and Nationality Act (“INA”) § 245(i), 8 U.S.C. § 1255(i), prior to any final
7 8 reinstatement determination under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). Plaintiffs are
9 inadmissible under INA § 212(a)(9)(C)(i)(II) because they have been previously ordered removed and

10 have entered or attempted to reenter without being admitted. Plaintiffs’ I-212 applications have been

11 or will be denied by United States Citizenship and Immigration Services (“USCIS”) pursuant to
12 Defendants’ policy of denying I-212 applications where the applicant is inadmissible under INA §
13 212(a)(9)(C)(i) and ten years have not elapsed since the date of the applicant’s last departure from
14 the United States.
15 Defendant Department of Homeland Security (“DHS”) is an executive agency of the United
16 States. The Secretary of DHS is charged with the administration and enforcement of the INA and all
17
18 other laws relating to the immigration and naturalization of aliens. USCIS is a bureau of DHS and is
19 responsible for adjudicating immigration and naturalization applications and establishing immigration

20 services policies. Defendant Michael Chertoff is the Secretary of DHS. Plaintiffs are suing Mr.

21 Chertoff in his official capacity.

22

On August 13, 2004, the Ninth Circuit issued Perez-Gonzales v. Ashcroft, 379 F.3d 783 (9th

23 Cir. 2004). On March 31, 2006, USCIS issued an internal policy guidance entitled “Effect of Perez-
24 Gonzales v. Ashcroft on adjudication of Form I-212 applications filed by aliens who are subject to
25

26

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Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 3 of 17

1 reinstated removal orders under INA § 241(a)(5)” (“Perez-Gonzales Memo”).1 In Part 3(A) of the

2 Perez-Gonzales Memo, Defendants issued the following directive:

3 Aliens Seeking Consent to Reapply Prior to Expiration of Required 10-Year Period

4 . . . [A]n alien inadmissible under section 212(a)(9)(C) of the Act cannot

5

even file for consent to reapply for admission to the United States until he or she has

been abroad for at least 10 years.

6

Therefore, in any case where an alien is inadmissible under section

7

212(a)(9)(C)(i) of the INA and 10 years have not elapsed since the date of the

8

alien’s last departure from the United States, USCIS should deny any Form I-212

requesting consent to reapply for admission.

9 The Court finds that Defendants have applied this policy to the applications of named Plaintiffs
10
Estrada, Banuelos, and Andrade. Defendants denied each of these plaintiffs’ I-212 applications on 11

the grounds that these individuals did not qualify for consent to reapply because they are inadmissable 12

13 under INA § 212(a)(9)(C)(i) and less than ten years have passed since their last departure from the

14 United States.

15

CONCLUSIONS OF LAW

16

Plaintiffs request class certification and a preliminary injunction enjoining the Government

17 from applying the policy enumerated in the Perez-Gonzales Memo to any member of the class during
18 the remainder of this action. Plaintiffs allege that the Memo conflicts with Perez-Gonzales and is
19 unlawful. The Government contends that its policy does not conflict with Perez-Gonzales, and
20 alternatively, that Perez-Gonzales was wrongly decided and does not control here. Defendants also
21

22

23

1

In that memo, the Government disagreed with the Ninth Circuit’s decision in Perez-

24 Gonzales v. Ashcroft. The Memo describes the Government’s argument in Perez-Gonzales regarding

the interplay among the at-issue statutory and regulatory provisions, and then states that “despite this 25 statutory language, the Court in Perez-Gonzales held that an alien is entitled to a decision on a Form I-

26

212, filed before the actual reinstatement of the prior removal order, before U.S. Immigration and Customs Enforcement (ICE) can execute the reinstated order. . . . This ruling, however, is limited only

to aliens whose cases are governed by Ninth Circuit law.” (Emphasis added.)

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1 contend that the Court does not have jurisdiction and that Plaintiffs should be required to exhaust

2 their administrative remedies.

3 A. Jurisdiction

4 The Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331. Defendants argue
5 that INA § 242(f), 8 U.S.C. § 1252(f), deprives the Court of jurisdiction. But that subsection does
6
not limit or remove the Court’s jurisdiction in this matter. INA § 242(f) provides as follows: 7

8

Regardless of the nature of the action or claim or of the identity of the party or parties

bringing the action, no court (other than the Supreme Court) shall have jurisdiction or

9

authority to enjoin or restrain the operation of the provisions of part IV of this

subchapter . . . other than with respect to the application of such provisions to an

10

individual alien against whom proceedings under such part have been initiated.

11 Plaintiffs seek injunctive relief to preserve the status quo with respect to applications for adjustment
12 of status, which are governed by part V of the INA (INA § 245(i), 8 U.S.C. 1255(i)), and I-212
13 waiver applications, which relate to part II of the INA (INA § 212, 8 U.S.C. 1182). Plaintiffs do not
14 seek to directly “enjoin or restrain the operation of the provisions of part IV” of the INA.2 Moreover,
15 Plaintiffs are not seeking to enjoin the lawful application of the INA, but are seeking to enjoin
16 violations of the Act. As the Ninth Circuit explained in Ali v. Ashcroft, INA § 242(f)(1) is
17
18 inapplicable where petitioners “seek not to enjoin the operation of [the INA] but violations of the
19 statute and to ensure that the provision is properly implemented.” Ali v. Ashcroft, 346 F.3d 873, 886

20 (9th Cir. 2003), rev’d on other grounds, Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005) (internal

21 quotation marks omitted). 22

23

24

25

2

The relief sought by Plaintiffs under parts II and V of the INA, if granted, will, under

Perez-Gonzales, have the effect of impeding reinstatement proceedings under Part IV of the INA — INA 26 § 241(a)(5), 8 U.S.C. § 1231(a)(5). But that effect is one step removed from the relief sought by

Plaintiffs and therefore does not bring this action within the INA § 242(f) jurisdictional bar.

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1 B. Exhaustion

2

Defendants also argue that Plaintiffs have not exhausted their administrative remedies. But

3 Plaintiffs are not required to exhaust their administrative remedies because INA § 212(a) and 8
4 C.F.R. § 212.2 do not require an administrative appeal. See Darby v. Cisneros, 509 U.S. 137, 154
5 (1993) (“[W]here the APA applies, an appeal to ‘superior agency authority’ is a prerequisite to
6 judicial review only when expressly required by statute or when an agency rule requires appeal before
7
8 review and the administrative action is made inoperative pending that review.”); Chang v. U.S., 327

9 F.3d 911, 922 (9th Cir. 2003) (“Absent language foreclosing immediate judicial review, a district

10 court’s subject matter jurisdiction is unaffected by the availability of non-mandatory administrative

11 procedures.”). Moreover, “where [an] agency’s position on the question at issue appears already set,
12 and it is very likely what the result of recourse to administrative remedies would be, such recourse
13 would be futile and is not required.” El Rescate Legal Services, Inc. v. Executive Office of
14 Immigration Review, 959 F.2d 742, 747-48 (9th Cir. 1992). Here, exhaustion is not mandatory and
15 would be futile because Defendants have already stated, and applied in a number of cases, the policy
16 embodied in Part 3(A) of the Perez-Gonzales Memo. It is therefore unnecessary to require Plaintiffs
17
18 to exhaust their administrative remedies before bringing their claims.
19 C. Preliminary Injunction

20

In order to obtain a preliminary injunction, Plaintiffs must meet either the Ninth Circuit’s

21 “traditional” or “alternative” test. Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th

22 Cir. 1993). The traditional test requires the court to find the following:

23 (1) the moving party will suffer irreparable injury if the relief is denied; (2) the moving

24

party will probably prevail on the merits; (3) the balance of potential harm favors the

moving party; and, depending on the nature of the case, (4) the public interest favors

25

granting relief.

26

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Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 6 of 17

1 Id. (quoting Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987)). The “alternative” test requires
2 the moving party to demonstrate either (1) a combination of probable success on the merits and the
3 possibility of irreparable injury if relief is not granted; or (2) that serious questions are raised and the
4 balance of hardships tips sharply in favor of the moving party. Id. The two prongs of the alternative
5 test are not separate inquiries, but rather “extremes of a single continuum.” Clear Channel Outdoor,
6 Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003). A strong showing of hardship means
7 8 that a plaintiff need not show as strong a likelihood of success, and vice versa. Id. The Court’s
9 ultimate decision on a motion for preliminary injunction is within its discretion. See Cassim, 824 F.2d

10 at 796.

11

The statutory provisions at issue here include INA §§ 245(i), 241(a)(5), and 212(a)(9)(C).

12 INA § 245(i), 8 U.S.C. § 1255(i), allows, under certain conditions and upon the paying of a fee, an
13 alien to adjust status notwithstanding the fact that she entered without inspection, overstayed, or
14 worked without authorization and still remains in the United States. The Attorney General may
15 adjust the alien’s status to that of a lawful permanent resident if, among other things, she is
16 “admissible to the United States for permanent residence.” INA § 245(i)(2)(A). The regulations that
17
18 correspond to INA § 245 state that an applicant for adjustment of status must request permission to

19 reapply for entry in conjunction with his or her § 245(i) application. That request is made “by filing

20 an application for permission to reapply, Form I-212.” 8 C.F.R. § 212.2(e).

21

Under the “reinstatement provision,” INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), if the Attorney

22 General finds that an alien has reentered the United States illegally after having been removed or
23 having departed voluntarily under an order of removal, “the prior order of removal is reinstated from
24 its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not
25 apply for any relief under [sections 231 through 250 of the Act], and the alien shall be removed under
26
the prior order at any time after the reentry.”

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Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 7 of 17

1

INA § 212(a), 8 U.S.C. § 1182(a), outlines the classes of aliens ineligible for admission. It

2 also contains exceptions to those grounds of inadmissibility. In this case, the at-issue inadmissibility
3 provision is INA § 212(a)(9)(C)(i)(II). INA § 212(a)(9)(C)(i)(II) makes inadmissible aliens who have
4 been ordered removed and who enter or attempt to reenter without being admitted. Section
5 212(a)(9)(C) also contains an exception to this otherwise permanent ban on admissibility: an alien
6 who is otherwise inadmissible under INA § 212(a)(9)(C)(i) is admissible if, more than ten years after
7
8 the date of the alien’s last departure from the U.S., and prior to reembarkation, the Attorney General

9 consents to the alien’s reapplying for admission. INA § 212(a)(9)(C)(ii). The question here is

10 whether the Government’s authority to grant an I-212 waiver in the context of a § 245(i) application

11 is limited by the exception in INA § 212(a)(9)(C)(ii).

12

In Perez-Gonzales v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), the Ninth Circuit addressed the

13 tension among the statutory and regulatory provisions described above. In that case, the court
14 considered whether the Government erred when it denied Mr. Perez-Gonzales’ I-212 application and
15 his application for adjustment of status under INA § 245(i). Perez-Gonzales, 379 F.3d at 787-95.
16
Mr. Perez-Gonzales was inadmissible under various subsections of 212(a), including subsection 17

18 (a)(9)(C). Id. at 785 & n.3. The court held that (1) the reinstatement provision was not impermissibly

19 retroactive and therefore Mr. Perez-Gonzales would be subject to it; (2) Mr. Perez-Gonzales was not

20 yet subject to the terms of the reinstatement provision because he had applied for a discretionary

21 waiver to reapply for reentry after deportation or removal (Form I-212) pursuant to 8 C.F.R. §
22 212.2(e) before his prior deportation order was reinstated; (3) the INS erred when it rejected Mr.
23 Perez-Gonzales’ I-212 application on the grounds that he did not apply from outside the United
24 States; and (4) the INS’s error regarding the I-212 application was prejudicial because the other
25 grounds of inadmissibility at INA § 212(a) do not categorically bar an application for adjustment of
26 status. Id. at 787-95.

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1

In determining that the INS’s error was prejudicial, the court concluded that if the

2 Government approved Mr. Perez-Gonzales’ I-212 application, the approval would be retroactive, and

3 his application for adjustment of status could not be denied on the grounds of inadmissibility under
4 INA § 212(a)(9). Id. at 794. The court did not read the exception to the § 212(a)(9)(C) ban as
5 limiting the waiver available under 8 C.F.R. § 212.2(e). The court explained that the statutory
6 exception to the 212(a)(9)(C) ban on admissibility “d[id] not alter [its] analysis because it would not
7
8 cover the class of aliens under 8 C.F.R. § 212.2, who have been previously removed and are currently

9 in this country prior to seeking permission to reapply.” Id. at 794 n.10. The court therefore

10 interpreted the statutory exception at § 212(a)(9)(C)(ii) as a different exception than the exception

11 provided by the regulations invoked during a § 245(i) adjustment of status application. Therefore,

12 under Perez-Gonzales, an alien applying for an I-212 waiver under 8 C.F.R. § 212.2(e) in conjunction
13 with a § 245(i) application for adjustment of status may seek a waiver from the entirety of §
14 212(a)(9)(C), including the ten year limitation.
15 As part of the court’s reasoning, it rejected the agency’s informal guidance that stated that
16 aliens subject to § 212(a)(9)(B) and (C) of the Act “will be deemed inadmissible under that section of
17
18 the Act for purposes of adjustment of status.” Id. at 792. The court explained:

19

The statutory terms of INA § 245(i) clearly extend adjustment of status to aliens living

in this country without legal status. . . . Nothing in the statutory provisions regarding

20

adjustment of status, nor in the discussion of its purposes, suggests that aliens who have

been previously deported or removed are barred from this form of relief. 21

Id. at 793. Because the court concluded that Mr. Perez-Gonzales met the requirements for receiving 22

23 I-212 permission to reapply, it remanded to the agency for a new I-212 determination. Id. at 796. It

24 did so even though Mr. Perez-Gonzales was inadmissable under INA § 212(a)(9)(C) and had not

25 remained outside the country for more than ten years since his last departure. See id. at 796, 785.

26

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Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 9 of 17

1

The policy embodied at part 3(A) of the Perez-Gonzales Memo conflicts with the Ninth

2 Circuit’s decision in Perez-Gonzales. Although Perez-Gonzales did not explicitly state that the

3 Government may not reject an I-212 application on the grounds that an alien otherwise inadmissible
4 under INA § 212(a)(9)(C)(i) had not remained outside the United States for at least ten years prior to
5 his application, that is the necessary implication of the opinion. As explained above, Perez-Gonzales
6 strongly suggests that an applicant for adjustment of status under § 245(i) may seek a waiver from the
7
8 entirety of INA § 212(a)(9)(C), including the ten year limitation. See Perez-Gonzales, 379 F.3d at

9 794 n.10. The fact that the court remanded to the agency to reconsider Mr. Perez-Gonzales’ I-212

10 application, even though Mr. Perez-Gonzales had not been outside the country for ten years, further

11 supports the Court’s reading of Perez-Gonzales.

12

Defendants argue that Perez-Gonzales does not control here. First, Defendants argue that

13 Perez-Gonzales did not decide the precise question that is at issue here. But in Matter of Torres-
14 Garcia, the Board of Immigration Appeals (“BIA”) specifically acknowledged that Perez-Gonzales
15 decided that the statutory ten-year limitation did not limit an alien’s ability to apply for a wavier of the
16
§ 212(a)(9)(C)(i) grounds of inadmissibility. Matter of Torres-Garcia, 23 I. & N. Dec. 866, 876 17

18 (BIA 2006) (rejecting Perez-Gonzales and holding that the Government cannot waive the INA §

19 212(a)(9)(C)(ii) ten-year limitation in the context of an application for adjustment of status). Because

20 the BIA has recognized that Perez-Gonzales decided the at-issue question, the Government’s position

21 that Perez-Gonzales did not decide the question is unpersuasive.

22

Defendants also argue that the Perez-Gonzales Memo and the BIA’s decision in Matter of

23 Torres-Garcia deserve Chevron deference. Under the test explained by the Supreme Court in
24 Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984), if Congress left a
25 statutory gap and the agency has filled that gap with a reasonable interpretation of the statute, courts
26
must defer to that reasonable interpretation. Here, the Court does not need to decide whether the

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Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 10 of 17

1 Memo and BIA decision deserve deference because the Ninth Circuit decided in Perez-Gonzales that

2 Congress did not leave a statutory gap to be filled by the agency. As the court explained:

3 Chevron deference is not applicable in this case because under Chevron a court must

4

first analyze the law applying normal principles of statutory construction, and then

defer to the agency if, after performing that analysis, it concludes that the statute is

5

ambiguous or uncertain. As demonstrated in the discussion below, normal principles

of statutory construction suffice.

6

Perez-Gonzales, 379 F.3d at 786 (internal quotation marks and citations omitted). Because the Court 7

8 is bound by the Ninth Circuit’s determination that the statute is unambiguous, the Court will not give

9 Chevron deference to the Perez-Gonzales Memo or the BIA decision in Torres-Garcia.3

10

The Court concludes that, applying the Ninth Circuit’s “alternative” test, a preliminary

11 injunction is warranted in this case. Most importantly, Plaintiffs are likely to succeed on the merits of
12 their claim that the policy embodied in Part 3(A) of the Perez-Gonzales Memo conflicts with the
13 Ninth Circuit’s decision in Perez-Gonzales. Moreover, if the injunction is not entered, Plaintiffs will
14 suffer immediate and irreparable harm in the form of loss of eligibility to apply for adjustment of
15 status under INA § 245(i), and potentially reinstatement of removal orders under INA § 241(a)(5).
16 The potential harm to Plaintiffs outweighs any burden on the Government. Although the Court
17
18 agrees that this injunction may be an administrative burden on the government, and although the
19 Court recognizes that the Government has a legitimate interest in deterring aliens from repeatedly

20 entering the United States illegally, the Court does not believe that these interests outweigh the

21 interests of Plaintiffs in seeking relief under a Congressionally-enacted provision of the INA. 22

23

3

The Court recognizes that some language in Perez-Gonzales suggests that the court found

24 the statute to be ambiguous. The court stated that “[i]n the absence of a more complete agency

elaboration of how its interpretation of § 212(a)(9) can be reconciled with its own regulations, [the court] 25 must defer to the regulations rather than to the informal guidance memorandum.” Perez-Gonzales, 379

F.3d at 794. Although this statement suggests that the court considered giving deference to the agency 26 guidance, and therefore thought the statute unclear, it does not override the court’s explicit conclusion

that the statute is unambiguous and that Chevron does not apply. See id. at 786.

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1

Defendants argue that Plaintiffs have a heightened burden here because they seek to change

2 the status quo, rather than preserve it. Indeed, the Ninth Circuit has drawn a distinction between
3 “prohibitory injunctions” that preserve the status quo and “mandatory injunctions” that seek to
4 compel the non-moving party to perform an affirmative act. See Stanley v. Univ. of S. Cal., 13 F.3d
5 1313, 1320 (9th Cir. 1994). A request for a mandatory injunction “ ‘goes well beyond simply
6 maintaining the status quo pendente lite [and] is particularly disfavored.’ ” Id. (quoting Anderson v.
7
8 United States, 612 F.2d 1112, 1114 (9th Cir. 1979)). Courts should therefore deny a request for a
9 mandatory injunction “unless the facts and law clearly favor the moving party.” Id. Here, Plaintiffs

10 only seek to preserve the status quo — to stop the government from denying any I-212 applications

11 on the basis of the policy embodied in the Perez-Gonzales Memo and to stop the government from

12 giving any effect to already denied I-212 application. But even if Plaintiffs’ request could be

13 construed as seeking a mandatory injunction, because the facts and the law clearly favor Plaintiffs in
14 this action, Plaintiffs have satisfied the additional burden.
15 For these reasons, the Court GRANTS Plaintiffs’ request for a preliminary injunction.
16
D. Class Certification 17

18

Under Fed. R. Civ. P. 23(a), Plaintiffs must show that the proposed class meets the

19 prerequisites of (a) numerosity, (b) commonality, (c) typicality, and (d) adequacy of representation.

20 See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). Plaintiffs must also show that they

21 meet at least one of the requirements of Fed. R. Civ. P. 23(b). Id. at 614. Failure to adequately fulfill
22 any of Rule 23’s requirements will preclude certification of a proposed class action. Rutledge v. Elec.
23 Hose & Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975). The parties seeking certification bear the 24
burden of demonstrating that all of the requisites set forth in Fed. R. Civ. P. 23 have been met. Zinser 25
v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). 26

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1

1. Fed. R. Civ. P. 23(a)

2

a. Numerosity

3 A proposed class meets the numerosity requirement if “the class is so numerous that joinder of
4 all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Here, Plaintiffs argue that, although they
5 cannot ascertain the precise number of potential class members, they believe that there are hundreds
6 of individuals who have submitted I-212 waiver applications that have been denied or will be denied
7
8 for the same reasons outlined in the Perez-Gonzales Memo. Plaintiffs argue that the Government is

9 uniquely positioned in this case to ascertain class membership. And Plaintiffs also argue that joinder

10 is impracticable because of the geographic diversity of the class members, and the inability of the

11 individual claimants to institute separate suits.

12

Defendants argue that Plaintiffs have not met their burden of showing numerosity and that

13 they are not relieved of their burden in this situation.
14 In their reply, Plaintiffs submitted affidavits from six immigration attorneys in the Ninth
15 Circuit. Those attorneys attest to the fact that they have, collectively, at least twenty-five (25) clients
16
in California, Washington, and Idaho who have filed I-212 applications pursuant to the Ninth 17

18 Circuit’s decision in Perez-Gonzales in conjunction with an INA § 245(i) application where ten years

19 have not elapsed since their last departure from the United States.4 In addition, Plaintiffs submitted

20 an affidavit from a legal assistant at the American Immigration Law Foundation’s Legal Action

21 Center in Washington, D.C., who states that over the past two months, at least 34 immigration
22 attorneys have contacted her organization and indicated that their Ninth Circuit clients have been 23
affected by the Government’s I-212 policy that is being challenged in the instant case. 24

25

26

4

The Court only counts those individuals mentioned whose I-212 applications are soon to

be filed, are pending, or have been denied.

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1

At oral argument, Defendants argued that the Court should not consider this additional

2 evidence because it was submitted in Plaintiffs’ reply. It is true that courts disfavor submission of

3 new evidence in a reply brief. See Provenz v. Miller, 102 F.3d 1478 (9th Cir. 1996). But Defendants
4 did not file a surreply to strike the material attached to Plaintiffs’ reply brief as they could have under
5 Local Rule 7(g). Moreover, Plaintiffs’ evidence directly addresses Defendants’ argument in their
6 response that Plaintiffs had not met their burden of showing numerosity. The Court will therefore
7
8 consider the evidence.

9

Plaintiffs have provided additional evidence that shows that the proposed class will be

10 comprised of at least thirty-one (31) individuals (six named Plaintiffs plus at least twenty-five others

11 similarly situated). The Court finds that there could be many other individuals who fit into the same
12 category as the named Plaintiffs. In addition to the number of potential class members, the Court may
13 consider “the geographic diversity of class members, the ability of individual claimants to institute
14 separate suits, and whether injunctive or declaratory relief is sought.” Jordan v. Co. of Los Angeles,
15 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982). Here, the
16 named Plaintiffs live in two different states — California and Washington. Plaintiffs have also
17
18 identified additional potential class members who live in Idaho and Oregon. The Court also finds that
19 at least some individuals affected by the Perez-Gonzales Memo will have difficulty instituting their

20 own lawsuits because of financial ability, fear of challenging the Government, or a lack of

21 understanding that a cause of action exists. And the Court finds that the class will grow as individuals
22 continue to file I-212 applications. Finally, the Court notes that Plaintiffs seek injunctive and
23 declaratory relief. In such cases, courts relax the numerosity requirement. See Goodnight v. Shalala,
24 837 F. Supp. 1564, 1583 (D. Utah 1993). The Court finds that the proposed class is sufficiently
25 numerous for certification and that joinder of all of the plaintiffs in this action would be impracticable.
26

ORDER GRANTING PRELIMINARY INJUNCTION AND CLASS CERTIFICATION - 13

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1

b. Commonality

2

The commonality requirement is satisfied “if there are questions of fact and law which are

3 common to the class.” Fed. R. Civ. P. 23(a)(2). Here there are questions of law and fact common to
4 the proposed class. As Plaintiffs point out, the common facts are as follows: (1) class members are
5 eligible for adjustment of status under INA § 245(i) but for their inadmissibility under INA §
6
212(a)(9)(C)(i)(II); (2) class members filed an I-212 application before any final reinstatement 7

8 removal order under INA § 241(a)(5); (3) fewer than ten years have elapsed since the member’s last

9 departure from the United States; and (4) Defendants either have denied or will deny the class

10 members’ I-212 waiver applications. The common legal questions are whether Defendant’s policy

11 embodied in the Perez-Gonzales Memo violates Perez-Gonzales, the Immigration and Nationality
12 Act, the Fifth Amendment, the Administrative Procedures Act, and general principles of
13 administrative law. Because the named and unnamed Plaintiffs all raise the same legal and factual
14 questions, there are issues that are common to the class.
15 c. Typicality
16 The typicality requirement is satisfied if “the claims or defenses of the representative parties
17
18 are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The Ninth Circuit has
19 held that Rule 23(a)(3) should be interpreted somewhat permissively and that “representative claims

20 are ‘typical’ if they are reasonably co-extensive with those of the absent class members; they need not

21 be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1997); see also
22 Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001) (“We do not insist that the named plaintiffs’
23 injuries be identical with those of the other class members, only that the unnamed class members have
24 injuries similar to those of the named plaintiffs and that the injuries result from the same, injurious
25 course of conduct.”). Where there are common questions of law, the element of typicality is usually
26 met. See Gen Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 158 n.13 (1982). Here, the claims

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Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 15 of 17

1 of the named Plaintiffs are typical of the claims of the potential class members because they all stem

2 from the exact same legal question — whether the Government may reject an I-212 application on the

3 grounds that the applicant is inadmissible under INA § 212(a)(9)(C)(i) and ten years have not passed
4 since the applicant’s date of last departure from the United States. Moreover, the injuries here are
5 identical. In the cases of all named and potential plaintiffs, the Government has or will deny plaintiffs’
6 I-212 waivers based on the policy embodied in the Perez-Gonzales Memo and that denial will
7
8 disqualify them for adjustment of status.

9

Defendants assert that Plaintiffs cannot meet the commonality and typicality requirements

10 because “the unrepresented portion of the class has significantly different claims and remedies than

11 Named Plaintiffs.” (Response at 9). Defendants base this assertion on an assumption that class

12 members will include individuals inadmissible under INA § 212(a)(9)(C)(i)(I) as opposed to the

13 named Plaintiffs, who are all inadmissible under INA § 212(a)(9)(C)(i)(II). It is unclear why
14 Defendants have made this assumption. As Plaintiffs have explicitly stated, “Plaintiffs and all
15 proposed class members are inadmissible under INA § 212(a)(9)(C)(i)(II) for reentry after removal.”
16
(Reply at 8). 17

18

Because the claims of the named Plaintiffs are co-extensive with the legal claims of the

19 potential class members, the Court finds that the element of typicality are met.

20

d. Adequacy of Representation

21

The fourth and final prong of Rule 23(a) requires that “the representative parties will fairly

22 and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In order to satisfy this
23 prong, Plaintiffs must show that the named Plaintiffs do not have any conflicts of interest with other
24 class members and that the named Plaintiffs and counsel will vigorously prosecute the case. Hanlon,
25 150 F.3d at 1020. Here, there is no question that Plaintiffs’ counsel is experienced and well-suited to
26
provide adequate representation. But Defendants argue that Plaintiffs have not shown that the claims

ORDER GRANTING PRELIMINARY INJUNCTION AND CLASS CERTIFICATION - 15

Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 16 of 17

1 of the named Plaintiffs and potential class members are interrelated enough to assure that the interests

2 of all class members will be fairly and adequately protected. As explained above, the Court finds that

3 Defendants argument in this regard is without basis. Therefore, because there are no conflicts of

4 interest, and because Plaintiffs and their counsel have been prosecuting this action vigorously and
5 competently, the Court finds that Plaintiffs have satisfied their burden of showing adequacy of
6
representation. 7

8

2. Fed. R. Civ. P. 23(b)

9

Plaintiffs contend that this action meets the requirements of Rule 23(b)(2) — that “the party

10 opposing the class has acted or refused to act on grounds generally applicable to the class, thereby

11 making appropriate final injunctive relief or corresponding declaratory relief with respect to the class

12 as a whole.” In their response, Defendants state that they “do not contend that Plaintiffs fail to meet

13 the requirements of Rule 23(b)(2).” The Court therefore finds that Plaintiffs have met their burden in
14 this regard.
15 3. Class Definition
16
The Court hereby certifies a class in this matter to include: 17

18

(a) Individuals who are inadmissible under INA § 212(a)(9)(C)(i)(II) and have filed an

I-212 waiver application within the jurisdiction of the Ninth Circuit in conjunction

19

with their application for adjustment of status under INA § 245(i), prior to any final

reinstatement of removal determination, where USCIS denied the I-212 application

20

because 10 years had not elapsed since the date of the applicant’s last departure from

the United States; and 21

(b) Individuals who are inadmissible under INA § 212(a)(9)(C)(i)(II) and have filed or

22

will file an I-212 waiver application within the jurisdiction of the Ninth Circuit in

23

conjunction with their application for adjustment of status under INA § 245(i), prior to

any final reinstatement of removal determination, where USCIS has not yet

24

adjudicated the application but where USCIS will deny their I-212 application on the

grounds that 10 years have not elapsed since the date of the applicant’s last departure

25

from the United States.

26

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Case 2:06-cv-01411-MJP Document 29 Filed 11/13/2006 Page 17 of 17

1

CONCLUSION

2

For these reasons, the Court GRANTS Plaintiffs’ Motion to Certify a Class. Moreover, IT IS

3 HEREBY ORDERED that Defendants are enjoined from applying or enforcing the policy enumerated
4 in Part 3(A) of the Perez-Gonzales Memo against any member of the class for the remainder of this
5 action. Defendants therefore may not deny any I-212 applications in the Ninth Circuit on the grounds
6 that the applicant is inadmissible under INA § 212(a)(9)(C)(i) and ten years have not elapsed since the
7
8 applicant’s last departure from the United States. And defendants may not give any legal effect to

9 any denied I-212 applications if: (a) the applicant was in the Ninth Circuit at the time of his or her

10 application, (b) the application was denied between August 13, 2004 (the date Perez-Gonzales was

11 filed) and the date of this Order, and (c) the application was denied solely on the grounds that the

12 applicant was inadmissible under INA § 212(a)(9)(C)(i) and ten years had not elapsed since the

13 applicant’s last departure from the United States.
14 The preliminary injunction shall continue in effect until the Court issues a final judgment in
15 this action.
16
Dated this 13th day of November, 2006. 17

18 19

A

Marsha J. Pechman

20

United States District Judge

21

22

23

24

25

26

ORDER GRANTING PRELIMINARY INJUNCTION AND CLASS CERTIFICATION - 17

 
 Honorable Marsha J. Pechman 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 7

AURELIO DURAN GONZALEZ, et al., 8
Plaintiffs, 9
v. 10
U.S. DEPARTMENT OF HOMELAND 11 SECURITY and JANET NAPOLITANO,
Secretary of the Department of Homeland 12 Security,

NO. C06-1411MJP
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

13

Defendants.

14

This matter comes before the Court on Plaintiffs’ motion for provisional class

15 certification, temporary restraining order, and preliminary injunction. (Dkt. No. 47.) For the
16 reasons set forth below, the Court GRANTS IN PART Plaintiffs’ motion.
17

18

On January 23, 2009 at 3:53 p.m. (PST), the Ninth Circuit issued its mandate in the above

19 captioned matter. (Case No. 07-35021.) A few minutes later, at 4:00 p.m., this Court heard

20 telephonic argument on Plaintiffs’ motion. At argument counsel for both parties agreed that,

21 absent a TRO, certain class members may risk deportation. The Court asked counsel for time to
22 review the Plaintiffs’ motion, Defendants’ response, and Plaintiffs’ reply. (See Dkt. Nos. 47, 49, 23
52.) Counsel for Government was unwilling to provide any assurances that it would not proceed 24
with adjudicating class members’ pending I-212 applications until after the Court had time to 25
review the materials. In light of the irreparable harm Plaintiffs would endure and complex nature

1 of the issues presented, the Court believes a TRO is necessary for the careful and effective 2 adjudication of this dispute.

3

It is HEREBY ORDERED as follows:

4

1. Plaintiffs’ motion (Dkt. No. 47) is GRANTED IN PART. The Court reserves ruling

5

on Plaintiffs’ request for class certification and preliminary injunction.

6 2. Defendants may not, with respect to any member of the class, (a) deny any pending I-
7 212 waiver applications or (b) give legal effect to any denied I-212 waiver application,
8

9

including treating as any denial as a final administrative decision.

10

3. The Court makes no ruling on Plaintiffs’ motion to amend the class. The class

11

continues to be defined by the Court’s Order granting class certification and

12

preliminary injunction. (Dkt. No. 29.)

13

The clerk is directed to transmit a copy of this order to all counsel of record.

14 DATED this 23rd day of January, 2009.
15

16 17

A

18

Marsha J. Pechman

United States District Judge

19

20

21

22

23

24

25

 
 1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

9 Aurelio DURAN GONZALEZ, et al.,

10
11
v.
12

Plaintiffs,

13 U.S. DEPARTMENT OF HOMELAND SECURITY and Janet NAPOLITANO,
14 Secretary of the Department of Homeland 15 Security,

Case No. C06-1411-MJP
ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

16
Defendants.
17

18

This matter comes before the Court on Plaintiffs’ first amended motion for provisional class

19 certification, temporary restraining order, and preliminary injunction. (Dkt. No. 47.) The Court has
20
reviewed Plaintiffs’ motion, Defendants’ response (Dkt. No. 49), Plaintiffs’ reply (Dkt. No. 52), and
21
all other pertinent documents in the record. On January 23, 2009, this Court granted in part
22
23 Plaintiffs’ motion for a temporary restraining order. (Dkt. No. 53.) Upon a closer examination of

24 the law and facts of this case, the Court now DENIES Plaintiffs’ motion for a preliminary injunction.

25

Background

26
On September 28, 2006, Plaintiffs filed a complaint alleging that Defendants’ internal
27
policies ran counter to the Ninth Circuit decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th
28

Cir. 2004). (Compl. at ¶ 1.) At the time, Defendants had instructed its immigration officers to deny

ORDER - 1

1 applications for “Permission to Reapply for Admission After Deportation or Removal” (hereinafter
2 “I-212 application”) where ten years had not passed since the applicant’s last departure. (Id. at ¶ 2.)
3
There are several statutory provisions at issue in Plaintiffs’ complaint. First, INA § 245(i), 8
4
5 U.S.C. § 1255(i) allows an alien to adjust his status notwithstanding the fact that he entered without
6 inspection, overstayed, or worked without authorization and remains in the United States. Under §

7 245(i)(2)(A), the Attorney General has the authority to adjust an alien’s status where that alien is
8
admissible for permanent residence. The corresponding regulations state that an applicant for
9
readjustment must request permission to reapply for entry using a Form I-212. See 8 C.F.R. §
10
11 212.2(e). Second, INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), provides that where the Attorney

12 General finds an alien who reenters illegally after removal or voluntary departure pursuant to an

13 order of removal, the original order of removal is reinstated from its original date and the alien is not
14
eligible for several types of relief, including under § 245(i). Third, INA § 212(a), 8 U.S.C.
15
§ 1182(a), delineates the classes of aliens who are ineligible for admission and provides exceptions
16
17 to those classes. INA § 212(a)(9)(C)(i)(II) sets forth the general rule that aliens who have been

18 ordered removed and who reenter are inadmissible. However, INA § 212(a)(9)(C)(ii) provides that

19 an alien who is otherwise inadmissible under § 212(a)(9)(C)(i) is admissible if, more than ten years
20
after the date of the alien’s last departure and prior to re-embarkation, the Attorney General consents
21
22 to the alien’s reapplication.

23

The question presented by Plaintiffs’ complaint is whether the exception codified in

24 § 212(a)(9)(C)(ii) limits the Government’s authority to grant an I-212 waiver in the context of a
25
§ 245(i) application. In Perez-Gonzalez v. Ashcroft, the Ninth Circuit considered the tension
26
between the provisions where the government denied an I-212 application and application for
27
28 adjustment of status under § 245(i). 379 F.3d 783, 788-791 (9th Cir. 2004). Though Mr. Perez-

ORDER - 2

1 Gonzalez was inadmissible under § 212(a)(9)(C), the court held the INS erred when it rejected his I-
2 212 application on the grounds that he did not apply from outside the United States. Id. at 789-90.
3
In so holding, the court disagreed with the INS’s interpretation of the relevant statutes and found that
4
5 the alien who illegally reentered was not barred from seeking status adjustment by the statute that
6 reinstated prior orders of deportation. Id.

7

Following the decision, the INS issued an internal memorandum that conflicted with the

8
Ninth Circuit’s holding in Perez-Gonzalez. (See Dkt. No. 22, Ex. 2) Relying on the Board of
9
Immigration Appeals’ decision In re Torres Garcia, 23 I & N Dec. 866, 873 (BIA 2006), the
10

11 memorandum directed field officers that an alien inadmissible under § 212(a)(9)(C) could not file for

12 consent to reapply until that alien had lived abroad for 10 years. (Id.) Plaintiffs filed suit to

13 challenge that memorandum and this Court granted a preliminary injunction based on Plaintiffs’
14
likely success on the merits of its claim. (See Dkt. No. 29.) The Court also certified a class defined
15
as:
16

17

(a) Individuals who are inadmissible under INA § 212(a)(9)(C)(i)(II) and have filed

an I-212 waiver application within the jurisdiction of the Ninth Circuit in

18

conjunction with their application for adjustment of status under INA § 245(i),

prior to any final reinstatement of removal determination, where USCIS denied

19

the I-212 application because 10 years had not elapsed since the date of the

20

applicant’s last departure from the United States; and

(b) Individuals who are inadmissible under INA § 212(a)(9)(C)(i)(II) and have filed

21

or will file an I-212 waiver application within the jurisdiction of the Ninth Circuit

22

in conjunction with their application for adjustment of status under INA § 245(i), prior to any final reinstatement of removal determination, where USCIS has not

23

yet adjudicated the application but where USCIS will deny their I-212 application

on the grounds that 10 years have not elapsed since the date of the applicant’s last

24

departure from the United States.

25

26 (Dkt. No. 29 at 16.) The Court enjoined Defendants from applying or enforcing a part of the

27 challenged memorandum against members of the class. (Dkt. No. 34 at 1.) Defendants appealed the
28
Court’s order granting a preliminary injunction.

ORDER - 3

1

On November 30, 2007, the Ninth Circuit vacated this Court’s preliminary injunction based

2 on the Supreme Court’s holding in National Cable & Telecommunications Ass’n v. Brand X Internet
3
Services. Duran Gonzalez v. Dept. of Homeland Security, 508 F.3d 1227, 1235 (9th Cir.
4
5 2007)(citing Brand X, 545 U.S. 967 (2005)) In Brand X, the Supreme Court held that courts must

6 apply Chevron deference to an agency’s interpretation of a statute “regardless of a circuit court’s

7 prior precedent, provided that the court’s earlier precedent was an interpretation of statutory
8
ambiguity.” Id. at 1235-36 (citing Brand X). After determining that Perez-Gonzalez had indeed
9
involved the interpretation of an ambiguous statute, the court determined that the agency’s statutory
10
11 interpretation in Torres-Garcia was reasonable and entitled to Chevron deference. Torres-Garcia

12 provided that an alien who reentered without permission became permanently inadmissible under

13 § 212(a)(9)(C)(i)(II) and was ineligible to seek a I-212 waiver because he had not complied with the
14
10 year exception codified in § 212(a)(9)(C)(ii). See 23 I & N Dec. at 873. The opinion specifically
15
found that “the very concept of retroactive permission to reapply for admission, i.e., permission
16
17 requested after unlawful reentry, contradicts the clear language of section 212(a)(9)(C), which in its

18 own right makes unlawful reentry after removal a ground of inadmissibility that can only be waived

19 after the passage of 10 years.” Id. at 874-75 (citations omitted). The Ninth Circuit’s opinion in this

20
matter provided:
21

22

Pursuant to In re Torres-Garcia, plaintiffs as a matter of law are not eligible to readjust their status because they are ineligible to receive I-212 waivers.

23

Accordingly, the plaintiffs have no likelihood of success on the merits of their suit,

and the preliminary injunction is vacated.

24

25
Duran Gonzalez, 508 F.3d at 1242. On January 16, 2009, more than a year after issuing its written
26
opinion, the Ninth Circuit denied Plaintiffs’ motion for rehearing en banc. The court issued its
27
28 mandate at 3:53 p.m. on January 23, 2009. See Case No. 07-35021. In anticipation of the mandate,

ORDER - 4

1 Plaintiffs filed the present motion. (See Dkt. No. 47.) At 4:00 p.m. on January 23, 2009, the Court
2 heard argument on Plaintiffs’ motion. Having re-acquired jurisdiction over the matter only minutes
3
before the hearing, the Court asked counsel for time to review the supporting material. Because
4
5 counsel for Defendants was unwilling to provide assurances that the Government would not proceed
6 with adjudicating class members’ applications until after the Court reviewed the materials, the Court

7 granted Plaintiffs’ request for a temporary restraining order. (Dkt. No. 53.) The Court found that
8
Plaintiffs were entitled to a TRO in light of the permanent harm they would suffer if their
9
applications were processed before the Court could analyze the merits of Plaintiffs’ legal arguments.
10
11 Pursuant to Fed. R. Civ. P. 65(b)(2), the TRO expires on Friday, February 6, 2009. After reviewing

12 the parties’ submissions, the Court heard additional argument on February 2, 2009. First, Plaintiffs

13 ask the Court to provisionally certify a modified class. Second, Plaintiffs ask the court to grant a

14
preliminary injunction preventing Defendants from denying pending I-212 applications.
15
Discussion
16

17

Plaintiffs present a variety of challenges to the retroactive application of the judicial and

18 agency decisions at issue. They seek an injunction to prevent the retroactive application of Duran

19 Gonzalez and other related decisions.

20
I. Preliminary Injunction Standard
21

22

In order to obtain a preliminary injunction, Plaintiffs must satisfy either the Ninth Circuit’s

23 “traditional” or “alternative” test. See Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822

24 (9th Cir. 1993). The traditional test is satisfied when:

25
(1) the moving party will suffer irreparable injury if the relief is denied; (2) the

26

moving party will probably prevail on the merits; (2) the balance of potential harm

favors the moving party; and depending on the nature of the case, (4) the public

27

interest favors granting relief.

28

ORDER - 5

1 Id. (citing Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987)). The alternative test requires a

2 moving party to demonstrate either:

3

(1) a combination of probable success on the merits and the possibility of irreparable

4

injury if relief is not granted; or (2) the existence of serious questions going to the

5

merits and that the balance of hardships tips strongly in its favor.

6 Id. The two aspects of the alternative test are not separate inquiries, but rather opposite ends of a

7 single spectrum. See Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th

8
Cir. 2003). The Court will begin its analysis by evaluating the merits of Plaintiffs’ challenge.
9
II. Likelihood of Success on the Merits
10

11

Plaintiffs argue that they raise substantial questions as to whether Brand X, Torres-Garcia, or

12 Duran Gonzalez can be applied retroactively. The Court examines each contention in turn to

13 determine whether there are serious questions on the merits.
14
a. Retroactivity challenge to Brand X
15
First, Plaintiffs argue that Brand X raises special retrospectivity issues because it involves an
16
17 agency’s interpretation of a statute. (Dkt. No. 47 at 10-12.) As the Court reads the motion,

18 Plaintiffs suggest that agencies lack the power to execute the “declaratory function” inherent in

19 judicial interpretations of statutes. (Id. at 10.) However, Brand X does not allow agencies to usurp
20
the judicial declaratory function. Rather, it provides that agency interpretations are entitled to
21
22 Chevron deference. See Brand X, 545 U.S. at 985. In other words, Article III courts still have the
23 final say as to how federal statutes should be interpreted. While Plaintiffs are correct in observing a

24 factual distinction between traditional statutory interpretation and interpretation based on deference
25
to an agency, they fail to demonstrate why this distinction compels a court to depart from the
26
traditional presumption of retroactivity. See 18 Moore’s Federal Practice § 134.06[2] (“In general,
27
28 judicial decisions that are to be given binding precedential effect are retroactive in the sense that they

ORDER - 6

1 apply as precedent to all future cases, including cases pending at the time the precedent was

2 created.”) The Court does not believe that Plaintiff is likely to succeed on the merits of this

3
argument.
4

5

b. Retroactivity challenge to Torres-Garcia

6

Second, Plaintiffs assert that Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir.

7 1982), enables them to challenge the applicability of the agency’s interpretation of the statute to
8
those who filed their I-212 applications in reliance on Perez-Gonzalez. (Dkt. No. 47 at 16-17.) In
9
Montgomery Ward, the Ninth Circuit articulated a test to determine the retroactive application of an
10
11 agency’s own adjudicatory decision. 691 F.2d at 1333. Based on this test, Plaintiffs argue that the

12 BIA’s decision in Torres-Garcia cannot be applied retroactively to those individuals who filed I-212

13 applications in the time frame between Perez-Gonzalez and Torres-Garcia. (Dkt. No. 47 at 17.)
14
Defendants simply ignore this argument and fail to address Montgomery Ward in their response.
15
Nevertheless, Plaintiffs’ argument fails in light of the plain language of the Ninth Circuit’s opinion
16
17 in this matter. The Circuit Court stated conclusively that the BIA’s interpretation of the statute

18 applied to Plaintiffs. See Duran Gonzalez, 508 F.3d at 1242 (“[W]e hold today that we are bound by

19 the BIA’s interpretation of the applicable statutes in In re Torres-Garcia . . . ”). The retroactive

20
application of Torres Garcia is simply not an open question before this Court.
21

22

c. Retroactivity challenge to Duran Gonzalez

23

Third, Plaintiffs suggest that the Ninth Circuit’s silence on the retroactivity of its own

24 decision raises the possibility it should be given purely-prospective effect. (Dkt. No. 47 at 13.) The
25
Supreme Court has held that when it “applies a rule of federal law to the parties before it, that rule is
26
the controlling interpretation of federal law and must be given full retroactive effect in all cases still
27
28 open on direct review.” Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993)(citations

ORDER - 7

1 omitted). The only exception arises when the court expressly reserves or addresses the question of

2 retrospective application. Id. at 97-98. Contrary to Plaintiffs’ argument, the Ninth Circuit’s silence
3
on the retroactivity of its decision requires this Court to assume that it carries full retrospective
4
5 effect.

6

Plaintiffs’ analogies to George v. Camacho, 119 F.3d 1393 (9th Cir. 1997), and Zazueta-

7 Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2003), do not support their argument. In George, the
8
Ninth Circuit decided it would not apply a newly announced interpretation of the Federal Rules of
9
Appellate Procedure retrospectively. 119 F.3d at 1400-01. Applying the test presented in Chevron
10
11 Oil,1 the court determined it would be inequitable to bar the appellant from presenting her case

12 where she had relied on a previous Ninth Circuit opinion announcing the deadline to file an appeal

13 from the Northern Mariana Islands. Id. at 1401 (citing Chevron Oil Co v. Huson, 404 U.S. 97, 106-
14
07(1971)). George is distinguishable because the court that announced the new procedural rule was
15
also the one that decided to apply it prospectively. This Court did not announce Duran Gonzalez
16
17 and must therefore abide by the presumption that it carries retroactive effect. Harper, 509 U.S. at

18 97-98. In Zazueta-Carrillo, the court analyzed retroactivity in the context of a statutory change that
19 altered its jurisdiction. 322 F.3d at 1172. The retroactivity concerns in that case were different
20
because it analyzed a statutory shift and legislative action is presumptively prospective. Unlike the
21
22 situation in Zazueta-Carrillo, there is no suggestion that there have been any legislative changes to
23 the applicable statutes in this matter.

24

Ultimately, Plaintiffs paint the issue of retrospectivity with too broad a brush stroke. This

25
Court is bound by the plain language of the Ninth Circuit’s opinion and cannot stay the mandate of
26

27
1 The Court is aware that the Supreme Court has repudiated Chevron Oil. See Harper, 509 U.S. at 96-97
28
(suggesting a “ban against the ‘selective application of new rules.’”).

ORDER - 8

1 that court. The Court finds that Plaintiffs’ fail to raise serious questions on the merits of their

2 retroactivity challenge. Because the Court finds that Plaintiffs have not presented a likelihood of
3
success on the merits, it need not analyze the other factors required for injunctive relief. See Int’l
4
5 Jensen, 4 F.3d at 822.

6

Conclusion

7

The Court is acutely aware of the harm Plaintiffs are likely to bear as a result of its decision.

8
Nevertheless, the opinion of the Ninth Circuit in this matter precludes Plaintiffs from challenging its
9
retrospective application. Accordingly, Plaintiffs’ motion for provisional class certification and
10

11 injunctive relief is DENIED IN PART. The Court reserves the issue of class amendment until

12 Plaintiffs’ motion to amend class certification (Dkt. No. 46) is fully briefed. It is SO ORDERED.

13

The Clerk is directed to send a copy of this order to all counsel of record.

14

15
Dated this 6th day of February, 2009.
16

17

18 19

A

Marsha J. Pechman

20

United States District Judge

21

22

23

24

25

26

27

28

ORDER - 9

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7

8

Aurelio DURAN GONZALEZ, et al.,

Case No. C06-1411MJP

9

10

vs.

Plaintiffs,

11

U.S. DEPARTMENT OF HOMELAND SECURITY and JANET

12

NAPOLITANO, Secretary of the

Department of Homeland Security,

13 Defendants.
14

ORDER ON PLAINTIFFS’ MOTION TO AMEND CLASS CERTIFICATION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

15

This matter comes before the Court on Plaintiffs’ motions for leave to file an amended

16 complaint and to amend and redefine class. (Dkt. Nos. 45, 46.) The Court has considered the

17 motions, the responses (Dkt. Nos. 60, 61), the replies (Dkt. No. 62, 63.), and all other pertinent

18 documents in the record. For the reasons set forth below, the Court DENIES Plaintiffs’ motions.

19

Background

20

On September 28, 2006, Plaintiffs filed a complaint alleging that Defendants’ internal

21 policies ran counter to the Ninth Circuit decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783
22 (9th Cir. 2004). (Compl. at ¶ 1.) At the time, Defendants had instructed its immigration
23 officers to deny applications for “Permission to Reapply for Admission After Deportation or
24 Removal” (hereinafter “I-212 application”) where ten years had not passed since the
25 applicant’s last departure. (Id. at ¶ 2.)

ORDER - 1

1

There are several statutory provisions at issue in Plaintiffs’ complaint. First, INA §

2 245(i), 8 U.S.C. § 1255(i) allows an alien to adjust his status notwithstanding the fact that he

3 entered without inspection, overstayed, or worked without authorization and remains in the
4 United States. Under § 245(i)(2)(A), the Attorney General has the authority to adjust an
5 alien’s status where that alien is admissible for permanent residence. The corresponding
6 regulations state that an applicant for readjustment must request permission to reapply for
7 entry using a Form I-212. See 8 C.F.R. § 212.2(e). Second, INA § 241(a)(5), 8 U.S.C. §
8 1231(a)(5), provides that where the Attorney General finds an alien who reenters illegally
9 10 after removal or voluntary departure pursuant to an order of removal, the original order of
11 removal is reinstated from its original date and the alien is not eligible for several types of
12 relief, including under § 245(i). Third, INA § 212(a), 8 U.S.C. § 1182(a), delineates the

13 classes of aliens who are ineligible for admission and provides exceptions to those classes.

14 INA § 212(a)(9)(C)(i)(II) sets forth the general rule that aliens who have been ordered

15 removed and who reenter are inadmissible. However, INA § 212(a)(9)(C)(ii) provides that an
16 alien who is otherwise inadmissible under § 212(a)(9)(C)(i) is admissible if, more than ten
17 years after the date of the alien’s last departure and prior to re-embarkation, the Attorney 18
General consents to the alien’s reapplication. 19
The question presented by Plaintiffs’ complaint is whether the exception codified in 20
§ 212(a)(9)(C)(ii) limits the Government’s authority to grant an I-212 waiver in the context of 21
a § 245(i) application. In Perez-Gonzalez v. Ashcroft, the Ninth Circuit considered the 22 23 tension between the provisions where the government denied an I-212 application and
24 application for adjustment of status under § 245(i). 379 F.3d 783, 788-791 (9th Cir. 2004).

25 Though Mr. Perez-Gonzalez was inadmissible under § 212(a)(9)(C), the court held the INS

erred when it rejected his I-212 application on the grounds that he did not apply from outside

ORDER - 2

1 the United States. Id. at 789-90. In so holding, the court disagreed with the INS’s

2 interpretation of the relevant statutes and found that the alien who illegally reentered was not

3 barred from seeking status adjustment by the statute that reinstated prior orders of deportation.
4 Id.
5 Following the decision, the INS issued an internal memorandum that conflicted with
6 the Ninth Circuit’s holding in Perez-Gonzalez. (See Dkt. No. 22, Ex. 2) Relying on the
7 Board of Immigration Appeals’ decision In re Torres-Garcia, 23 I & N Dec. 866, 873 (BIA
8 2006), the memorandum directed field officers that an alien inadmissible under § 212(a)(9)(C)
9 10 could not file for consent to reapply until that alien had lived abroad for 10 years. (Id.)
11 Plaintiffs filed suit to challenge that memorandum and this Court granted a preliminary
12 injunction based on Plaintiffs’ likely success on the merits of its claim. (See Dkt. No. 29.)

13 The Court also certified a class defined as:

14

(a) Individuals who are inadmissible under INA § 212(a)(9)(C)(i)(II) and have

filed an I-212 waiver application within the jurisdiction of the Ninth Circuit

15

in conjunction with their application for adjustment of status under INA §

245(i), prior to any final reinstatement of removal determination, where

16

USCIS denied the I-212 application because 10 years had not elapsed since

17

the date of the applicant’s last departure from the United States; and (b) Individuals who are inadmissible under INA § 212(a)(9)(C)(i)(II) and have

18

filed or will file an I-212 waiver application within the jurisdiction of the

Ninth Circuit in conjunction with their application for adjustment of status

19

under INA § 245(i), prior to any final reinstatement of removal

determination, where USCIS has not yet adjudicated the application but

20

where USCIS will deny their I-212 application on the grounds that 10 years

have not elapsed since the date of the applicant’s last departure from the

21

United States.

22 23 (Dkt. No. 29 at 16.) The Court enjoined Defendants from applying or enforcing a part of the 24 challenged memorandum against members of the class. (Dkt. No. 34 at 1.) Defendants

25 appealed the Court’s order granting a preliminary injunction.

ORDER - 3

1

On November 30, 2007, the Ninth Circuit vacated this Court’s preliminary injunction

2 based on the Supreme Court’s holding in National Cable & Telecommunications Ass’n v.

3 Brand X Internet Services. Duran Gonzalez v. Dept. of Homeland Security, 508 F.3d 1227,
4 1235 (9th Cir. 2007) (citing Brand X, 545 U.S. 967 (2005)). In Brand X, the Supreme Court
5 held that courts must apply Chevron deference to an agency’s interpretation of a statute
6 “regardless of a circuit court’s prior precedent, provided that the court’s earlier precedent was
7 an interpretation of statutory ambiguity.” Id. at 1235-36 (citing Brand X). After determining
8 that Perez-Gonzalez had indeed involved the interpretation of an ambiguous statute, the court
9 10 determined that the agency’s statutory interpretation in Torres-Garcia was reasonable and
11 entitled to Chevron deference. Torres-Garcia provided that an alien who reentered without
12 permission became permanently inadmissible under § 212(a)(9)(C)(i)(II) and was ineligible to

13 seek a I-212 waiver because he had not complied with the 10 year exception codified in §

14 212(a)(9)(C)(ii). See 23 I & N Dec. at 873. The BIA opinion specifically found:

15

the very concept of retroactive permission to reapply for admission, i.e.,

permission requested after unlawful reentry, contradicts the clear language of

16

section 212(a)(9)(C), which in its own right makes unlawful reentry after

17

removal a ground of inadmissibility that can only be waived after the passage of 10 years.”

18 Id. at 874-75 (citations omitted). The Ninth Circuit’s opinion in this matter provided:

19

[W]e vacate the district court’s order because we hold today that we are bound

20

by the BIA’s interpretation of the applicable statutes in In re Torres-Garcia,

even though that interpretation differs from our prior interpretation in Perez-

21

Gonzalez. Pursuant to In re Torres-Garcia, plaintiffs as a matter of law are not

eligible to readjust their status because they are ineligible to receive I-212

22

waivers. Accordingly, the plaintiffs have no likelihood of success on the

23

merits of their suit, and the preliminary injunction is vacated.

24 Duran Gonzalez, 508 F.3d at 1242. On January 16, 2009, more than a year after issuing its

25 written opinion, the Ninth Circuit denied Plaintiffs’ motion for rehearing en banc.

ORDER - 4

1

Plaintiffs filed a motion for a temporary restraining order and preliminary injunction

2 in anticipation of the Ninth Circuit’s mandate. (Dkt. No. 47.) At the same time, Plaintiffs

3 filed the present motions. (Dkt. Nos. 45, 46.) In their motion for injunctive relief, Plaintiffs
4 argued that it was unclear whether the Ninth Circuit’s decision in this matter should carry
5 retroactive effect. (Dkt. No. 47 at 13.) In other words, Plaintiffs argued that the Ninth
6 Circuit’s adoption of Torres-Garcia should only apply prospectively, and not to the parties
7 before the Court. After initially granting Plaintiffs’ request for a TRO, this Court denied the
8 motion for a preliminary injunction. (Dkt. Nos. 53, 59.) The Court found that Plaintiff could
9 10 not demonstrate a likelihood of success on the merits in challenging the retroactive effect of
11 Brand X, Torres-Garcia, or Duran Gonzalez. (Dkt. No. 59 at 6-9.) In denying the injunction,
12 this Court stated “the Ninth Circuit’s silence on the retroactivity of its decision requires this

13 Court to assume that it carries full retrospective effect.” (Id. at 8.)

14

Discussion

15

First, Plaintiffs move to amend their complaint to add retroactivity challenges. Second,

16 Plaintiffs ask the Court to decrease the size of the class to enable its retroactivity challenges.

17 I. Motion for Leave to File Amended Complaint

18

Pursuant to Fed. R. Civ. P. 15(a)(2), a district court may grant a plaintiff leave to file an

19 amended pleading “when justice so requires.” Though the Court must grant leave liberally, it

20 may be denied where amendment would be futile. Forman v. Davis, 371 U.S. 178, 182 (1962)

21 (absent compelling reason, such as the “futility of amendment,” leave should be granted);

22 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (citations omitted)

23 (affirming denial of leave where amendment would not save a complaint). Defendants argue,

24 and the Court agrees, that amending the complaint would be futile. (Dkt. No. 61 at 5.)

25

Plaintiffs’ original complaint asserted claims for (1) failure to adhere to precedent, (2)

violations of the INA, (3) violations of the APA, and (4) relief under the Mandamus Act.

ORDER - 5

1 (Compl. ¶¶ 30-39.) Plaintiffs’ proposed amended complaint asserts claims for (1) the improper

2 retroactive application of Duran Gonzalez and (2) the improper retroactive application of Torres-

3 Garcia. (Dkt. No. 45-2 at ¶¶ 33-36.) In essence, Plaintiffs seek to challenge the applicability of

4 the Ninth Circuit’s decision in this matter to its own class members. (Dkt. No. 45 at 2 (“the new

5 rules in Duran-Gonzalez cannot be applied retroactively to class members . . .”).) As the Court

6 has already explained in the Order denying injunctive relief, judicial decisions have a

7 presumptively retroactive effect. (Dkt. No. 59 at 7 (citing Harper v. Virginia Dept. of Taxation,

8 509 U.S. 86, 93 (1993)).) Plaintiffs’ are mistaken to construe the Ninth Circuit’s silence on the

9 issue of retroactivity as an indication the decision should only carry prospective effect. Because

10 the issue of retroactivity is “simply not an open question before this Court,” it would be futile for

11 Plaintiffs’ to amend their complaint at this time. (Id. at 7.)

12 II. Motion to Amend and Redefine Class

13

A class certification order may be amended prior to entry of a final judgment. Fed. R.

14 Civ. P. 23(c)(1)(C). Class modification may be appropriate “in light of subsequent developments

15 in the litigation.” Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982). Plaintiffs

16 seek to modify the class so it “consists only of those who filed I-212 applications before the

17 Duran-Gonzalez decision, and does not include those who either filed after that date, or who

18 have not yet filed (as the current class definition does).” (Dkt. No. 62 at 3.) Plaintiffs propose

19 that modification is appropriate to allow the putative class to assert a retroactivity challenge.

20 (Dkt. No. 62 at 2.) However, the Court has already ruled on the merits of that challenge and is

21 bound by the Ninth Circuit’s ruling that all class members “as a matter of law are not eligible to

22 adjust their status because they are ineligible to receive I-212 waivers.” Duran Gonzalez, 508

23 F.3d at 1242. In other words, the developments in this matter since certification preclude

24 modification because Plaintiffs’ ultimate relief is unavailable.

25 III. Further Proceedings

ORDER - 6

1

Plaintiffs’ two motions were the only two questions remaining before the Court. The

2 facts of this case are not in dispute and the legal questions have been resolved in the Court’s

3 Order denying injunctive relief. (Dkt. No. 59.) Plaintiffs and Defendants agree that there are no

4 legal questions remaining upon resolution of these motions. (See Dkt. No. 63 at 2.) Because

5 there are no remaining issues for consideration, the Court will enter judgment for Defendants

6 upon entry of this Order.

7

Conclusion

8

The Court is cognizant of the harm Plaintiffs bear as a result of the Order denying

9 injunctive relief. However, Plaintiffs’ redress lies in appeal, not in class modification or in an

10 amended complaint. The Court therefore DENIES Plaintiffs’ motion to amend their

11 complaint and DENIES Plaintiffs’ motion for class modification. (Dkt. Nos. 45, 46.)

12

The Clerk is directed to transmit a copy of this Order to all counsel of record.

13

14 DATED this 27th day of February, 2009.

15 16

A

Marsha J. Pechman

17

United States District Judge

18

19

20

21

22

23

24

25

ORDER - 7

 
 CasCe:a0s9e-23:50167-4cv-01401/215-/M20JP11 DoIcDu:m79e4n0t 47867 FiDlekdtE1n0t/r2y5:/511-1PagPea1geo:f119of 19

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

⎫ AURELIO DURAN GONZALES; MARIA

C. ESTRADA; MARIA LUISA

MARTINEZ DE MUNGUIA; IRMA

PALACIOS DE BANUELOS; LUCIA

MUNIZ DE ANDRADE; KARINA NORIS; ADRIANA POUPARINA,

No. 09-35174

⎬ Plaintiffs-Appellants, v.

D.C. No. 2:06-cv-01411-MJP

U.S. DEPARTMENT OF HOMELAND

OPINION

SECURITY and J ANET 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 October 25, 2011
Before: William C. Canby, Jr., Barry G. Silverman, and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan

19299

CasCe:a0s9e-23:50167-4cv-01401/215-/M20JP11 DoIcDu:m79e4n0t 47867 FiDlekdtE1n0t/r2y5:/511-1PagPea2geo:f219of 19
19302 GONZALES v. U.S. D EP’T OF HOMELAND SECURITY
COUNSEL Matt Adams (argued), Northwest Immigration Rights Project, of Seattle, Trina Realmuto, Beth Werlin, American Immigration Law Foundation of Washington D.C., Marc Van Der Hout, Stacy Tolchin, Van Der Hout, Brigagliano & Nightingale of San Francisco, for the plaintiffs-appellants. Tony West, Assistant Attorney General, David J. Kline, Elizabeth J. Stevens (argued), and Sherease Pratt, of Washington, D.C., for the defendants-appellees.
OPINION CALLAHAN, Circuit Judge:
Aurelio Duran Gonzalez, along with six individuals (“Plaintiffs”), voluntarily filed applications for adjustment of status, thus disclosing that they were aliens who had been removed and had reentered the United States without inspection. They did this in reliance on the Ninth Circuit’s opinion in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), wherein the court purportedly held that individuals like Plaintiffs were eligible for relief. The district court certified Plaintiffs’ proposed class and issued a preliminary injunction.
The government appealed, and in Duran Gonzales v. Department of Homeland Security , 508 F.3d 1227 (9th Cir.

CasCe:a0s9e-23:50167-4cv-01401/215-/M20JP11 DoIcDu:m79e4n0t 47867 FiDlekdtE1n0t/r2y5:/511-1PagPea3geo:f319of 19
GONZALES v. U.S. D EP’T OF HOMELAND SECURITY 19303
2007) (“Duran Gonzales II ”), we held that, pursuant to the Supreme Court’s directions in National Cable & Telecommunications Ass’n v. Brand X Internet Services , 545 U.S. 967, 981-985 (2005) (“ Brand X”), we were compelled to follow the 2006 opinion by the Board of Immigration Appeals (“BIA”) in In re Torres-Garcia , 23 I. & N. Dec. 866 (BIA 2006). In In re Torres-Garcia , the BIA held that individuals such as Plaintiffs were not eligible for relief. We held that, because this was a reasonable interpretation of a statute by the agency charged with interpreting and enforcing the statute, and because our prior opinion in Perez-Gonzalez was based on the statute’s ambiguity, Brand X required that we defer to the BIA’s interpretation of the statute, even though it was contrary to our prior interpretation of the statute in PerezGonzalez. Duran Gonzales II , 508 F.3d at 1242.
Accordingly, we vacated the district court’s injunction and remanded the matter. Our opinion stated that “[p]ursuant to In re Torres-Garcia, plaintiffs as a matter of law are not eligible to adjust their status because they are ineligible to receive I212 waivers.” Id. On remand, the district court held that Duran Gonzales II was binding, declined to allow Plaintiffs to amend their complaint or the class certification, and dismissed Plaintiffs’ action.
Plaintiffs appeal, arguing that Duran Gonzales II should be given prospective application only. We affirm the district court’s dismissal of the action because Duran Gonzales II applied its ruling to the Plaintiffs, and another three-judge panel has held that Duran Gonzales II has retroactive application. See Morales-Izquierdo v. Dep’t of Homeland Sec. , 600 F.3d 1076, 1086 (9th Cir. 2010).
I
Plaintiffs are individuals who are not citizens of the United States, who were previously deported or removed from the United States, and who reentered the United States without

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inspection. After returning to the United States, Plaintiffs sought to adjust their immigration status by filing applications for adjustment of status under 8 U.S.C. § 1255. The statute “allowed the Attorney General to adjust the status of an alien who had entered the United States without inspection to that of a legal permanent resident provided that the alien (1) was admissible to the United States and the beneficiary of an immediately available immigrant visa, and (2) paid an application fee five times the usual fee.” Duran Gonzales II , 508 F.3d at 1230.
Plaintiffs’ course to adjustment of status, however, was complicated by two provisions of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”). The first appeared to deny Plaintiffs relief. Title 8 U.S.C. § 1231(a)(5) provides “for automatic reinstatement of an alien’s prior removal or deportation order when an alien has reentered the United States illegally,” and further provides that the “alien is not eligible and may not apply for any relief.” Duran Gonzales II , 508 F.3d at 1230.
The second section suggested a possible exception to this bar. Although 8 U.S.C. § 1182(a)(9)(C)(i) provides that an alien “who enters or attempts to reenter the United States without being admitted is inadmissible,” § 1182(a)(9)(C)(ii) creates an exception for
an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien’s reapplying for admission.
8 U.S.C. § 1182(a)(9)(C)(ii). The exception had two conditions of particular relevance to Plaintiffs: (1) it was only available if made more than 10 years after the alien’s last

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departure; and (2) the application has to be made from outside the United States.
Plaintiffs, however, found encouragement in our opinion in Perez-Gonzalez, which held “that the INS committed legal error when it concluded that Perez-Gonzalez could not apply for a Form I-212 waiver from within this country.” PerezGonzalez, 379 F.3d at 789. Accordingly, Plaintiffs filed both I-212 forms seeking relief under § 1182(a)(9)(C)(ii) and applications for adjustment of status under § 1255(i) with the United States Citizenship and Immigration Services (“USCIS”). USCIS denied three of the Plaintiffs’ applications on the ground that the ten-year period had not elapsed since the dates of the applicants’ last departures from the United States.
Plaintiffs then filed their complaint with the United States District Court for the Western District of Washington. They argued that USCIS’s position — that an alien’s failure to meet the ten-year requirement barred a successful I-212 application — was contrary to Perez-Gonzalez, and sought injunctive and declaratory relief, a temporary restraining order, and class certification. The district court granted a preliminary injunction and certified a class. The Department of Homeland Security filed a timely appeal.
II
[1] On appeal, we were constrained by the Supreme Court’s opinion in Brand X, 545 U.S. 967, in which the Court “held that the circuit court must apply Chevron deference to an agency’s interpretation of a statute regardless of the circuit court’s contrary precedent, provided that the court’s earlier precedent was an interpretation of a statutory ambiguity.” Duran Gonzales II , 508 F.3d at 1235-36. We determined “that, despite some language to the contrary, Perez-Gonzalez was based on a finding of statutory ambiguity that left room for agency discretion.” Id. at 1237. We explained:

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by declining to adhere to the plain language of the inadmissibility provision and instead falling back on the regulations, Perez-Gonzalez did not find the inadmissibility provision, nor the statutory scheme, to be unambiguous. Accordingly, we are not bound by Perez-Gonzalez and must defer to In re TorresGarcia if its interpretation of the governing statute is reasonable.
Id. at 1238-39. We recognized that in deciding In re TorresGarcia the BIA considered various interpretations of the statutes, including our approach in Perez-Gonzalez, and found “the more reasonable interpretation of the statutory framework to be that an alien may not obtain a waiver under subsection (a)(9)(C)(ii), retroactively or prospectively, without regard to the ten-year bar.” 1 Id. at 1241. We determined that the BIA’s decision was “clearly reasonable” and entitled to Chevron deference under Brand X. Id. at 1242.
[2] The final paragraph in Duran Gonzales II states:
we vacate the district court’s order because we hold today that we are bound by the BIA’s interpretation
1The BIA reasoned: Perez-Gonzalez allows an alien to obtain a section 212(a)(9)(C)(ii) waiver nunc pro tunc even though such a waiver would have been unavailable to him had he sought it prospectively, thereby placing him in a better position by asking forgiveness than he would have been in had he asked permission. Such an interpretation contradicts the clear language of section 212(a)(9)(C)(ii) and the legislative policy underlying section 212(a)(9)(C) generally. We find that the more reasonable interpretation of the statutory framework discussed above is that an alien may not obtain a waiver of the section 212(a)(9)(C)(i) ground of inadmissibility, retroactively or prospectively, without regard to the 10-year limitation set forth at section 212(a)(9)(C)(ii).
In re Torres-Garcia , 23 I. & N. Dec. at 876.

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of the applicable statutes in In re Torres-Garcia , even though that interpretation differs from our prior interpretation in Perez-Gonzalez. Pursuant to In re Torres-Garcia, plaintiffs as a matter of law are not eligible to adjust their status because they are ineligible to receive I-212 waivers . . . . The case is remanded for further proceedings consistent with this opinion.
508 F.3d at 1242-43 (emphasis added). Plaintiffs filed a petition for rehearing and suggestion for rehearing which included an argument that the opinion should not be applied retroactively. The panel denied the petition for rehearing, and a majority of the active judges declined the suggestion for rehearing en banc.
In the district court on remand, Plaintiffs argued that Duran Gonzales II should be given prospective application only and not applied to them. They also sought to amend their class certification to include only those individuals who filed I-212 applications prior to our opinion in Duran Gonzales II .
The district court rejected Plaintiffs’ arguments, denied their motion to amend class certification, denied their motion to file an amended complaint, and dismissed the action. The district court rejected Plaintiffs’ argument against Duran Gonzales II’s retroactivity because “the Circuit court stated conclusively that the BIA’s interpretation of the statute applied to Plaintiffs,” and held that “the retroactive application of In re Torres-Garcia is simply not an open question before this Court.” 2 The court reasoned that allowing Plaintiffs to amend their complaint or to amend their class certification would be futile because neither amendment could
2Citing Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993), the district court reasoned that the “Ninth Circuit’s silence on the retroactivity of its decision requires this Court to assume that it carries full retrospective effect.”

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change the presumptive retroactive effect of Duran Gonzales II. Plaintiffs filed this timely appeal.
III
Following our remand in Duran Gonzales II, we issued two opinions that bear on our consideration of this appeal: Morales-Izquierdo, 600 F.3d 1076, and Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc).
A. Morales-Izquierdo v. Holder
Raul Morales, a citizen of Mexico, illegally entered the United States in 1990. After being arrested by the INS, Morales was ordered removed in 1994 and was actually removed to Mexico in 1998. 600 F.3d at 1079. He subsequently reentered the United States, again without inspection, in 2001. Id. After being removed but before reentering, Morales married a United States citizen. Id. Following his reentry without inspection, Morales sought to adjust his status through his citizen-wife. Id. In 2003, Morales was taken into custody, his application for adjustment of status was denied, and a Notice of Intent to/Decision to Reinstate Prior Order (on the basis of his 1998 removal) was issued. Id. at 1079-80.
Morales filed several petitions seeking review of these actions. We granted his initial petition for review of the reinstatement order. Morales-Izquierdo v. Ashcroft , 388 F.3d 1299 (9th Cir. 2004). Further litigation ensued, however, and when his case was again before us in 2010, one of the issues was whether Duran Gonzales II applied to his situation. We explained:
Morales argues that even though he did not file an application for a Form I-212 waiver when he applied for adjustment of status in 2001, errors of the INS entitle him to have his subsequently-filed Form I212 waiver application treated as if it were timely

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GONZALES v. U.S. D EP’T OF HOMELAND SECURITY 19309

filed in 2001. Morales has a problem, however: The

current law of our circuit provides that a Form I-212

waiver, even if granted, does not cure the inadmissi-

bility of an alien who reenters the United States

without inspection after a prior removal. Gonzales,

508 F.3d at 1242;

see also 8 U.S.C.

§ 1182(a)(9)(C)(ii). Morales concedes that if the

holding in Gonzales applies to him, he cannot cure

the deficiency in his adjustment-of-status applica-

tion. Morales nonetheless argues that Gonzales —

decided six years after Morales filed his first

adjustment-of-status application and four years after

his second — cannot be applied retroactively to

make him ineligible for a waiver of inadmissibility.

He argues that under the law that was established in

our circuit prior to Gonzales, a Form I-212 waiver

could cure his inadmissibility, that he was eligible

for such a waiver, and that our prior law should

apply to him.

Morales-Izquierdo, 600 F.3d at 1086.

In rejecting Morales’s argument, we started with the standard that “[o]rdinarily, ‘[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.’ ” Id. at 1087-88 (quoting Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994)). We further commented that “[t]hus, when a court applies a statute to the parties before it, ‘that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the] announcement of the rule.’ ” Id. at 1088 (quoting Harper v. Va. Dep’t of Taxation , 509 U.S. 86, 97 (1993)).

We rejected Morales’s argument that Duran-Gonzales II

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was similar to an agency decision and its retroactivity should be evaluated pursuant to a multi-factor standard. 3 We held:
Yet, whatever disputes on theory of statutory interpretation may be sparked, we conclude that the interpretation of the INA that we adopted in Gonzales renders Morales ineligible for a Form I-212 waiver. True, Gonzales declared the INA ambiguous and deferred to the BIA’s interpretation of the INA for the purpose of determining what the statute means. But statutory ambiguity alone has never been sufficient to render judicial interpretation of a statute non-retroactive. Gonzales is still a judicial decision interpreting a statute, and courts remain “the final authority on issues of statutory construction.” Chevron, 467 U.S. at 843 n.9, . . . . Under Gonzales, 8 U.S.C. § 1182(a)(9)(C)(ii) renders aliens in Morales’s position ineligible for waiver of the ten-year
3We described Morales’s argument as follows:
According to Morales, our decision in Gonzales does not establish a definitive interpretation of what the INA has always meant, but rather that Congress has created a “gap” in the INA and delegated authority to DHS to fill in the gap. Morales argues, then, that the question is not whether our decision in Gonzales applies retroactively, but rather whether the BIA’s interpretation of the INA in Torres-Garcia applies retroactively, because it is TorresGarcia that gives content to the gap in 8 U.S.C. § 1182(a)(9)(C). And unlike a judicial decision, a decision made by an administrative agency acting in an adjudicatory capacity does not necessarily apply retroactively. See, e.g., Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982) (“[W]hen a new problem is presented to an administrative agency, the agency may act through adjudication to clarify an uncertain area of the law, so long as the retroactive impact of the clarification is not excessive or unwarranted.”). Therefore, Morales contends, we must conduct a multi-factor retroactivity analysis to determine whether or not the rule of Torres-Garcia applies to him. See, e.g., MiguelMiguel v. Gonzales, 500 F.3d 941, 951 (9th Cir. 2007).
Morales-Izquierdo, 600 F.3d at 1088.

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bar. See Gonzales, 508 F.3d at 1242. That rule is dispositive and wholly scuttles the argument of Morales. Whatever the adjudicative history preceding Gonzales, and whatever the tools used in Gonzales to interpret the statute, a statute can have only one meaning, and Gonzales tells us what that meaning is.
Morales-Izquierdo, 600 F.3d at 1089.
Our reasoning led us to reject Morales’s request for “a nunc pro tunc Form I-212 waiver to cure his inadmissibility and make him eligible for adjustment of status.” Id. at 1090. We held that “the law of our circuit in Gonzales explicitly and without apology holds that 8 U.S.C. § 1182(a)(9)(C) . . . does not permit such waivers.” Id. at 1091. We concluded that the statute and our precedent were controlling and that “a Form I-212 waiver cannot cure Morales’s inadmissibility until the expiration of the ten-year bar.” Id.
B. Nunez-Reyes v. Holder
Flavio Nunez-Reyes entered the United States in 1992 and in 2001 was charged in state court with a felony count and a misdemeanor count involving methamphetamine. He pled guilty to both counts and the state court subsequently dismissed the charges under a state provision wherein courts were directed to set aside convictions and dismiss indictments should a defendant successfully complete a drug treatment program along with other conditions. Under the California provision, “both the arrest and the conviction shall be deemed never to have occurred.” Nunez-Reyes, 646 F.3d at 687. In 2002, the federal government found Nunez-Reyes removable, and his applications for adjustment of status and petition for cancellation of removal were denied by the BIA. Id.
The en banc panel first overruled our prior decision in Lujan-Armendariz v. INS , 222 F.3d 728 (9th Cir. 2000), and held “that the constitutional guarantee of equal protection

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does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the” Federal First Offender Act. Nunez-Reyes, 646 F.3d at 690.
The panel, however, determined that this holding “will apply only prospectively.” 4 Id. at 694. The panel recognized that the “default principle is that a court’s decisions apply retroactively to all cases still pending before the courts.” Id. at 690. However, “courts may depart from that default principle only in certain circumstances, as outlined in” Chevron Oil Co. v. Hudson, 404 U.S. 97 (1971). Nunez-Reyes, 646 F.3d at 690. Before applying the Chevron Oil factors, the panel noted that “a court announcing a new rule of law must decide between pure prospectivity and full retroactivity.” Id. (citing James B. Beam Distilling Co. v. Georgia , 501 U.S. 529, 53738 (1991) (Souter J., plurality opinion)).
The panel identified the Chevron Oil factors as: “(1) whether the decision establish[es] a new principle of law; (2) whether retrospective operation will further or retard [the rule’s] operation in light of its history, purpose, and effect; and (3) whether our decision could produce substantial inequitable results if applied retroactively.” Nunez-Reyes, 646 F.3d at 692 (internal quotation marks and citation omitted). The panel found that there was no question that its ruling established a new principle of law. Id. It next determined that the retroactive application of its decision created the potential for unfairness, explaining:
Those aliens were assured that, after completion of drug treatment, there would be absolutely no legal consequences. Their waiver of their constitutional
4The panel explained that “[f]or those aliens convicted before the publication date of this decision, Lujan-Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan-Armendariz is overruled.” 646 F.3d at 694.

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rights was in reliance on Lujan-Armendariz. In these circumstances, we easily conclude that the third Chevron Oil factor is met: our decision “could produce substantial inequitable results if applied retroactively.” Chevron Oil, 404 U.S. at 107 . . . . It would be manifestly unfair effectively to hoodwink aliens into waiving their constitutional rights on the promise of no legal consequences and, then, to hold retroactively that their convictions actually carried with them the “particularly severe ‘penalty’ ” of removal, Padilla, 130 S. Ct. at 1481 . . . .
Nunez-Reyes, 646 F.3d at 693-94. Finally, the panel concluded that the second Chevron Oil factor was met: “retroactive application will not further the rule’s operation.” Id. at 694. The court reasoned that “Congress did not intend adverse immigration consequences for those who were merely charged with a crime or suspected of a crime.” 5 Id.
5The panel explained: Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver of those constitutional rights. As discussed above, many alien defendants fell into neither category. Instead, they pleaded guilty and waived their constitutional rights with a wholly uninformed understanding of the consequences of their plea. Contrary to their understanding that there would be no immigration consequences, the actual consequence is the severe penalty of removal. Nothing in the statute or its history, purpose, or effect suggests that Congress intended adverse immigration consequences for those whose waiver of constitutional rights turned out to be so illinformed. Indeed, the Supreme Court has instructed that such a gross misunderstanding of the immigration consequences of a plea, when caused by incompetent counsel, rises to the level of a constitutional violation. Padilla, 130 S. Ct. at 1486-87.
Nunez-Reyes, 646 F.3d at 694 (emphases in original).

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As explained in the next section, the principles set forth in Morales-Izquierdo and Nunez-Reyes require that we affirm the district court’s dismissal of Plaintiffs’ complaint.
IV
Although the district court’s denial of leave to amend is reviewed for abuse of discretion, Gardner v. Martino , 563 F.3d 981, 990 (9th Cir. 2009), as is an order on class certification, Parra v. Bashas’, Inc ., 536 F.3d 975, 977 (9th Cir. 2008), the essence of Plaintiffs’ appeal is that the district court erred in holding that Duran Gonzales II applied to them. This underlying conclusion of law is reviewed de novo. See Citizens for Clean Gov’t v. City of San Diego , 474 F.3d 647, 650 (9th Cir. 2007).
On appeal, Plaintiffs assert that the district court erred in holding that Duran Gonzales II applied retroactively to all class members and in failing to independently determine whether it should be applied to them. We disagree and hold that the district court could not have determined that Duran Gonzales II applied prospectively only and hold that we are unable to give Duran Gonzales II only prospective application.
A. The District Court Could Not Determine That Duran Gonzales II Applies Prospectively Only.
[3] We reiterated in Nunez-Reyes that the “default principle is that a court’s decisions apply retroactively to all cases still pending before the courts.” 646 F.3d at 690; see also Harper, 509 U.S. at 97. Furthermore, we continue to adhere to the Supreme Court’s admonishment that if a decision is not to be given retroactive effect, its prospective-only application should be announced in the opinion itself. In Harper, the Supreme Court stated:
When this Court does not “reserve the question whether its holding should be applied to the parties

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before it,” however, an opinion announcing a rule of federal law “is properly understood to have followed the normal rule of retroactive application” and must be “read to hold . . . that its rule should apply retroactively to the litigants then before the Court.”
509 U.S. at 97-98 (quoting Beam, 501 U.S. at 539); see also United States v 20832 Big Rock Drive, 51 F.3d 1402, 1406 (9th Cir. 1995) (holding that “it is now clear that a new rule of law applies retroactively to civil cases on direct review or those not yet final if it is applied to the parties in the case in which it is announced”).
[4] Thus, Duran Gonzales II would have retroactive application even if it did not address retroactivity. But it was not silent. The final paragraph held that “plaintiffs as a matter of law are not eligible to adjust their status because they are ineligible to receive I-212 waivers.” Duran Gonzales II, 508 F.3d at 1242. Because this court applied its holding in Duran Gonzales II to the parties before it, the ruling is retroactive.
[5] Moreover, Plaintiffs have not cited any authority, nor have we found any, that would allow a district court to interpret, in the first instance, whether a Ninth Circuit opinion applied prospectively only or retroactively. Rather, the general rule is that:
On remand, a trial court may not deviate from the mandate of an appellate court. As we have stated earlier, “[w]hen a case has been decided by an appellate court and remanded, the court to which it is remanded must proceed in accordance with the mandate and such law of the case as was established by the appellate court.” Firth v. United States , 554 F.2d 990, 993 (9th Cir.1977); . . . . The Supreme Court long ago emphasized that when acting under an appellate court’s mandate, an inferior court “cannot vary it, or examine it for any other purpose than exe-

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cution; or give any other or further relief; or review it, even for apparent error, upon any matter decided upon appeal; or intermeddle with it, further than to settle so much as has been remanded.” In re Sanford Fork & Tool Co. , 160 U.S. 247, 255 . . . (1895).

Matter of Beverly Hills Bancorp , 752 F.2d 1334, 1337 (9th Cir. 1984). Here, the district court properly determined that Duran Gonzales II applied retroactively to Plaintiffs.

B. This Panel May Not Now Rule That

Duran

Gonzales II Applies Only Prospectively And Not

Retroactively.

Even if Duran Gonzales II could be read as not clearly holding that it had retroactive application (by applying its ruling to the parties before it), the fact that Duran Gonzales II did not otherwise “reserve the question whether its holding should be applied to the parties before it” would be dispositive. See Harper, 509 U.S. at 97-98. It is now too late to apply Duran Gonzales II prospectively only. Since its announcement in 2007, the “normal rule of retroactive application” has applied and presumably Duran Gonzales II has been routinely applied by district courts and the BIA in other cases. Indeed, Duran Gonzales II has been cited approvingly by two other circuit courts. See Delgado v. Mukasey , 516 F.3d 65, 73 (2d Cir. 2008), and Gonzalez-Balderas v. Holder , 597 F.3d 869, 870 (7th Cir. 2010).

[6] Furthermore, our opinion in Morales-Izquierdo, 600 F.3d 1076, held that Duran Gonzales II applies retroactively, and we are bound by that decision. See Santamaria v. Horsley, 110 F.3d 1352, 1355 (9th Cir. 1997) (“It is settled law that one three-judge panel of this court cannot ordinarily reconsider or overrule the decision of a prior panel.”). The Morales-Izquierdo court fully considered retroactivity. It commented that “[w]hatever the adjudicative history preceding Gonzales, and whatever the tools used in Gonzales to

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interpret the statute, a statute can have only one meaning, and Gonzales tells us what that meaning is.” Morales-Izquierdo, 600 F.3d at 1089. The court concluded that “ Gonzales is ultimately a judicial interpretation of a federal statute,” and despite Morales’s “sense of unfairness engendered by the retrospective application of a new judicial interpretation of an old statute[,] . . . when a court interprets a statute, even an ambiguous one, and even when that interpretation conflicts with the court’s own prior interpretation, the new interpretation is treated as the statute’s one-and-only meaning.” Id. at 1090 (citing Griffith v. Kentucky, 479 U.S. 314, 323 (1987)). Accordingly, we held that Duran Gonzales II applied to Morales and “to all cases currently on direct review.” Morales-Izquierdo, 600 F.3d at 1092.

Plaintiffs attempt to distinguish Morales-Izquierdo on the

ground that Morales’s reliance on Perez-Gonzalez was not as

reasonable as Plaintiffs’ reliance. The argument is not well

taken. In Nunez-Reyes, we reaffirmed that “a court announc-

ing a new rule of law must decide between pure prospectivity

and full retroactivity,” and, citing Justice Souter’s plurality

opinion in James B. Beam Distilling Co ., 501 U.S. at 537-38,

confirmed that weighing “the equities on a case-by-case

basis[ ] is foreclosed.” 646 F.3d at 690-91. Thus, Morales-

Izquierdo’s holding of retroactivity cannot be distinguished

on the ground that Morales’s alleged reliance on

Perez-

Gonzalez was somehow less serious or reasonable than Plain-

tiffs’ reliance on the opinion.

[7] Duran Gonzales II specifically applied its ruling to the petitioners before it and in Morales-Izquierdo, a separate three-judge panel confirmed that Duran Gonzales II applies retroactively; we are bound by these decisions. It follows that the holding in Duran Gonzales II that “plaintiffs as a matter of law are not eligible to adjust their status because they are

CasCe:a0s9e-23:50167-4cv-01401/215-/M20JP11 DoIcDu:m79e4n0t 47867 FiDlekdtE1n0t/r2y5:/511-1PagPea1g8e:o1f819of 19
19318 GONZALES v. U.S. D EP’T OF HOMELAND SECURITY
ineligible to receive I-212 waivers,” 508 F.3d at 1242, applies to Plaintiffs and undermines their legal action. 6
Finally, because we determine that we cannot retroactively revise Duran Gonzales II to have only prospective application, we need not determine whether we would limit Duran Gonzales II to prospective application if we could. We note, however, that the situation in Nunez-Reyes is distinct from that presented in this appeal. In Nunez-Reyes, the petitioner and others similarly situated waived constitutional rights in reliance on our prior opinion. We stressed that it “would be manifestly unfair effectively to hoodwink aliens into waiving their constitutional rights on the promise of no legal consequences and, then, to hold retroactively that their convictions actually carried with them the particularly severe penalty of removal.” Nunez-Reyes, 646 F.3d at 694 (internal quotation marks omitted). Here, the Plaintiffs, in relying on PerezGonzalez, did not waive any constitutional right, although they did disclose to the government their illegal presence within the country. Whatever weight might be given to such reliance, it is considerably less than that given to the waiver of a constitutional right. 7
6This determination also governs Plaintiffs’ motions to file an amended complaint and to amend their class certification because neither amendment could overcome or circumvent the legal determinations in Duran Gonzales II.
7The Supreme Court’s opinion in Fernandez-Vargas v. Gonzales , 548 U.S. 30 (2006), tends to undercut the weight accorded this reliance. The Court noted:
it is the conduct of remaining in the country after entry that is the predicate action; the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country. It is therefore the alien’s choice to continue his illegal presence, after illegal reentry and after the effective date of the new law, that subjects him to the new and less generous legal regime, not a past act that he is helpless to undo up to the moment the Government finds him out. Id. at 44.

CasCe:a0s9e-23:50167-4cv-01401/215-/M20JP11 DoIcDu:m79e4n0t 47867 FiDlekdtE1n0t/r2y5:/511-1PagPea1g9e:o1f919of 19

GONZALES v. U.S. D EP’T OF HOMELAND SECURITY V

19319

[8] Plaintiffs’ request for relief from the retroactive application of Duran Gonzales II to their applications for adjustment of status must be denied because: (1) Duran Gonzales II itself applied its rulings to the Plaintiffs, thus giving the opinion retroactive application; and (2) another three-judge panel has reaffirmed that Duran Gonzales II has retroactive application. Morales-Izquierdo, 600 F.3d at 1092. The district court properly determined that Duran Gonzales II applies retroactively and that, accordingly, Plaintiffs are “ineligible to receive I-212 waivers.” Duran Gonzales II, 508 F.3d at 1242. The district court’s orders denying Plaintiffs’ motions to amend class certification and to file an amended complaint, and dismissing this action, are AFFIRMED.

 
 Case 2:06-cv-01411-MJP Document 98-1 Filed 03/14/14 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

- - - - - - - - - - - - - - - - - - - - - - - - - - - - -X AURELIO DURAN-GONZALEZ, et al.,

No. C06-141 1

Plaintiffs,

v.

U.S. DEPARTMENT OF HOMELAND SECUR ITY, et al.,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

SETTLEMENT AGRE EMENT AND RELEASE
Plaintiffs in the above-captioned matter, on behalf of themselves and all Class Members (collectively “Plaintiff Class”), and Defendants United States Department of Homeland Security (“DHS”) and Jeh Johnson, in his official capacity as Secretary of Homeland Security (“Defendants”), by and through their attorneys, hereby enter into this Settlement Agreement and Release (“Agreement”), as of the date it is executed by all parties hereto and effective upon approval of the Court pursuant to Rule 23 of the Federal Rules of Civil Procedure.
WHEREAS:
A. On September 28, 2006, Plaintiffs commenced a civil action against Defendants on behalf of themselves and all others similarly situated, captioned Duran Gonzalez, et al., v. United States Dep’t of Homeland Sec., et al. (“DHS”), United States District Court for the Western District of Washington Case No. C06-1411 (the “Action”), and sought class certification, designation of Class Counsel, and declaratory and injunctive relief.
B. The United States District Court for the Western District of Washington certified the proposed class; appointed Class Counsel on November 13, 2006; and issued a preliminary injunction on the same date. On December 19, 2006, the district court issued an order modifying the terms of the preliminary injunction.
C. On January 8, 2007, Defendants appealed the issuance of a preliminary injunction to the United States Court of Appeals for the Ninth Circuit, and on November 30, 2007, the Ninth Circuit Court of Appeals vacated the injunction and remanded the case to the district court for further proceedings. See
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Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007) (Duran Gonzales I). The Plaintiff Class sought rehearing, which the court of appeals denied, and the mandate issued on January 23, 2009.
D. On remand, the Plaintiff Class moved to amend the complaint and the class definition, arguing that Duran Gonzales I should not apply to them because it would be impermissibly retroactive. The district court denied both motions, and the Plaintiff Class appealed.
E. On October 25, 2011, the court of appeals affirmed the district court’s decisions denying the motions. See Duran Gonzales v. DHS, 659 F.3d 930 (9th Cir. 2011) (Duran Gonzales II). The Plaintiff Class sought rehearing en banc.
F. While en banc rehearing was pending, the court of appeals decided Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), in which it determined that the multi-factor, individualized inquiry articulated in Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982), should be applied to determine the retroactivity of the pertinent agency determination in all cases where the Ninth Circuit defers to that agency’s statutory interpretation under Nat’l Cable and Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
G. On March 29, 2013, the court of appeals vacated Duran Gonzales II and issued a new decision, remanding the case for further proceedings in light of Garfias-Rodriguez. See Duran Gonzales v. DHS, 712 F.3d 1271 (9th Cir. 2013) (Duran Gonzales III).
H. Defendants deny all liability with respect to the Action, deny that they have engaged in any wrongdoing, deny the allegations in the Complaint and the proposed Amended Complaint, deny that they committed any violation of law, deny that they acted improperly in any way, and deny liability of any kind to the Plaintiffs or the Plaintiff Class, but have agreed to the settlement and dismissal of the Action with prejudice in order to: (i) avoid the substantial expense, inconvenience, and distraction of protracted litigation; and (ii) finally put to rest and terminate the Action and any and all Settled Claims as defined in Section I.9.
I. Both the Plaintiff Class and Defendants have conducted discussions and arm’s length negotiations regarding a compromise and settlement of the Action with a view to settling all matters in dispute.
J. Considering the benefits that the Plaintiffs and the Plaintiff Class will receive from settlement of the Action and the risks of litigation, Class Counsel have concluded that the terms and conditions of this Agreement are fair, reasonable, and in the best interests of the Plaintiffs and the Plaintiff Class; Plaintiffs have agreed that Defendants shall be released from the Settled Claims pursuant to the terms
2

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and provisions of this Agreement; and have agreed to the dismissal with prejudice of all Settled Claims as defined in Section I.9.
NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the parties to this Agreement, through their respective attorneys, subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in consideration of the benefits flowing to the parties hereto from the Agreement, that the Settled Claims shall be compromised, settled, forever released, barred, and dismissed with prejudice, upon and subject to the following terms and conditions:
I. DEFINITIONS:
Wherever used in this Agreement, the following terms have the meanings set forth below:
A. “Action” means the civil action captioned Duran-Gonzalez, et al., v. DHS et al., United States District Court for the Western District of Washi ngton, Case No. C06-1411. Both parties note that despite the contrar y lang uage in t he decision of t he Ninth Cir cuit Court of Appeals in Duran Gonzales III , 712 F.3d at 1274 n.4, Mr. Duran Go nzalez’s name is correctl y spelled in t he instant caption, but is incorrectly spelled in the decisions of the Ninth Circuit Court of Appeals.
B. “Effective Date of Settlement” or “Effective Date” means the date upon which this Agreement shall become effective, as set forth in Section VII., below.
C. “Plaintiff(s)” means Aurelio Du ran Gonzalez, Mar ia C. Estr ada, Maria Luisa Martinez de Munguia, Ir ma Palacios de Banuelos, Lucia M uniz de Andrade, Karina Noris, and Adriana Pouparina.
D. As the class is defined more narrowly here than in the district c ourt’s Nove mber 13, 2006 class certification order, this agree ment requires the parties to seek modification of the class definition.
“Class Member(s)” means any person who(se):
1. Is the beneficiary or derivative beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001, pr ovided t hat, if the imm igrant visa petiti on or labor certification was filed after January 14, 1998:
a. the beneficiary was physically present in the United States on December 21, 2000, or
3

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b. If a derivative beneficiary, the derivat ive beneficiary or the primary beneficiary was physically present in the United States on December 21, 2000.
2. Is inadmissible to the United States under section 212(a)(9)(C)(i)(II) of the Immigration and Nationality Act (“INA”), because he or she entered or attempted to reenter the United States without being adm itted after April 1, 1997, an d without perm ission after having previousl y been removed;
3. Properly filed a Form I-485 (Application to Adjust Status) and Form I-485 Su pplement A (Adjustment of Status Under Section 245(i)) wh ile residing within the jurisdiction of th e Ninth Circuit on or after August 13, 2004, and on or before November 30, 2007;
4. Filed a Form I-212 (Appli cation for Perm ission to Reapply for Admission In to the United States After Deportation or Rem oval) on or after August 13, 2004, and on or before November 30, 2007;
5. Form I-485, Form I-485 Supplement A, and Form I-212 were denied by U.S. Citizenship and Immigration Services ( “USCIS”) and/or the Executive Office for I mmigration Review (“EOIR”) on or after August 13, 2004, or have not yet been adjudicated;
6. Is not currently su bject to pending rem oval proceedings under INA § 240, or before the United States Court of Appeals for the Ninth Circuit on a petition for review of a rem oval order resulting from proceedings under INA § 240; and
7. Did not enter or attempt to reenter the United States without being adm itted after November 30, 2007.
E. The Class members are further divided into three subclasses, as follows:
1. Subclass A: Class Members (i) who have re mained physically present in the United States since the fili ng of t he Fo rm I-485, Fo rm I-485 S upplement A, and Form I-212, and (ii) against whom rem oval proceedings under INA § 240 were not initiated with the filing of a Notice to Appear subsequent to the filing of the Form I-485, Form I-485 Supplement A, and Form I-212 (“Subclass A Members”);
2. Subclass B: Class Members: (i) who ha ve remained physically present in the United States since the filing of the For m I-485, For m I-485 Sup plement A, and Form I-212; (ii) against whom r emoval proceedings under INA § 240 were initiated by t he filing of a Notice to 4

Case 2:06-cv-01411-MJP Document 98-1 Filed 03/14/14 Page 5 of 17

Appear, subsequent to t he filing of the Form I-485, Form I-485 Supplement A, and Form I212; (iii) who have a final, unexecuted order of removal; (iv) who have no pending direct appeals of that order, incl uding a petiti on for review before the Court of Appeals for the Ninth Circuit; (v) whose applications to ad just s tatus were d enied based upon final administrative determ inations of inadmissib ility by t he Executive Office for Immigration Review under INA § 212(a)(9)(C)(i)(II) and whose final orders of removal were not entered in absentia ; and (vi) for whom the Ninth Circuit Court of Ap peals did no t appl y the Montgomery Ward test as set forth in the Garfias-Rodriguez decision, to determine whether Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006) was properly retroactively applied to them (“Subclass B Member”); and

3. Subclass C: Class Members (i) who ha ve departed the United States after filing the Form I485, F orm I-485 S upplement A, and F orm I-212, (ii) who remain ph ysically outside the United States; and (iii) who have properly f iled a n imm igrant visa application with the United States Department of State, or who will file an immigrant visa application within one year of the effective date of this agreement (“Subclass C Members”).

F. “Plaintiffs’ Counsel” or “Class Counsel” means Beth Werlin of the American Imm igration Council; Trina Realmuto of the National Imm igration Project of the National Lawy ers Guild; Stacy Tolchin of the Law Offices of Stac y T olchin; Ma rc Van Der Hout of Van Der Hout, Brigliano & Nightingale, LLP; and M att Adam s of the Northw est Imm igrant Rights Pr oject. Should these entities chan ge their names or merge with other entities, those new entities shall also qualify a s Class Counsel.

G. “Defendants” means DHS and Jeh Johnson, in hi s official capacity as Secretary of Homeland Security, their predecessors and successors, their departments and agencies, and their past or present agents, employees, and contractors.

H. “Montgomery Ward factors” are the five factors set out by the Ninth Circuit Court of Appeals in Montgomery Ward , 691 F. 2d at 1333, t o det ermine whether an agen cy decision may b e retroactively applied:

•

(1) whether the particular case is one of first impression,

•

(2) whether the new rule represents an ab rupt departure from well-established practice

or merely attempts to fill a void in an unsettled area of law,

5

Case 2:06-cv-01411-MJP Document 98-1 Filed 03/14/14 Page 6 of 17

•

(3) the extent to which the party agains t whom the new rule is applied relied on th e

former rule,

•

(4) the degree of the burden which a retroactive order imposes on a party, and

•

(5) the statutory interest in applying a new rule despite the reliance of a party on the old

standard (“Montgomery Ward factors”).

I. “Settled Claims” means any and all actions, in law or equity, that were asserted or that could have been asserted by Plaintiffs or Class Me mbers or any one acting on behalf of or in place of a Class M ember, based upon the facts al leged or that could have been alleged in the Com plaint or proposed First Amended Com plaint relating t o the subject of this Action, including but not limited to claims under the Administrative Procedure Act (“APA”).

J. “Settlement” means the settlem ent provided for in this Agreement.

II.

RELEASE: SCOPE AND EFFECT OF RELEASE

A. On the Effective Date, the Plaintiffs and the Class Me mbers, on behalf of the mselves, their heirs, executors, administrators, representatives, attorneys, successors, assigns, agents, affiliates, and partners, and any persons they represent, by operation of any final judgment entered by the Court, shall have fully, finall y, and forever re leased, relinquished, and discharged the Defendants of and from any and all of the Se ttled Claims, and the Plaintiffs and the Class Members shall forever be barred and enjoined from bringing or prosecuting any Settled Clai m against any of the Released Parties.

B. The Parties recognize that the class def inition presented in this a greement does not include persons subject to pending removal proceedings under INA § 240, or before the United States Court of Appeals for the Nint h Circuit on a petition f or review of a rem oval order resulting from proceedings under INA § 240, as those individuals may request that EOIR or the Ninth Circuit Court of Appeals apply the Montgomery Ward test and other controlling case law.

C. This Agreement is subject to and contingent upon Court approval pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.

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III.

CLASS MEMBER IDENTIFICATION

A. Within five (5) business days after the District Court enters an order preliminarily approving the Agreement under Rule 23(e) of the Federal Rules of Civil Procedure, DHS will identify all known possible Class Members to the extent it is technically feasible, and will provide Class Counsel with the total number identified and a list of all identified possible Class Members, along with the last known address, including any name and address provided on Form G-28 by the last known legal representative.

B. If Class Counsel know or become aware of an individual who they believe is a Class Member, Class Counsel may provide DHS with the individual’s name, Alien Registration Number or other evidence that the individual is a Class Member, including, but not limited to, filing receipts for the Form I-485, Form I-485 Supplement A, and Form I-212, and any evidence that the individual was residing within the jurisdiction of the Ninth Circuit at the time of filing. DHS will examine the evidence, including all evidence in its possession in the individual’s Alien File (A-File), and discuss the basis of any findings with Class Counsel.

C. The presence of an individual on the list compiled under subsection 1 does not mandate that the individual is a Class Member.

IV.

SETTLEMENT SUBCLASS RELIEF

In consideration of the releases contained herein and subject to this Agreement's conditions, the parties stipulate and agree to the following:

A. Subclass A Members:

1. Subclass A Members may file a request with USCIS to file a service motion to reopen their I212 and I-485 applications, based upon the Montgomery Ward factors within eighteen months of the Effective Date. Such requests should be filed with the same USCIS office where the I-212 was originally filed, and may be accompanied by additional information or evidence to supplement the application.

2. Upon receipt of a request for a service motion to reopen, USCIS will reopen the case if the Subclass A member submits sufficient evidence to prove Subclass A membership. If not, USCIS

7

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will issue a service motion to reopen, under 8 C.F.R. § 103.5(a)(5), providing the Subclass A member with 30 days to submit any brief and supporting evidence.
3. In the case of a Subclass A Member subject to a reinstated removal order under INA § 241(a)(5), within 30 days of receiving written notice that the Subclass A Member has filed a request for a USCIS service motion to reopen based upon the Montgomery Ward factors as specified in paragraphs IV.A.1 or IV.A.2, U.S. Immigration and Customs Enforcement (“ICE”) will cancel the reinstated removal order. This written notice may come from either the Class Member himself or herself, in the form of a copy of the filing receipt notice, or from USCIS.
4. In adjudicating a request to file a service motion to reopen based on the Montgomery Ward factors for a Subclass A Member who filed his or her Form I-485, Form I-485 Supplement A, and Form I-212 between August 13, 2004, and January 26, 2006, USCIS shall: (a) find that Matter of Torres-Garcia does not retroactively apply to the application; and that the Subclass A Member is eligible to have the Form I-485, Form I-485 Supplement A, and Form I-212 adjudicated on their merits; (b) reopen the Form I-485, Form I-485 Supplement A, and Form I-212; and (c) readjudicate these applications de novo.
5. In adjudicating a request to file a service motion to reopen based on the Montgomery Ward factors for a Subclass A Member who filed his or her Form I-485, Form I-485 Supplement A, and Form I-212 between January 27, 2006, and November 30, 2007, USCIS shall determine whether, through application of the Montgomery Ward factors, Matter of Torres-Garcia should not apply to the Class Member’s application, and the Subclass A member is eligible to have the Form I-485, Form I-485 Supplement A, and Form I-212 adjudicated on their merits. If USCIS so finds, USCIS shall reopen the Form I-485, Form I-485 Supplement A, and Form I-212 and readjudicate these applications de novo.
6. In adjudicating a request to file a service motion to reopen based on the Montgomery Ward factors, USCIS shall deem any evidence demonstrating reliance on the District Court’s November 13, 2006 Order to be relevant. However, the Subclass A member must still demonstrate that such reliance was reasonable in light of the decision in Matter of Torres-Garcia, as discussed by the Ninth Circuit Court of Appeals in Carrillo de Palacios v. Holder, 708 F.3d 1066, 1072 (9th Cir. 2013).
7. If USCIS finds that Matter of Torres-Garcia retroactively applies to the Subclass A Member, or denies his or her Form I-485, Form I-485 Supplement A, or Form I-212 on the merits, he or
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she may individually pursue all available avenues of further administrative and/or federal court review of that determination.
B. Subclass B Members:
1. Subclass B Members may request that ICE counsel join a motion to reopen their removal proceedings for consideration of the Montgomery Ward factors before the immigration court or the Board of Immigration Appeals, depending on which entity last exercised jurisdiction over the removal proceedings, within eighteen months of the Effective Date. An individual Subclass B member may only make one such request. A request that ICE join a motion to reopen under this Agreement must include the coversheet at Exhibit D, providing notice that the request is made pursuant to this Agreement.
2. Upon verification that the individual is a Subclass B Member, ICE will join the motion to reopen removal proceedings for the sole and limited purpose of consideration of the Subclass B Member’s Montgomery Ward motion and, if appropriate, adjudication of the Form I-485, Form I485 Supplement A, and Form I-212 on the merits. This does not limit EOIR in its decision as to the scope of reopened proceedings. No fee is required for the joint motion to reopen.
3. In the joint motion to reopen, ICE will represent that in any reopened proceedings, ICE will not take a position contrary to the following:
a. Matter of Torres-Garcia is not applicable to the application of a Subclass B Member who filed his or her Form I-485, Form I-485 Supplement A, and Form I-212 on or after August 13, 2004, and on or before January 26, 2006, and that EOIR should adjudicate the Subclass B Member’s Form I-485, Form I-485 Supplement A, and Form I-212 adjudicated on their merits de novo; and
b. A Subclass B Member who filed his or her Form I-485, Form I-485 Supplement A, and Form I-212 on or after January 27, 2006, and on or before November 30, 2007, is eligible to present his or her Montgomery Ward motion to EOIR, and if EOIR determines that the Subclass B Member demonstrates that, pursuant to the Montgomery Ward test, the Board’s decision in Matter of Torres-Garcia should not be applied to his applications, he or she is eligible to have the Form I-485, Form I-485 Supplement A, and Form I-212 adjudicated on their merits de novo.
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c. In arguing whether Matter of Torres-Garcia applies to a Subclass B member, ICE shall not dispute that evidence demonstrating reliance on the District Court’s November 13, 2006 Order is relevant. However, ICE may contest whether the Subclass B member has demonstrated that such reliance was reasonable in light of the decision in Matter of TorresGarcia.
These representations will be binding on ICE in any future proceedings reopened pursuant to the joint motion. (A sample joint motion is attached as Exhibit E.)
4. ICE reserves the right to join a motion to reopen for further proceedings or, in its discretion, to move for dismissal of reopened proceedings without prejudice so that the applications may be adjudicated by USCIS.
5. In reopened proceedings, ICE may, however, present evidence and/or argument regarding the application of the Montgomery Ward test in the individual case. ICE reserves the right to oppose the Form I-485, Form I-485 Supplement A, and Form I-212 applications on the basis of discretion and/or any other applicable basis.
6. ICE will not oppose Subclass B Members updating and supplementing their applications with the motions to reopen or before the immigration judge, given the substantial amount of time that has elapsed since the filing of these applications.
7. This agreement shall not be construed as requiring any specific outcome from the Board of Immigration Appeals or the Immigration Court with regard to a motion to reopen or in any reopened proceedings.
C. Subclass C Members:
1. Subclass C Members must have already applied for an immigrant visa within the past year, or must initiate the immigrant visa process within one year of the effective date by contacting the National Visa Center.
2. If the Department of State finds a Subclass C Member to be inadmissible under INA § 212(a)(9)(C)(i)(II) based on a return to the United States without admission on or after April 1, 1997, but also on or before November 30, 2007, the Subclass C Member may request that USCIS file a service motion to reopen the former Form I-212 applications. Subclass C members should provide any updated evidence and arguments regarding the Montgomery Ward factors. Such requests must be filed no later than eighteen months from the effective date.
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3. If the Subclass C Member is also inadmissible on other grounds for which a waiver is available, the Subclass C member may separately file a Form I-601, if needed, to obtain a waiver of any other ground of inadmissibility for which the Form I-601 is used. Such filings are not covered by any portion of this Agreement.
4. If the Subclass C Member filed a Form I-485, Form I-485 Supplement A, and Form I-212 between August 13, 2004, and January 26, 2006, USCIS shall find that the Subclass C Member satisfies the Montgomery Ward test; that Matter of Torres-Garcia does not retroactively apply to the Subclass C Member; and USCIS shall adjudicate the Form I-212 de novo.
5. If a Subclass C Member filed a Form I-485, Form I-485 Supplement A, and Form I-212 between January 27, 2006, and November 30, 2007, USCIS shall determine whether the Subclass C Member is able to demonstrate that, under the Montgomery Ward test, the Board’s decision in Matter of Torres-Garcia, should not be applied retroactively to the application. If USCIS so finds, USCIS shall adjudicate the Form I-212 de novo.
6. In applying the Montgomery Ward test, USCIS shall deem any evidence demonstrating reliance on the District Court’s November 13, 2006 Order to be relevant. However, the Subclass A member must still demonstrate that such reliance was reasonable in light of the decision in Matter of Torres-Garcia.
7. If USCIS denies the Form I-212, the Subclass C Member may pursue administrative appeal and/or judicial review to the extent permitted by law.
8. Upon approval of a Subclass C Member’s Form I-212 (and any Form I-601), USCIS shall promptly notify the National Visa Center, advising that the Subclass C Member’s Form I-212 has been approved. Nothing in this agreement provides for the adjudication of a Form I-212 that requests permission to reapply for admission after re-entries that occurred after November 30, 2007.
9. Nothing in this agreement mandates approval of an immigrant visa application by the Department of State.
D. Nothing in this Agreement shall be interpreted to limit the authority or discretion of DHS to initiate administrative removal under section 238 of the INA against any Class Member. Nothing in this Agreement may be interpreted for any purpose to constitute consent to any non-Class Member reapplying for readmission after removal.
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E. Approval of the I-212 does not cure any ground of inadmissibility other than section 212(a)(9)(A) (if at issue and requested on the form) or (C)(i)(II) as sought and granted through the Form I-212.
V. DISPUTE RES OLUTION PROCEDURES; CONTINUING JURISDICTION A. The Court shall retain jurisdiction to supervise the implementation of this Agreement and to enforce its terms, and the terms of this Agreement shall be incorporated into the Order of the Court approving the Agreement.
B. The parties agree that the Court will not be asked to exercise jurisdiction to supervise the implementation of this Stipulation or to enforce its terms until exhaustion of the following dispute resolution process:
1. Should Class Counsel believe in good faith that DHS has failed to implement specific terms of this Agreement, Class Counsel will promptly notify counsel for Defendants, in writing, of the fact or facts that form the basis of the contention. Such notice must be substantiated with specific detailed information sufficient to enable DHS to investigate and respond. Within 45 days after receipt of the notice from Class Counsel, counsel for Defendants shall notify Class Counsel of Defendants’ position and any action it has taken or intends to take in connection therewith.
2. During the 90 days following the completion of the process outlined in paragraph 1, the parties shall negotiate in good faith in an effort to resolve any remaining disputes. The parties agree that this negotiation period will be considered exhausted if the parties jointly determine that negotiations have reached an impasse.
3. If the parties are unable to resolve any issues raised between them, after exhausting all of the applicable procedures in paragraphs 1 and 2, class counsel must raise the claim, including any challenge to a determination regarding class membership, before a Magistrate Judge of the Western District of Washington upon which all parties agree and who shall hear, mediate, and, to the fullest extent possible, obtain the agreement of both parties to resolve the issue(s) in dispute. Where both parties acknowledge that the claim is not amenable to negotiation before the Magistrate Judge, class counsel may then request that the district court exercise jurisdiction to resolve the dispute.
4. If the parties do not reach resolution within 60 days after commencement of negotiations before the Magistrate Judge, a party may then request that the district court exercise jurisdiction to resolve the dispute.
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5. The parties agree that the mediation process shall be conducted confidentially and that no public disclosure shall be made relating to the dispute before or during the mediation process. All documents and information disclosed by either party during the mediation process shall not be admissible in any judicial proceeding. All statements or conclusions of the mediator shall not be admissible in any subsequent judicial proceeding.
C. The parties agree that any action or proceeding to enforce the terms of this Agreement shall be brought exclusively in the United States District Court for the Western District of Washington at Seattle, the Hon. Marsha J. Pechman presiding. Nothing in this agreement provides jurisdiction over decisions reserved for the Courts of Appeals in conjunction with a petition for review under 8 U.S.C. § 1252 or not subject to judicial review under 8 U.S.C. § 1252.
VI. TERMS OF ORDER FOR NOTICE, HEARING AND FINAL JUDGMENT
A. Concurrently with their filing of this Agreement, Class Counsel and Defendants’ Counsel shall jointly apply to the Court for Preliminary Approval of the Settlement provided for in this Agreement, approval of the modification of the Class Definition, and entry of a Preliminary Approval Order. Such Preliminary Approval will seek approval of a Notice to the Class substantially in the form appended hereto as Exhibit A, as well as a finding that the following satisfies the publication requirements of Rule 23 of the Federal Rules of Civil Procedure: Within five (5) business days of the date of the Preliminary Approval, (i) posting the Notice to the Class and this Settlement Agreement in appropriate places on the USCIS public website; (ii) providing the Notice to the Class and this Agreement to USCIS’ Community Relations Program for distribution to the existing network of community-based and non-profit organizations who provide advice and assistance to immigrants in the Ninth Circuit Court of Appeals; and (iii) providing the Notice to the Class and this Agreement in appropriate places on the websites of Class Counsel.
B. If the Settlement contemplated by this Agreement is approved by the Court, counsel for the parties shall request that the Court enter a Final Judgment substantially in the form appended hereto as Exhibit B.
C. Within 24 months of the effective date, Defendants will provide Class Counsel with a final run of the Class Member list, which will include all identified Class Members and identify whether each Class Member has requested reopening and the result of that request, if any.
D. Within ten (10) business days following the Court’s entry of the Final Judgment, Defendants will provide the Notice of Final Settlement to all potential Class Members identified under Section III of
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this Agreement by U.S. Mail to their last address provided to USCIS. A copy of the notice is attached as Exhibit C.
VII. EFFECTIVE DATE OF SETTLEMENT; TERMINATION
A. The Effective Date of this Agreement shall be the date when all of the following shall have occurred: (a) entry of the Preliminary Approval Or der; (b) approval by the Court of this Agreement, following notice to the Class and a fairness hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure; and (c) entry by the Court of Final Judgment, in all material respects in the form appended hereto as Exhibit B.
B. In the event that the Court does not approve the Agreement, or the Court’s approval of the Agreement or the Final Judgment is reversed, vacated, or terminated, on appeal, the parties’ goodfaith adherence to the terms of this Agreement prior to said reversal, vacatur, or termination shall not be considered unlawful.
C. Defendants’ Counsel or Class Counsel shall have the right to terminate this Agreement by providing written notice of their election to do so (“Termination Notice”) to all othe r parties hereto within thirty (30) da ys of (a) the Court’s declining to enter the Prelim inary Approval Order or modifying that Preliminary Approval Order in any material respect; (b) the Court’s declining to approve the Settlement embodied in this Agreement or any m aterial part of it; (c) the C ourt’s declini ng to enter t he Final Judgment or modifying the Final Judg ment in an y material respect; or (d) th e Court of A ppeals or the United States Suprem e Court’s reversing, vacating, or m odifying in an y m aterial way the Fina l Judgment.
D. Except as otherwise provided herein, in the event the Settlement is terminated or modified in any material respect or fails to become effective for any reason, then the Settlement shall be without prejudice and none of its terms shall be effective or enforceable; the parties to this Agreement shall be deemed to have reverted to their respective status in the Action as of the date and time immediately prior to the execution of this Agreement; and except as otherwise expressly provided, the parties shall proceed in all respects as if this Agreement and any related orders had not been entered. In the event the Settlement is terminated or modified in any material respect, the parties shall be deemed not to have waived, not to have modified, or not be estopped from asserting any additional defenses or arguments available to them.
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VIII. TERMINATION OF OBLIGATIONS
Unless earlier terminated by operation of Section VII, the obligations of this Agreement shall terminate
within 30 months of the Effective Date. All timely filed applications or adjudications that remain pending will continue to be treated under the terms of this agreement until a final adjudication.
IX. NO ADMISSION OF WRONGDOING
A. This Agreement, whether or not executed, and any proceedings taken pursuant to it:
1. shall not be construed to waive, reduce, or otherwise diminish the authority of the Defendants
to enforce the laws of the United States against Class Mem bers, consistent with the Constitution and laws of the United States, and applicable regulations;
2. shall not be offered or received against the Defendants as evidence of, or construed as or
deemed to be evidence of, any presumption, concession, or admission by any of the Defendants of the truth of any fact all eged by the Plaintiffs or the validity of any claim that had been or could have been asserted in the Action or in any litigation, or the deficiency of any defense that has been or could have been asserted in the Action, or of any liability, negligence, fault, or wrongdoing of the Defendants; or any ad mission by the Defendants of any violations of, or failure to comply with, the Constitution, laws or regulations; and
3. shall not be offered or received against the Defendants as evidence of a presumption,
concession, or admission of any liability, negligence, fault, or wrongdoing, or in any way referred to for any other reason as against any of the parties to this Agreement, in any other civil, cri minal, or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Agreement; provided, however, that if this Agreement is approved by the Court, Defendants may refer to it and rely upon it to effectuate the liability protection granted them hereunder.
X. ATTORNEYS’ FEES
All parties agree to bear their own costs and fees, inc luding attorneys’ fees, which could be or could have been clai med in t he Action. However, in t he even t that Class Counsel seek t o enforce the ter ms of the instant settlement agreement pursuant to Section V.C ., nothing in this settlem ent agreement shall b e interpreted as precluding Plaintiffs’ from seeking attorneys’ fees solely for such enforcement action.
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XI. ADDITIONAL PROVISIONS
A. This Agreement, and the obligations incurred herein, shall be in full and final disposition of the Action with prejudice, including any and all Settled Claims against Defendants. On the Effective Date, Plaintiffs and the Plaintiff Class shall be deemed to have fully, finally, and forever released, relinquished, and discharged Defendants of and from any and all Settled Cl aims.
B. All of the exhibits attached hereto are hereby incorporated b y reference as though fully set forth herein.
C. This Agreement may not be modified or amended, nor may any of its pr ovisions be waived except by a writing signed by all parties hereto or their successors-in-interest.
D. The waiver by one party of any breach of this Agreement by any other party shall not be deemed a waiver of any other prior or subsequent breach of this Agreement.
E. This Agreement and its exhibits constitute the entire agreement among the parties hereto concerning the Settlement of the Action, and no representations, warranties, or inducements have been made by any party hereto other than those contained and memorialized in such documents.
F. This Agreement may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument provided that counsel for the parties to this Agreement shall exchange among themselves original signed counterparts.
G. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto.
H. This Agreement shall not be construed more strictly against one party than another merely by virtue of the fact that it, or an y part of it, may have been prepared by counsel for one of the parties, it being recognized by the parties that this Agreem ent is th e result of neg otiations between the parties and that all parties have contributed substantially and materially to the preparation of this Agreement.
I. All counsel and any other person executing this Agreement and any of the exhibits hereto, or any related settlement documents, warrant and represent that they have the full authority to do so and that they have the authority to take appropriate action required or permitted to be taken under the Agreement to effectuate its terms.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AURELIO DURAN GONZALES; MARIA C. ESTRADA; MARIA LUISA MARTINEZ DE MUNGUIA; IRMA PALACIOS DE BANUELOS; LUCIA MUNIZ DE ANDRADE; KARINA NORIS; ADRIANA POUPARINA,
Plaintiffs-Appellants,
v.

No. 09-35174
D.C. No. 2:06-cv-01411-
MJP
ORDER AND 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.

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2 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 their action seeking to adjust status and waive inadmissibility.
In the superseding opinion, the panel vacated the district court’s judgment and orders denying plaintiffs’ motions to amend class certification and to file an amended complaint, following remand in Duran Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) (“Duran Gonzales I”), which held that plaintiffs were ineligible to adjust status because they were not eligible to receive I-212 waivers because the requisite ten-year period had not elapsed since they last departed from the United States. The panel remanded for reconsideration of plaintiffs’ motions to amend to add a challenge to the retroactive application of Duran Gonzales I, in light of the new retroactivity test set forth in the intervening en banc decision in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012).
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 3
Dissenting, Judge Callahan would affirm the district court’s dismissal of petitioners’ case. She would find that this court’s adoption of a new rule in 2012 in the unrelated case Garfias-Rodriguez does not change the retroactivity of the original 2007 opinion in this case. Judge Callahan would rather hold that under the prudential law-of-the-case doctrine, Duran Gonzales I remains retroactive and applicable to petitioners.
COUNSEL
Matt Adams (argued), Northwest Immigrant Rights Project, Seattle, Washington; Trina Realmuto, Beth Werlin, American Immigration Law Foundation, Washington, D.C.; Marc Van Der Hout, Stacy Tolchin, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California, for PlaintiffsAppellants.
Elizabeth J. Stevens (argued) and Sherease Pratt, United States Department of Justice, Washington, D.C.; Priscilla ToYin Chan, Office of the United States Attorney, Seattle, Washington, for Defendant-Appellees.
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.

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4 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
OPINION
SILVERMAN, Circuit Judge:
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 I-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 disagreed with aspects of that decision and construed the statutory scheme to require satisfaction of the ten-year requirement, even for I-212 waiver applicants already unlawfully present in the United States. On the first appeal in this matter, we deferred to the BIA’s reasonable statutory interpretation, citing National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 981–85 (2005). Duran Gonzales v. DHS, 508 F.3d 1227, 1235–39, 1242 (9th Cir. 2007) (“Duran Gonzales I”). Ninth Circuit law thereby became consistent with the agency’s position.
On remand, rejecting Plaintiffs’ objections and motions, the district court concluded the BIA’s rule would have full

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 5
retroactive effect, denied motions to amend the complaint and class definition as futile, and dismissed this class action. We affirmed this ruling in October 2011, but stayed the mandate pending the resolution of en banc proceedings in GarfiasRodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc). Ultimately, that decision changed the retroactivity test for cases in which Brand X mandates deference to an agency’s statutory interpretation, even if there is a contrary prior Ninth Circuit case. Because the mandate never issued for our opinion on this appeal and there has been an intervening change in authority, we decline to apply the putative law of the case, vacate the district court’s judgment, and remand for reconsideration of the motions to amend the complaint and class definition in light of the new retroactivity test set forth in Garfias-Rodriguez.
BACKGROUND
Plaintiffs were all previously deported or removed and then unlawfully reentered the United States. After returning to the United States, they filed applications for adjustment of status under 8 U.S.C. § 1255. That statute “allowed the Attorney General to adjust the status of an alien who had entered the United States without inspection to that of a legal permanent resident provided that the alien (1) was admissible to the United States and the beneficiary of an immediately available immigrant visa, and (2) paid an application fee five times the usual fee.” Duran Gonzales I, 508 F.3d at 1230.
Plaintiffs’ path to adjustment of status was complicated by two provisions of the Illegal Immigration Reform and Immigration Responsibility Act of 1996. The first appeared to deny Plaintiffs relief. 8 U.S.C. § 1231(a)(5) provides “for automatic reinstatement of an alien’s prior removal or

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6 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
deportation order when an alien has reentered the United States illegally,” and further provides that “‘the alien is not eligible and may not apply for any relief’ from removal.” Duran Gonzales I, 508 F.3d at 1230 (quoting 8 U.S.C. § 1231(a)(5)).
The second section suggested a possible exception to this bar. Although 8 U.S.C. § 1182(a)(9)(C)(i)(II) renders inadmissible any previously removed alien “who enters or attempts to reenter the United Sates without being admitted,” Section 1182(a)(9)(C)(ii) creates an exception for:
an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien’s reapplying for admission.
8 U.S.C. § 1182(a)(9)(C)(ii). Two apparent requirements for this exception became the subject of litigation in this Circuit: (1) that the application be made from outside the United States; and (2) that the alien request the waiver more than ten years after his or her last departure from the United States.1
Plaintiffs sought Form I-212 waivers of inadmissibility pursuant to 8 U.S.C. § 1182(a)(9)(C)(ii) and 8 C.F.R. § 212.2 from within the United States, and applications for
1 A recent decision interprets the ten-year bar to require the alien to spend ten years outside the United States. Carrillo de Palacios v. Holder, No. 09-72059, 2013 WL 310387, at *6 (9th Cir. Jan. 28, 2013).

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 7
adjustment of status under 8 U.S.C. § 1255(i). United States Citizenship and Immigration Services denied three of the Plaintiffs’ applications on the ground that the ten-year period had not elapsed since the dates of the applicants’ last departures from the United States.2 8 U.S.C. § 1182(a)(9)(C)(ii). Allegedly, Plaintiffs took these steps to secure waivers in reliance on our opinion in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). Perez-Gonzalez held that an alien could apply for a Form I-212 waiver from within this country: “[T]he INS committed legal error when it concluded that Perez-Gonzalez could not apply for a Form I-212 waiver from within this country.” 379 F.3d at 789. Perez-Gonzalez also “concluded that an alien who was inadmissible under section 212(a)(9)(C)(i) of the Act could apply for a waiver under 8 C.F.R. § 212.2 even though the alien’s last departure from the United States occurred . . . less than 10 years prior to the date of his request for consent to reapply for admission.” Matter of Torres-Garcia, 23 I. & N. Dec. 866, 876 (BIA 2006) (citing Perez-Gonzalez, 379 F.3d at 794 n.10); see also Duran Gonzales I, 508 F.3d at 1241.
In January 2006, the Board of Immigration Appeals ruled in Matter of Torres-Garcia that individuals such as Plaintiffs were not eligible for relief, since an I-212 waiver of inadmissibility requires the alien’s compliance with the statutory “ten-year bar,” even if that alien is applying from within the United States. 23 I. & N. Dec. at 876; MoralesIzquierdo v. DHS, 600 F.3d 1076, 1079 (9th Cir. 2010)
2 Our 2007 decision in this case stated that: “The I-212 waiver application is pending in four of the cases and has been denied, along with the adjustment of status applications, in the remaining three cases.” Duran Gonzales I, 508 F.3d at 1231.

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8 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
(citation and quotation marks omitted).3 DHS subsequently issued a “memorandum direct[ing] field officers that an alien inadmissible under § 212(a)(9)(C) could not file for consent to reapply until that alien had lived abroad for 10 years.” Gonzalez v. DHS, No. C06-1411-MJP, 2009 WL 302283, at *2 (W.D. Wash. Feb. 6, 2009). In September 2006, Plaintiffs filed suit to challenge this memorandum as a violation of Perez-Gonzalez and sought injunctive and declaratory relief, a temporary restraining order, and class certification. Gonzalez v. DHS, No. C06-1411-MJP, 2009 WL 506848, at *2 (W.D. Wash. Feb. 27, 2009).4 The district court certified Plaintiffs’ proposed class and issued a preliminary injunction. Gonzales v. DHS, 239 F.R.D. 620, 627, 629 (W.D. Wash. 2006).
3 The BIA reasoned:
Perez-Gonzalez allows an alien to obtain a section 212(a)(9)(C)(ii) waiver nunc pro tunc even though such a waiver would have been unavailable to him had he sought it prospectively, thereby placing him in a better position by asking forgiveness than he would have been in had he asked permission. Such an interpretation contradicts the clear language of section 212(a)(9)(C)(ii) and the legislative policy underlying section 212(a)(9)(C) generally. We find that the more reasonable interpretation of the statutory framework discussed above is that an alien may not obtain a waiver of the section 212(a)(9)(C)(i) ground of inadmissibility, retroactively or prospectively, without regard to the 10-year limitation set forth at section 212(a)(9)(C)(ii).
Matter of Torres-Garcia, 23 I. & N. Dec. at 876.
4 In both of these 2009 district court case captions, Duran Gonzales’s surname is misspelled.

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 9
The government filed an interlocutory appeal, and in Duran Gonzales I, we held that, pursuant to the Supreme Court’s decision in Brand X, 545 U.S. at 981–85, we were compelled to follow the BIA’s 2006 opinion in TorresGarcia. In Brand X, the Supreme Court “held that the circuit court must apply Chevron deference to an agency’s interpretation of a statute regardless of the circuit court’s contrary precedent, provided that the court’s earlier precedent was an interpretation of a statutory ambiguity.” Duran Gonzales I, 508 F.3d at 1235–36 (citing Brand X, 545 U.S. at 980–82). In our 2007 opinion in Duran Gonzales I, we held that because the BIA’s Torres-Garcia ruling was a “clearly reasonable” interpretation of a statute by the agency charged with interpreting and enforcing the statute, and because our prior opinion in Perez-Gonzalez was based on the statute’s ambiguity, Brand X required that we defer to the BIA’s interpretation. Id. at 1237–39, 1242. Our opinion stated that, “[p]ursuant to In re Torres-Garcia, plaintiffs as a matter of law are not eligible to adjust their status because they are ineligible to receive I-212 waivers.” Id. at 1242. Accordingly, we vacated the district court’s injunction and remanded the matter. Id. at 1242–43.
Plaintiffs filed a petition for rehearing and suggestion for rehearing en banc which included an argument that the opinion should not be applied retroactively. The panel denied the petition for rehearing, a majority of the active judges declined the suggestion for rehearing en banc, and our mandate issued in January 2009, over a year after the opinion was filed.
On remand, Plaintiffs sought to prevent the retroactive application of Duran Gonzales I to class members whose I212 waiver applications were filed prior to that decision and

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10 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
in purported reliance on preexisting Ninth Circuit precedent. Gonzalez, 2009 WL 302283, at *4; Gonzalez, 2009 WL 506848, at *4. To this end, they filed a motion to amend the complaint to add a challenge to Duran Gonzales I’s retroactive application as well as a motion to amend the class definition and narrow it to a subset of the certified class. Id. at *3. In the first of a pair of orders, the district court held that Duran Gonzales I was binding and denied Plaintiffs’ motion for provisional class certification and preliminary injunctive relief. Gonzalez, 2009 WL 302283, at *4. It rejected Plaintiffs’ argument against retroactivity because “[t]he Circuit Court stated conclusively that the BIA’s interpretation of the statute applied to Plaintiffs,” and held that “[t]he retroactive application of Torres Garcia is simply not an open question before this Court.” Id. The district court proceeded to deny Plaintiffs’ motions to amend the class definition and for leave to file an amended complaint as futile because neither amendment could change the presumptive retroactive effect of Duran Gonzales I. Gonzalez, 2009 WL 506848, at *4. The court then dismissed the action. Id. Plaintiffs timely appealed, arguing that Duran Gonzales I should be given prospective effect only.
On October 25, 2011, we issued Duran Gonzales II, the original version of this opinion, expressly holding that Duran Gonzales I would have full retroactive effect. Duran Gonzales v. DHS, 659 F.3d 930, 939–41 (9th Cir. 2011) (“Duran Gonzales II”). However, we stayed the mandate pending the resolution of the en banc proceedings in GarfiasRodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc). Ultimately, that en banc decision issued and set forth a different test for retroactivity in Brand X cases, the multifactor inquiry articulated in Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982). Garfias-

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 11
Rodriguez, 702 F.3d at 517–20. The government urges us to apply the law-of-the-case doctrine and hold that Duran Gonzales I has already settled the retroactivity question for this case. We reject that argument and hold that the intervening en banc decision in Garfias-Rodriguez requires us to withdraw our prior opinion, vacate the district court’s judgment, and remand the case for further proceedings. The district court must decide in the first instance whether or not Plaintiffs’ dual motions to amend are still futile in light of this Court’s adoption of the Montgomery Ward retroactivity test for cases in which Brand X compels our deference to an agency’s statutory interpretation.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. Although the district court’s denial of leave to amend is reviewed for abuse of discretion, Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009), as is an order on class certification, Parra v. Bashas’, Inc., 536 F.3d 975, 977 (9th Cir. 2008), the essence of Plaintiffs’ appeal is that the district court erred in holding that Duran Gonzales I applied to them. This underlying conclusion of law is reviewed de novo. See Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647, 650 (9th Cir. 2007).
DISCUSSION
A. Whether Duran Gonzales I May Be Retroactively Applied Under Garfias-Rodriguez and Montgomery Ward.
This brings us to the question of whether Duran Gonzales I may still be retroactively applied in light of Garfias-

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12 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY Rodriguez. Duran Gonzales I did not expressly address retroactivity. Instead, the panel merely stated that Plaintiffs “as a matter of law are not eligible to adjust their status because they are ineligible to receive I-212 waivers.” 508 F.3d at 1242. But reaching this conclusion did not explicitly resolve the retroactivity question, and retroactivity was clearly presented to us on this second appeal, which resulted in an initial opinion affirming the retroactive application of Duran Gonzales I.5 Citing Harper v. Virginia Department of Taxation, 509 U.S. 86, 97–98 (1993), we stated that “[b]ecause this court applied its holding in [Duran Gonzales I] to the parties before it, the ruling is retroactive.” Duran Gonzales II, 659 F.3d at 939. We added that even if Duran Gonzales I could not be read as “clearly holding that it had retroactive application (by applying its ruling to the parties before it), the fact that [Duran Gonzales I] did not otherwise ‘reserve the question whether its holding should be applied to the parties before it’ would be dispositive.” Id. (quoting Harper, 509 U.S. at 97–98).
Our recent en banc opinion in Garfias-Rodriguez adopts a different test for retroactivity that is now the law of the Ninth Circuit. Although recognizing that when we decided Duran Gonzales I, the controlling Supreme Court rule held
5 Again, by a separate order, issued concurrently herewith, we have withdrawn that prior opinion.

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 13
that retroactive application was the presumptive norm,6 Garfias-Rodriguez adopted a different approach, holding:
[W]hen we overturn our own precedent following a contrary statutory interpretation by an agency authorized under Brand X, we analyze whether the agency’s statutory interpretation (to which we defer) applies retroactively under the test we adopted in Montgomery Ward [& Co., Inc. v FTC, 691 F.2d 1322, 1333 (9th Cir. 1982)] if the issue is fairly raised by the parties.
702 F.3d at 520. Garfias-Rodriguez held that such instances of Brand X deference must be treated as “if the agency had changed its own rules,” id. at 516, and thus changed the presumptive norms for cases such as this one to “allow[] us to take into account the intricacies of a Brand X problem.” Id. at 518. We explained that in applying the Montgomery Ward test, “we have done so on a case-by-case basis, for example, by analyzing whether a petitioner actually relied on
6 We noted:
The Supreme Court has emphasized that retroactive application is the presumptive norm, and implied that any exceptions to this rule must be narrow. Harper, 509 U.S. at 95–96. It has also emphasized that we are not to perform a retroactivity analysis on a case-by-case basis, but that we must decide whether a rule should be retroactive (or not) as applied to all cases currently pending. Id. at 96–97.
Garfias-Rodriguez, 702 F.3d at 517 (parallel citations omitted).

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14 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
a past rule, or by concluding that retroactivity as applied is impermissible.” Id. at 519 (emphasis in original).
We then proceeded to apply the five-factor Montgomery Ward test to Garfias-Rodriguez himself. The factors include:
(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.
Id. at 518 (quoting Montgomery Ward, 691 F.2d at 1333). We nonetheless concluded that Garfias-Rodriguez was not entitled to relief because the balance of factors favored the government. Id. at 523.
Plaintiffs argue that we should apply Garfias-Rodriguez to their case, vacate the district court’s dismissal of their action, and remand the case to the district court to apply the Montgomery Ward test in the first instance.

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 15
B. The Law-of-the-Case Doctrine Will Not Be Applied Here Where There Has Been An Intervening Change in Authority.
Before we can apply the Montgomery Ward test to Plaintiffs, we must consider whether the holding in GarfiasRodriguez should be applied to this case. The government argues that the law-of-the-case doctrine should be invoked to preclude its application here. We disagree.
In this context, the prudential law-of-the-case doctrine precludes one panel of an appellate court from reconsidering questions which have already been decided on a prior appeal in the same case. Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995). However, we have noted that there are exceptions to this prudential rule:
Although an appellate panel’s observance of the doctrine is discretionary, a prior decision should be followed unless (1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial.
Id. Having announced a retroactivity test for Brand X cases that is at odds with the analytical framework invoked in Duran Gonzales I, we are compelled to conclude that the legal change effected by Garfias-Rodriguez falls squarely within the second exception for “intervening controlling

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16 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY authority.”7 Accordingly, we will not apply the law-of-thecase doctrine to bar application of Garfias-Rodriguez.
C. Application of The Montgomery Ward Test on Remand
We have withdrawn our prior opinion on this appeal and hereby vacate the district court’s judgment. We will not decertify the class, since no such motion was made below. Instead, upon remand, the government will have an opportunity to file such a motion, if it so chooses. Plaintiffs will also have an opportunity to re-file any motions to amend the complaint and the class definition, as well as any motion for a preliminary injunction, if they so choose. If these motions are filed, the district court shall reconsider whether amendments to the complaint and class definition are still futile in light of the Montgomery Ward test and Federal Rule of Civil Procedure 23’s requirements for class actions.
We express no opinion on the viability of any claims or any class or subclass definitions under the analytical framework announced in Garfias-Rodriguez–i.e., whether the Montgomery Ward factors can be adjudicated on a class-wide basis. Particularly given the stage of this litigation and the fact that the record has not been fully developed, as in
7 The withdrawn panel decision from this second appeal relied in part on Morales-Izquierdo, 600 F.3d at 1089, which rejected the application of the multi-factor Montgomery Ward test for retroactivity where the courts defer to the BIA’s interpretation of a statute. Duran Gonzales II, 659 F.3d at 935–36 & n.3. That case and our reliance on it were expressly overruled by the en banc court in Garfias-Rodriguez. 702 F.3d at 516.

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 17 Garfias-Rodriguez,8 it would not be proper for us to apply that test in the first instance. Cf. Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1161 (9th Cir. 2001) (holding that where “the factual record is sufficiently well developed . . . we may evaluate for ourselves whether the provisions of Rule 23 have been satisfied” and no remand is necessary).
CONCLUSION
The district court’s judgment is VACATED, and this case is REMANDED for further proceedings consistent with this opinion.
CALLAHAN, Circuit Judge, 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 I-212 waivers.” Duran Gonzales v. DHS, 508 F.3d 1227, 1242 (9th Cir. 2007) (“Duran Gonzales I”). 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 93 (9th Cir. 2011), and petitioners filed a petition for rehearing and rehearing en banc. Thereafter, in October 2012, we issued an en banc
8 See also Carrillo de Palacios, 2013 WL 310387, at *4–5 (applying Montgomery Ward test to petitioner’s case where complete administrative record was available on petition for review of a BIA decision).

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18 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
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 an appellate court from reconsidering questions that have already been decided on a prior appeal in the same case. In Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995), we explained:
“Under the law of the case doctrine, one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case.” Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991) (internal quotations and brackets omitted). Although an appellate panel’s observance of the doctrine is discretionary, a prior decision should be followed unless (1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial. Id. The doctrine, however, applies only to issues considered and actually decided by the first court. United

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 19
States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995).
We reiterated our understanding of the doctrine in Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. U.S. Department of Agriculture, 499 F.3d 1108, 1114 (9th Cir. 2007), stating:
[T]he district court should abide by “the general rule” that our decisions at the preliminary injunction phase do not constitute the law of the case. See id.; see also City of Anaheim v. Duncan, 658 F.2d 1326, 1328 n.2 (1981). Any of our conclusions on pure issues of law, however, are binding. See This That And The Other Gift And Tobacco, Inc. v. Cobb County, 439 F.3d 1275, 1284–85 (11th Cir. 2006); 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4478.5 (2002) (“A fully considered appellate ruling on an issue of law made on a preliminary injunction appeal . . . become[s] the law of the case for further proceedings in the trial court on remand and in any subsequent appeal.”).
The prudential considerations underlying the law-of-thecase doctrine support its application here. In Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 815–16 (1988), the Supreme Court noted that:
“As most commonly defined, the doctrine [of the law of the case] posits that when a court decides upon a rule of law, that decision

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20 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391, 75 L. Ed.2d 318 (1983) (dictum). This rule of practice promotes the finality and efficiency of the judicial process by “protecting against the agitation of settled issues.” 1B J. Moore, J. Lucas, & T. Currier, Moore’s Federal Practice ¶ 0.404[1], p. 118 (1984).
II
Duran-Gonzales was decided in 2007. Its holding is clear: “plaintiffs as a matter of law are not eligible to adjust their status because they are ineligible to receive I-212 waivers.” 508 F.3d at 1242. There is no reasonable argument that the decision was not clear and dispositive. Indeed, the district court properly found it to be clear and dispositive, and it has been cited by numerous courts.
Although the majority relies on the second exception in Hegler to jettison the law-of-the-case doctrine in this case, none of the three exceptions require or justify such a course. See Hegler, 50 F.3d at 1475.
First, the decision in Duran Gonzales I is not clearly erroneous, nor will its enforcement work a manifest injustice. Garfias-Rodriguez, 702 F.3d at 511, affirmed Duran Gonzales I’s underlying decision to apply the BIA’s decision in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), rather than the Ninth Circuit’s prior opinion in PerezGonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). Moreover, Garfias-Rodriguez recognizes that Duran

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 21
Gonzales I properly applied the then-applicable standard for retroactivity. Garfias-Rodriguez, 702 F.3d at 517. Citing such Supreme Court cases as Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), and Harper v. Virginia. Department of Taxation, 509 U.S. 86 (1993), the en banc opinion noted:
The Supreme Court has emphasized that retroactive application is the presumptive norm, and implied that any exceptions to this rule must be narrow. Harper, 509 U.S. at 95–96, 113 S. Ct. 2510. It has also emphasized that we are not to perform a retroactivity analysis on a case-by-case basis, but that we must decide whether a rule should be retroactive (or not) as applied to all cases currently pending. Id. at 96–97, 113 S. Ct. 2510.
Garfias-Rodriguez, 702 F.3d at 517. The opinion then explicitly states that it is adopting a “new rule” that it believed to be a “better fit for this situation,” where National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”), mandates deference to an agency’s statutory interpretation, that is contrary to a prior Ninth Circuit opinion. Id. at 518. Thus, Garfias-Rodriguez does not suggest that either the substantive decision in Duran Gonzales I or its retroactive application was “clearly erroneous.”
Nor does a review of Garfias-Rodriguez’s application of the multi-factor inquiry in Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982), suggest that applying Duran Gonzales I’s substantive holding to the petitioners “would work a manifest injustice.” Hegler, 50 F.3d at 1475.

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22 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
In Garfias-Rodriguez, we applied the Montgomery Ward criteria to Garfias-Rodriguez and concluded that he did not qualify for relief. Garfias-Rodriguez, 702 F.3d at 523. Because the policies behind the application of the criteria are similar for both cases, the result here is likely to be the same. As in Garfias-Rodriguez, the second and fifth factors favor the government. Id. at 521–23. In light of the government’s interpretation of the underlying statutes, the support for that position by other circuit courts, and the BIA’s decision in Torres-Garcia, Duran Gonzales I was neither “an abrupt departure from well established practice” nor a “complete surprise.” Id. at 521. Also, the statutory interest in applying the new rule is at least as great here as in Garfias-Rodriguez, which recognized that “non-retroactivity impairs the uniformity of a statutory scheme and the importance of uniformity in immigration law is well established.” Id. at 523. Assuming that here, as in Garfias-Rodriguez, the first factor does not apply,1 and the fourth factor – the degree of
1 In Garfias-Rodriguez, we noted that the first factor – whether the particular case is one of first impression – “may not be as well suited to the context of immigration law,” and noted that in any event, “any question of unfairness in applying a new rule in cases of ‘first impression’ or ‘second impression,’ such as surprise or detrimental reliance, is fully captured in the second and third Montgomery Ward factors.” 702 F.3d at 521. However, if the first factor is applied, it favors the government because the agency has consistently held that an alien could not apply for reinstatement from within the United States within ten years of having been removed. Thus, neither Perez-Gonzalez nor Duran Gonzales I was a case of first impression, but rather represented different stages in the continuing dialogue between the agency and the Ninth Circuit.

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 23
burden – favors petitioners,2 they would have to make a strong showing on the second factor, reliance, just to balance the factors. But petitioners would be hard pressed to make such a showing.3 The opinion in Garfias-Rodriguez suggests that incurring an additional filing fee and disclosing one’s illegal presence in the United States may not constitute reliance. See 702 F.3d at 522; see also Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44–46 (2006).4 Thus, it does not
2 In Garfias-Rodriguez, we noted:
Although the relief he applied for is ultimately discretionary, “‘[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation.’” Miguel–Miguel [v. Gonzales], 500 F.3d [941], 952 (quoting INS v. St. Cyr, 533 U.S. 289, 325, 121 S. Ct. 2271, 150 L. Ed.2d 347 (2001)). Furthermore, “deportation alone is a substantial burden that weighs against retroactive application of an agency adjudication.” Id.
702 F.3d at 523.
3 Our opinion in Garfias-Rodriguez notes that the “second and the third factors are closely intertwined,” and that “[w]e have made it clear in this circuit that these two factors will favor retroactivity if a party could reasonably have anticipated the change in the law such that the new requirement would not be a complete surprise.” 702 F.3d at 521 (citation and internal quotation marks omitted).
4 The Supreme Court commented:
[I]t is the conduct of remaining in the country after entry that is the predicate action; the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country. It is therefore the alien’s choice to continue

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24 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY appear that maintaining Duran Gonzales I’s retroactivity would work a “manifest injustice.”
The third Hegler exception does not apply because no trial was held on remand. Moreover, petitioners’ effort on remand to challenge Duran Gonzales I’s retroactive effect and to narrow the class did not present “substantially different evidence.” Hegler, 50 F.3d at 1475.
The majority, however, reasons in just a single sentence, that the second Hegler exception is met. It states: “Having announced a retroactivity test for Brand X cases that is at odds with the analytical framework invoked in Duran Gonzales I, we are compelled to conclude that the legal change effected by Garfias-Rodriguez falls squarely within the second exception for ‘intervening controlling authority.’” Maj. at 15–16.
But Garfias-Rodriguez is not an “intervening controlling authority.” First, it comes after the issuance of our mandate in Duran Gonzales I. Second, as noted, Garfias-Rodriguez accepted that the court should defer to the intervening
his illegal presence, after illegal reentry and after the effective date of the new law, that subjects him to the new and less generous legal regime, not a past act that he is helpless to undo up to the moment the Government finds him out. 548 U.S. at 44.

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 25
agency’s decision.5 702 F.3d at 511. Thus, GarfiasRodriguez agrees with the substance of Duran Gonzales I. Indeed, Garfias-Rodriguez accepted the Board of Immigration Appeals decision in In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007), and held that it was reasonable and entitled to deference.6 702 F.3d at 514.
The en banc court then applied its ruling to GarfiasRodriguez and in doing so adopted a new rule. But Garfias-
5 The en banc court explained:
[W]e addressed the effect of Torres–Garcia in Duran Gonzales I, 508 F.3d 1227. Applying the framework established by Chevron and Brand X, we deferred to the BIA’s interpretation of § 212(a)(9)(c) in Torres– Garcia, and overruled Perez–Gonzalez. Id. at 1242. We found that in Perez–Gonzalez we had determined that the relevant sections of the INA were ambiguous and that the BIA had not, at that time, issued a controlling decision that resolved this ambiguity. Id. at 1237–38; see Brand X, 545 U.S. at 982, 125 S. Ct. 2688. We concluded that the BIA’s interpretation of § 212(a)(9)(C)(i)(II) in Torres–Garcia was “clearly reasonable and is therefore entitled to Chevron deference under Brand X.” Duran Gonzales I, 508 F.3d at 1242. Accordingly, we concluded that “we are bound by the BIA’s interpretation of the applicable statutes in In re Torres–Garcia, even though that interpretation differs from our prior interpretation in Perez–Gonzalez.” Id.
702 F.3d at 511.
6 The en banc opinion states: “We conclude that aliens who are inadmissible under § 212(a)(9)(C)(i)(I) are not eligible for adjustment of status under § 245(i), and overrule Acosta to the extent it holds otherwise.” Garfias-Rodriguez, 702 F.3d at 514.

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26 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY
Rodriguez says nothing about the law-of-the-case doctrine, and does not indicate that it was to be applied retroactively to past instances in which the Ninth Circuit had deferred to an intervening agency decision pursuant to Brand X.7 Rather, in light of the facts that the application of the new standard did not result in any relief to Garfias-Rodriguez, and that five judges took exception to the majority opinion in five different opinions, it seems questionable that the six judges in the majority contemplated that the new standard they were adopting would be applied retroactively. If they had, one would have expected them to so indicate. Instead, they held that the Montgomery Ward standard was to be applied on a case-by-case basis where the issue is fairly raised.8 702 F.3d at 519–20.
Here, the retroactivity of Duran Gonzales I is not fairly raised. Duran Gonzales I stated that, as a matter of law, petitioners were “not eligible to adjust their status because they are ineligible to receive I-212 waivers.” 508 F.3d at 1242. Petitioners sought rehearing and rehearing en banc, but their request was denied and our mandate issued on January 23, 2009. That should have been the end of the matter.
7 Garfias-Rodriguez did not present a law-of-the-case issue because there was no final decision by the Ninth Circuit. Although a three-judge panel had initially denied Garfias-Rodriguez’s claim for relief, GarfiasRodriguez v. Holder, 649 F.3d 942, 953 (9th Cir. 2011), that opinion never became final and was superseded by our grant of rehearing en banc. See Garfias-Rodriguez v. Holder, 672 F.3d 1125 (9th Cir. 2011).
8 The direction that the Montgomery Ward standard is to be applied case-by-case raises questions as to whether a class action can be maintained when a relief turns on the application of the individualized inquiry set forth in Montgomery Ward. The majority leaves it to the district court to wrestle with this issue in the first instance.

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GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 27
Petitioners, however, persisted in reiterating their arguments concerning retroactivity both in the district court and this court until, well after we had issued an opinion denying their second appeal, their argument found favor in another case concerning another statute.
Petitioners’ persistence may be admirable, but this is precisely the type of situation that is covered by the law-ofthe-case doctrine. Otherwise, the orderly development of the law will be inhibited as panels may be reluctant to make adjustments for fear they will undermine prior final decisions. Also, parties will be encouraged to follow petitioners’ lead and continually raise already-decided issues in the hope that during the resulting delay some decision will issue that supports their perspective.
The prudential concerns underlying the law-of-the-case doctrine should be controlling where, as here, the question is whether a new Ninth Circuit opinion in a separate and distinct case, which adopts a new rule of retroactivity, should apply to a ruling that has been final for years. Petitioners, whose claims were determined to be barred as a matter of law in Duran Gonzales, now find themselves fortuitously again before the Ninth Circuit. Because I would find that petitioners’ situation does not come within any of the three exceptions to the law-of-the-case doctrine that we recognized in Hegler, 50 F.3d at 1475, I would hold that our 2012 decision in Garfias-Rodriguez does not change the retroactivity of our 2007 opinion in Duran Gonzales I. Accordingly, I would affirm the district court’s dismissal of petitioners’ case.

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 AURELIO DURAN GONZALEZ,

CASE NO. C06-1411-MJP

11

Plaintiff,

12

v.

13 US DEPARTMENT OF HOMELAND SECURITY, et al.,
14 Defendants.
15

ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, AMENDMENT OF THE CLASS DEFINITION, AND APPROVAL OF NOTICE TO CLASS

16 This matter comes before the Court on the joint motion of Plaintiffs Aurelio Duran
17 Gonzalez, et al., and Defendants United States Department of Homeland Security, et al., (Dkt.
18 No. 98) requesting that the Court:
19 1. Preliminarily approve the Settlement Agreement and Release (“Settlement”).
20 (Ex. A.)
21 2. Amend the Definition of the certified class to the Definition agreed in the
22 Settlement. (Ex. A, Part I, Section D.)
23

24 ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, AMENDMENT OF THE CLASS DEFINITION, AND APPROVAL OF NOTICE TO CLASS- 1

1

3. Approve the Notice of Proposed Settlement Agreement and Hearing in Class

2

Action (“Notice of Proposed Settlement”). (Ex. B.)

3

4. Find that the provisions in the Settlement for the Notice of Proposed Settlement

4

Agreement and Hearing in Class Action satisfy the notice requirements of

5

Federal Rule of Civil Procedure 23(e)(1)(B).

6

5. Set a fairness hearing for final determination on whether the Settlement is fair,

7

reasonable, and adequate.

8 Having considered the parties’ joint motion and all documents submitted in support thereof, the

9 Court GRANTS the parties’ motion.

10 IT IS ORDERED that the Settlement Agreement and Release (ECF No. xx-1) is preliminarily

11 APPROVED;

12 IT IS FURTHER ORDERED that the Class Definition is amended as follows:

13

“Any person who:

14

1. Is the beneficiary or derivative beneficiary of an immigrant visa petition or labor

15

certification filed on or before April 30, 2001, provided that, if the immigrant

16

visa petition or labor certification was filed after January 14, 1998:

17

a.

the beneficiary was physically present in the United States on

18

December 21, 2000, or

19

b.if a derivative beneficiary, the derivative beneficiary or the primary

20

beneficiary was physically present in the United States on December 21,

21

2000.

22

2. Is inadmissible to the United States under section 212(a)(9)(C)(i)(II) of the

23

Immigration and Nationality Act (“INA”), because he or she entered or

24 ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, AMENDMENT OF THE CLASS DEFINITION, AND APPROVAL OF NOTICE TO CLASS- 2

1

attempted to reenter the United States without being admitted after April 1,

2

1997, and without permission after having previously been removed;

3

3. Properly filed a Form I-485 (Application to Adjust Status) and Form I-485

4

Supplement A (Adjustment of Status Under Section 245(i)) while residing

5

within the jurisdiction of the Ninth Circuit on or after August 13, 2004, and on

6

or before November 30, 2007;

7

4. Filed a Form I-212 (Application for Permission to Reapply for Admission Into

8

the United States After Deportation or Removal) on or after August 13, 2004,

9

and on or before November 30, 2007;

10

5. Form I-485, Form I-485 Supplement A, and Form I-212 were denied by U.S.

11

Citizenship and Immigration Services (“USCIS”) and/or the Executive Office

12

for Immigration Review (“EOIR”) on or after August 13, 2004, or have not yet

13

been adjudicated;

14

6. Is not currently subject to pending removal proceedings under INA § 240, or

15

before the United States Court of Appeals for the Ninth Circuit on a petition for

16

review of a removal order resulting from proceedings under INA § 240; and

17

7. Did not enter or attempt to reenter the United States without being admitted

18

after November 30, 2007.

19

Class members are further divided into three subclasses, as follows:

20

1. Subclass A: Class Members (i) who have remained physically present in the

21

United States since the filing of the Form I-485, Form I-485 Supplement A, and

22

Form I-212, and (ii) against whom removal proceedings under INA § 240 were

23

not initiated with the filing of a Notice to Appear subsequent to the filing of the

24 ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, AMENDMENT OF THE CLASS DEFINITION, AND APPROVAL OF NOTICE TO CLASS- 3

1

Form I-485, Form I-485 Supplement A, and Form I-212 (“Subclass A

2

Members”);

3

2. Subclass B: Class Members: (i) who have remained physically present in the

4

United States since the filing of the Form I-485, Form I-485 Supplement A, and

5

Form I-212; (ii) against whom removal proceedings under INA § 240 were

6

initiated by the filing of a Notice to Appear, subsequent to the filing of the Form

7

I-485, Form I-485 Supplement A, and Form I-212; (iii) who have a final,

8

unexecuted order of removal; (iv) who have no pending direct appeals of that

9

order, including a petition for review before the Court of Appeals for the Ninth

10

Circuit; (v) whose applications to adjust status were denied based upon final

11

administrative determinations of inadmissibility by the Executive Office for

12

Immigration Review under INA § 212(a)(9)(C)(i)(II) and whose final orders of

13

removal were not entered in absentia; and (vi) for whom the Ninth Circuit Court

14

of Appeals did not apply the Montgomery Ward test as set forth in the Garfias-

15

Rodriguez decision, to determine whether Matter of Torres-Garcia, 23 I. & N.

16

Dec. 866 (BIA 2006), was properly retroactively applied to them (“Subclass B

17

Member”); and

18

3. Subclass C: Class Members (i) who have departed the United States after filing

19

the Form I-485, Form I-485 Supplement A, and Form I-212, (ii) who remain

20

physically outside the United States; and (iii) who have properly filed an

21

immigrant visa application with the United States Department of State, or who

22

will file an immigrant visa application within one year of the effective date of this

23

agreement (“Subclass C Members”).”

24 ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, AMENDMENT OF THE CLASS DEFINITION, AND APPROVAL OF NOTICE TO CLASS- 4

1 IT IS FURTHER ORDERED that the Notice of Proposed Settlement Agreement and Hearing

2 in Class Action filed as ECF No. xx-2 is APPROVED.

3 IT IS FURTHER ORDERED that the provisions for notice of the proposed settlement and

4 hearing to the class are APPROVED.

5

IT IS FURTHER ORDERED that the fairness hearing is set for July 11, 2014 at 9 a.m.

6

7

The clerk is ordered to provide copies of this order to all counsel.

8

Dated this 21stday of March, 2014.

9 10

A

Marsha J. Pechman

11

Chief United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24 ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, AMENDMENT OF THE CLASS DEFINITION, AND APPROVAL OF NOTICE TO CLASS- 5

 
 Case 2:06-cv-01411-MJP Document 104 Filed 07/21/14 Page 1 of 4

1

Honorable Marsha J. Pechman

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

Aurelio DURAN GONZALEZ, Maria C. 10 ESTRADA, Maria Luisa MARTINEZ DE

MUNGUIA, Irma PALACIOS DE 11 BANUELOS, Lucia MUNIZ DE
ANDRADE, Karina NORIS, Adriana 12 POUPARINA,

Case No. CV 06-1411-MJP

13
14 v.
15

Plaintiffs,

JOINT MOTION FOR APPROVAL OF ETTLEMENTAGREEMENTAND MENDMENT OF THE CLASS EFINITION

16 U.S. DEPARTMENT OF HOMELAND SECURITY and Janet NAPOLITANO,
17 Secretary of the Department of Homeland Security,
18 Defendants.
19

I'ltOt'89);]~ ORDER Noted for: July 11, 2014

20

This matter comes before the Court on the parties' request for fina l approval of the

21 settlement and amendment of the class definition. Following a fairness hearing on July 11,

22 2014,
PROPOSED ORDER FOR MOTION FOR APPROVAL 23 OF SETTLEMENT AGREEMENT AND AMENDMENT
OF THE CLASS DEFINITION - 1 No. C06-1411-MJP

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION 450 5th Street, N.W., LSB 6100 WASHINGTON, D.C. 20530 Tel (202) 616-9752; Fax (202) 307-8801

Case 2:06-cv-01411-MJP Document 104 Filed 07/21/14 Page 2 of 4

1 IT IS ORDERED that the Settlement Agreement and Release (ECF No. 98-1) is APPROVED.

2 IT IS FURTHER ORDERED that the Class Definition is amended as follows:

3

"Any person whq:

4

1. Is the beneficiary or derivative beneficiary of an immigrant visa petition or labor

5

certification filed on or before April 30, 2001 , provided that, if the immigrant

6

visa petition or labor certification was filed after January 14, 1998:

a.

the beneficiary was physically present in the United States on

7

December 21, 2000, or 8

b.

if a derivative beneficiary, the derivative beneficiary or the

9

primary beneficiary was physically present in the United States on 10

December 21,2000.

11 2. Is inadmissible to the United States under section 212(a)(9)(C)(i)(II) of the

12 Immigration and Nationality Act ("INA"), because he or she entered or

13 attempted to reenter the United States without being admitted after April I,

14 1997, and without permission after having previously been removed;

15 3. Properly filed a Form 1-485 (Application to Adjust Status) and Form 1-485

16

Supplement A (Adjustment of Status Under Section 245(i)) while residing

17

within the jurisdiction of the Ninth Circuit on or after August 13, 2004, and on

18

or before November 30,2007;

19

4. Filed a Fonn 1-212 (Application for Permission to Reapply for Admission Into

20

the United States After Deportation or Removal) on or after August 13, 2004,

21

and on or before November 30, 2007;

22
PROPOSED ORDER FOR MOTION FOR APPROVAL 23 OF SETTLEMENT AGREEMENT AND AMENDMENT
OF THE CLASS DEFINITION - 2 No. C06·1411-MJP

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION 450 5th Street, N.W., LSB 6100 WASHINGTON, D.C. 20530 Tel (202) 616·9752; Fax (202) 307·8801

Case 2:06-cv-01411-MJP Document 104 Filed 07/21/14 Page 3 of 4

1

5. Form 1-485, Form 1-485 Supplement A, and Fonn 1-212 were denied by U.S.

2

Citizenship and Immigration Services ("USCIS") andlor the Executive Office

3

for Immigration Review ("EOIR") on or after August 13, 2004, or have not yet

4

been adjudicated;

5

6. Is not currently subject to pending removal proceedings under INA § 240, or

before the United States Court of Appeals for the Ninth Circuit on a petition for 6

review of a removal order resulting from proceedings under INA § 240; and 7

7. Did not enter or attempt to reenter the United States without being admitted 8

after November 30, 2007. 9
Class members are further divided into three subclasses, as follows: 10
1. Subclass A: Class Members (i) who have remained physically present in the 11
United States since the filing of the Form 1-485, Form 1-485 Supplement A, and
12 Form 1-212, and (ii) against whom removal proceedings under INA § 240 were
13 not initiated with the filing of a Notice to Appear subsequent to the filing of the

14 Form 1-485, Form 1-485 Supplement A, and Form 1-212 ("Subclass A

15 Members");

16

2. Subclass B: Class Members: (i) who have remained physically present in the

17

United States since the filing of the Form 1-485, Form 1-485 Supplement A, and

18

Form 1-212; (ii) against whom removal proceedings under INA § 240 were

19

initiated by the filing of a Notice to Appear, subsequent to the filing of the FOlTIl

20

1-485, Form 1-485 Supplement A, and Form 1-212; (iii) who have a final,

21

unexecuted order of removal; (iv) who have no pending direct appeals of that

22

order, including a petition for review before the Court of Appeals for the Ninth

PROPOSED ORDER FOR MOTION FOR APPROVAL

UNITEOSTATES DEPARTMENT OF JUSTICE

23 OF SETTLEMENT AGREEMENT AND AMENDMENT OF THE CLASS DEFINITION - 3

OFFICE OF IMMIGRATION LITIGATION 450 5th Street, N.W., LSB 6100 WASHINGTON, D.C. 20530

No. C06-1411 -MJP

Tel (202) 616-9752; Fax (202) 307-8801

Case 2:06-cv-01411-MJP Document 104 Filed 07/21/14 Page 4 of 4

1

Circuit; (v) whose applications to adjust status were denied based upon final

2

administrative detenninations of inadmissibility by the Executive Office for

3

Immigration Review under INA § 212(a)(9)(C)(i)(II) and whose final orders of

4

removal were not entered in absentia; and (vi) for whom the Ninth Circuit Court

5

of Appeals did not apply the Montgomery Ward test as set forth in the Garjias-

Rodriguez decision, to detennine whether Matter of Torres-Garcia, 23 L & N. 6

Dec. 866 (BIA 2006), was properly retroactively applied to them ("Subclass B 7

Member"); and 8

3. Subclass C: Class Members (i) who have departed the United States after filing 9

the Fonn 1-485, Fonn 1-485 Supplement A, and Form 1-212, (ii) who remain
10
physically outside the United States; and (iii) who have properly filed an
11 immigrant visa application with the United States Department of State, or who
12
will file an immigrant visa application within one year of the effective date of this

13

agreement ("Subclass C Members")."

14

• sv-

Dated this),! day of July, 2014.

15

16

17

Chief United tates District Judge

18 submitted by
19

20

21

22
PROPOSED ORDER FOR MOTION FOR APPROVAL 23 OF SETTLEMENT AGREEMENT AND AMENDMENT
OF THE CLASS DEFINITION - 4 No. C06·1411·MJP

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION 450 5th Street, N.W., LSB 6100 WASHINGTON, D.C. 20530 Tel (202) 616·9752; Fa, (202) 307·8801

 
 Northwest Immigrant Rights Project
Press Release
FOR IMMEDIATE RELEASE September 28, 2006
Seattle, WA – Immigrant rights advocates filed a class action lawsuit in federal court today challenging the Department of Homeland Security’s (DHS) willful refusal to follow a binding decision of the U.S. Court of Appeals for the Ninth Circuit. See Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). DHS’ actions are depriving hundreds of people of permission to work and closing their only avenue to obtain lawful permanent resident status (a “green card.”) The plaintiffs and the class they represent also may be arrested at any time, detained, and separated from their homes and families.
The suit, filed by Northwest Immigrants Right Project, the American Immigration Law Foundation (in Washington, D.C.), and Van Der Hout, Brigagliano & Nightingale, LLP (in San Francisco), asks the court to compel DHS to follow the Ninth Circuit’s decision.
The lead plaintiff, Aurelio Duran Gonzalez, fears that he will be separated from his family, including his four-month-old child. Mr. Duran Gonzalez has been living in the Seattle, Washington area for almost five years. He is married to a lawful permanent resident and has four children, all of whom are United States citizens. If DHS continues to flout the Ninth Circuit’s decision, he will be forced to return to his home country of Mexico, indefinitely separated from his family. Mr. Duran Gonzalez explained, “I am scared of what will happen to my family if I am not allowed to stay here. My wife and I have filed all of the proper papers and fees. All I am seeking is a chance to continue providing for my wife and children.”
Matt Adams, the Legal Director for Northwest Immigrant Rights Project, expressed surprise at the actions of the DHS officers: “It is quite surprising that the Department of Homeland Security would create a policy that is directly counter to the holding of the Court of Appeals. This law suit is important not only because it seeks to protect families from being separated, but also equally important, it seeks to preserve the rule of law. The Court of Appeals made a clear ruling. DHS now refuses to abide by this ruling. Such a policy would ultimately deny justice to all of those individuals who do not have the resources to challenge DHS’s actions all the way back to the Court of Appeals. We seek an order to force DHS to comply with the law of the land.”
The case is Duran Gonzalez v. U.S. Dept. of Homeland Security, Case Number C-06-1411, and was filed in the United States District Court for the Western District of Washington.
# # #
615 Second Ave., Seattle, Washington 98104 phone: (206) 957-8611 u fax: (206) 587-4025

 
 Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 1 of 15
CLOSED,REMAND
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:06−cv−01411−MJP

Gonzalez et al v. US Department of Homeland Security et al Assigned to: Judge Marsha J. Pechman Case in other court: 07−35021
9th Circuit, 09−35174 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 09/28/2006 Date Terminated: 07/21/2014 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Aurelio Duran Gonzalez

represented by Beth Werlin AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW WASHINGTON, DC 20002 202−507−7516 Fax: 202−742−5619 Email: bwerlin@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Van Der Hout VANDERHOUT BRIGAGLIANO AND NIGHTINGALE 5TH FLOOR 180 SUTTER STREET SAN FRANCISCO, CA 94104 415−981−3000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206−957−8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine Wettstein AMERICAN IMMIGRATION LAW FOUNDATION 6TH FLOOR 918 F STREET WASHINGTON, DC 20004 202−742−5611 Email: nwettstein@ailf.org TERMINATED: 10/21/2013 LEAD ATTORNEY

Stacy Tolchin VANDERHOUT BRIGAGLIANO AND NIGHTINGALE 5TH FLOOR 180 SUTTER STREET SAN FRANCISCO, CA 94104 2136227450

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 2 of 15

Email: stacy@tolchinimmigration.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trina Realmuto National Immigration Project of the National Lawyers Guild 14 Beacon Street Suite 602 Boston, MA 02108 617−227−9727 ext 8 Email: trina@nipnlg.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Maria C Estrada

represented by Beth Werlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Van Der Hout (See above for address) LEAD ATTORNEY

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine Wettstein (See above for address) TERMINATED: 10/21/2013 LEAD ATTORNEY

Stacy Tolchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Maria Luisa Martinez De Munguia

represented by Beth Werlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Van Der Hout (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine Wettstein

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 3 of 15

(See above for address) TERMINATED: 10/21/2013 LEAD ATTORNEY

Stacy Tolchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Irma Palacios De Banuelos

represented by Beth Werlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Van Der Hout (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine Wettstein (See above for address) TERMINATED: 10/21/2013 LEAD ATTORNEY

Stacy Tolchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Lucia Muniz De Andrade

represented by Beth Werlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Van Der Hout (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine Wettstein

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 4 of 15

(See above for address) TERMINATED: 10/21/2013 LEAD ATTORNEY

Stacy Tolchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Karina Noris

represented by Beth Werlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Van Der Hout (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine Wettstein (See above for address) TERMINATED: 10/21/2013 LEAD ATTORNEY

Stacy Tolchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Adriana Pouparina

represented by Beth Werlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Van Der Hout (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine Wettstein

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 5 of 15
(See above for address) TERMINATED: 10/21/2013 LEAD ATTORNEY
Stacy Tolchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant US Department of Homeland Security
Defendant Secretary Janet Napolitano Secretary of the Department of Homeland Security

represented by Christopher Lee Pickrell US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−4088 Email: ECF−Civ.USAWAW@usdoj.gov TERMINATED: 09/19/2007 LEAD ATTORNEY
Elizabeth J Stevens US DEPARTMENT OF JUSTICE (IMMIG − 1331 PENN) CIVIL DIV−OFFICE OF IMMIGRATION 1331 PENNSYLVANIA AVE NW RM 7026−S WASHINGTON, DC 20004 202−616−9752 Email: Elizabeth.Stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Priscilla To−Yin Chan US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−7970 Email: Priscilla.Chan@usdoj.gov ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−616−0063 Email: sherease.pratt@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christopher Lee Pickrell (See above for address) TERMINATED: 09/19/2007 LEAD ATTORNEY

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 6 of 15

Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Priscilla To−Yin Chan (See above for address) ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/28/2006
09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006
09/28/2006
09/28/2006
09/28/2006

# Docket Text
1 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against defendants US Department of Homeland Security, Michael Chertoff , filed by Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos. (Summonses not issued) (Receipt # SEA 4310) (Attachments: # 1 Civil Cover Sheet)(LT, ) Modified text on 9/28/2006 (LT, ). (Entered: 09/28/2006)
2 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiffs. Noting Date 9/29/2006.Oral Argument Requested. (Attachments: # 1 Exhibits 1 − 3 # 2 Exhibits 4 − 5 # 3 Proposed Order)(LT, ) (Entered: 09/28/2006)
3 MOTION to Certify Class by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos. (LT, ) (Entered: 09/28/2006)
4 DECLARATION of Matt Adams filed by Plaintiffs re 3 MOTION to Certify Class (LT, ) (Entered: 09/28/2006)
5 DECLARATION of Trina Realmuto filed by Plaintiffs re 3 MOTION to Certify Class (LT, ) (Entered: 09/28/2006)
6 DECLARATION of Marc Van Der Hout filed by Plaintiffs re 3 MOTION to Certify Class (LT, ) (Entered: 09/28/2006)
7 DECLARATION of Stacy Tolchin filed by Plaintiffs re 3 MOTION to Certify Class (LT, ) (Entered: 09/28/2006)
8 DECLARATION of Beth Werlin filed by Plaintiffs re 3 MOTION to Certify Class (LT, ) (Entered: 09/28/2006)
9 DECLARATION of Nadine K. Wettstein filed by Plaintiffs re 3 MOTION to Certify Class (LT, ) (Entered: 09/28/2006)
10 APPLICATION by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos AND ORDER admitting Marc Van Der Hout for Plaintiffs pro hac vice. Receipt # SEA 4309. (LT, ) (Entered: 09/28/2006)
11 APPLICATION by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos AND ORDER admitting Nadine Wettstein for Plaintiffs pro hac vice. Receipt # SEA 4313. (LT, ) (Entered: 09/28/2006)
12 APPLICATION by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos AND ORDER admitting Trina Realmuto for Plaintiffs pro hac vice. Receipt # SEA 4314. (LT, ) (Entered: 09/28/2006)
13 APPLICATION by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos AND ORDER admitting Beth Werlin for

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 7 of 15

09/28/2006 09/28/2006 10/02/2006 10/03/2006 10/04/2006 10/05/2006
10/06/2006 10/10/2006
10/11/2006 10/18/2006 10/18/2006 10/27/2006
10/27/2006

Plaintiffs pro hac vice. Receipt # SEA 4312. (LT, ) (Entered: 09/28/2006)
14 APPLICATION by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos AND ORDER admitting Stacy Tolchin for Plaintiffs pro hac vice. Receipt # SEA 4311. (LT, ) (Entered: 09/28/2006)
15 MINUTE ORDER made by direction of the court, the Honorable Marsha J. Pechman: A hearing on Plaintiffs' 2 MOTION for Temporary Restraining Order and Preliminary Injunction will be set for October 4, 2006 at 2:00 p.m. Each side will be permitted 20 minutes to present their arguments. (LT, ) (Entered: 09/28/2006)
16 NOTICE of Appearance by attorney Christopher Lee Pickrell on behalf of Defendants US Department of Homeland Security, Michael Chertoff (Pickrell, Christopher) (Entered: 10/02/2006)
17 RESPONSE, by Defendants US Department of Homeland Security, Michael Chertoff, to 3 MOTION to Certify Class, 2 MOTION for Temporary Restraining Order. (Attachments: # 1 Exhibit 1)(Pickrell, Christopher) (Entered: 10/03/2006)
18 REPLY, filed by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, TO RESPONSE to 2 MOTION for Temporary Restraining Order (Adams, Matt) (Entered: 10/04/2006)
19 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Law Clerk: Andrea Ostrovsky;Pla Counsel: Matt Adams/Angelica Chazaro; Def Counsel: Elizabeth Stevens/Chris Pickrell; CR: Laurie Briggs − Vernon &Assoc.; Time of Hearing: 1 hour; TRO Hearing held on 10/4/2006. Court hears argument and grant motion for a TRO on the issue of the memorandum. Written opinion to be issued on or before 10/10/06. Preliminary Injunction Hearing is scheduled for 11/6/2006 at 04:00 PM before Hon. Marsha J. Pechman. Deft's brief due 10/18/06; Pltf's response due 10/27/06.(ES) (Entered: 10/05/2006)
20 TRANSCRIPT of Proceedings held on 10/4/06 Motion Hearing before Judge Marsha J Pechman. Court Reporter: L. Briggs. (SA) (Entered: 10/06/2006)
21 MINUTE ORDER setting noting date for 3 MOTION to Certify Class filed by Aurelio Duran Gonzalez,, Maria C Estrada,, Maria Luisa Martinez De Munguia,, Irma Palacios De Banuelos,, Lucia Muniz De Andrade,, Karina Noris,, Adriana Pouparina, Noting Date 10/27/2006. Defendants' Response due 10/18/2006. Plaintiffs' Reply due 10/27/06 by Judge Marsha J. Pechman. (AO, ) (Entered: 10/10/2006)
22 ORDER granting in part 2 Motion for TRO by Judge Marsha J. Pechman.(AO, ) (Entered: 10/11/2006)
23 RESPONSE, by Defendants US Department of Homeland Security, Michael Chertoff, to 3 MOTION to Certify Class. (Pickrell, Christopher) (Entered: 10/18/2006)
24 RESPONSE, by Defendants US Department of Homeland Security, Michael Chertoff, to 2 MOTION for Temporary Restraining Order. (Pickrell, Christopher) (Entered: 10/18/2006)
25 REPLY, filed by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, TO RESPONSE to 3 MOTION to Certify Class (Attachments: # 1 Exhibit Exhibit 1, Declaration of Mr. Ortega# 2 Exhibit Exhibit 2, Attorney Declarations# 3 Exhibit Exhibit 3, Virtue Memo)(Adams, Matt) (Entered: 10/27/2006)
26 REPLY, filed by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, TO RESPONSE to 2 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, Timeline)(Adams,

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 8 of 15

11/07/2006 11/08/2006
11/13/2006 11/22/2006 11/22/2006 11/29/2006 12/19/2006
12/19/2006 01/08/2007 01/08/2007 01/09/2007 01/10/2007
01/16/2007

Matt) (Entered: 10/27/2006)
27 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT FRCP 26f Conference Deadline is 12/5/2006.Initial Disclosure Deadline is 12/12/2006. Joint Status Report due by 12/19/2006; by Judge Marsha J. Pechman. (AO, ) Modified on 11/7/2006 − mailed copy of order to Marc Van Der Hout(MD, ). (Entered: 11/07/2006)
28 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Law Clerk: Andrea Ostrovsky; Pla Counsel: Matt Adams, et al; Def Counsel: Elizabeth Stevens, et al; CR: Joseph Roth; Time of Hearing: 45 mins.; Motion Hearing held on 11/8/2006 re 2 MOTION for Preliminary Injunction filed by Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina. (ES) (Entered: 11/08/2006)
29 ORDER granting 3 Motion to Certify Class and granting 2 Motion for Preliminary Injunction by Judge Marsha J. Pechman.(AO, ) Modified on 11/14/2006 − mailed copy of order to Marc Van Der Hout(MD, ). (Entered: 11/13/2006)
30 MOTION and Proposed Order TO CLARIFY PRELIMINARY INJUNCTION by Defendants US Department of Homeland Security, Michael Chertoff. Noting Date 12/8/2006. (Pickrell, Christopher) Modified/Added 'Proposed Order' on 11/24/2006 (ECS, ). (Entered: 11/22/2006)
32 TRANSCRIPT of Proceedings held on 11/6/06 before Judge Marsha J Pechman. Court Reporter: J Roth. (SA) (Entered: 11/30/2006)
31 ANSWER to Complaint by US Department of Homeland Security, Michael Chertoff.(Pickrell, Christopher) (Entered: 11/29/2006)
33 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 1 by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, Defendants US Department of Homeland Security, Michael Chertoff.(Adams, Matt) (Entered: 12/19/2006)
34 ORDER granting 30 Motion modify preliminary injunction by Judge Marsha J. Pechman.(AO, ) (Entered: 12/19/2006)
35 NOTICE OF APPEAL (07−35021) by Defendants US Department of Homeland Security, Michael Chertoff. Filing Fee:. (Pickrell, Christopher) Modified on 1/18/2007 to add 9th circuit case # (SA, ). (Entered: 01/08/2007)
Appeal Fees NOT received: FEE NOT REQUIRED, GOVERNMENT APPELLANT re 35 Notice of Appeal filed by Michael Chertoff, US Department of Homeland Security, (SA) (Entered: 01/09/2007)
36 APPEAL NOTIFICATION packet sent to US Court of Appeals re 35 Notice of Appeal (Attachments: # 1 Docket)(SA) (Entered: 01/09/2007)
37 MINUTE ORDER − Deadline for submission of discovery requests − January 5, 2007; Deadline for motions for orders for Phase I Discovery − January 22, 2007; Phase I − Deadline for production and completion of Phase I Discovery − February 16, 2007; Phase II−Deadline to inform of further discovery requests − March 9, 2007; Deadline for submission of motions for orders for Phase II discovery− March 19, 2007; Phase II − Deadline for production and completion of Phase II discovery − April 9, 2007; Dispositive motions due date − May 10, 2007; If cross summary judgment motions are to be filed, they are directed to contact the court for page limitations and number of briefs to be filed by Judge Marsha J. Pechman. (MD, ) Modified on 1/10/2007 − mailed copy of order to Attorney Marc Van Der Hout(MD, ). (Entered: 01/10/2007)
39 TIME SCHEDULE ORDER as to 35 Notice of Appeal filed by Michael Chertoff,, US Department of Homeland Security, : Appellant/petitoiner shall immediately file the civil appeals docketing statement. (SA, ) (Entered: 01/18/2007)

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 9 of 15

01/16/2007 01/18/2007 01/24/2007
09/19/2007 12/28/2007 05/05/2008 05/05/2008 01/21/2009
01/21/2009
01/21/2009
01/22/2009 01/22/2009 01/23/2009 01/23/2009

USCA Case Number 07−35021 for 35 Notice of Appeal filed by Michael Chertoff,, US Department of Homeland Security,. (SA, ) (Entered: 01/18/2007)
38 STIPULATION AND PROPOSED ORDER TO STAY DISCOVERY by parties. (Pickrell, Christopher) (Entered: 01/18/2007)
40 STIPULATION AND ORDER TO STAY DISCOVERY/ORDER Cancelling Deadline until after the Government's interlocutory appeal has been resolved or terminated by the Ninth Circuit Court of Appeals. Suspend all deadlines in the Court's 1−10−07 minute order and confirm that the existing Class Certification Order and Modified/Amended Preliminary Injunction shall remain in effect during the Government's appeal and Direct the parties to file a joint status report with this court within six months of this order or within 10 days after the appeal's disposition by the Ninth Circuit, whichever comes first by Judge Marsha J. Pechman. (MD, ) (Entered: 01/25/2007)
41 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Defendants US Department of Homeland Security, Michael Chertoff. Priscilla To−Yin Chan is substituted as counsel for Defendants. Attorney Christopher Lee Pickrell terminated. (Chan, Priscilla) (Entered: 09/19/2007)
42 JOINT STATUS REPORT signed by all parties;. (Stevens, Elizabeth) (Entered: 12/28/2007)
43 MINUTE ORDER requesting joint status report regarding status of Defendants' appeal to Ninth Circuit by Judge Marsha J. Pechman. (ADO) (Entered: 05/05/2008)
44 JOINT STATUS REPORT signed by all parties;. (Stevens, Elizabeth) (Entered: 05/05/2008)
45 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT against defendant(s) all defendants, filed by Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos. (Attachments: # 1 Exhibit First Amended Complaint, # 2 Proposed Order Granting Motion for Leave to File Amended Complaint)(Tolchin, Stacy) Modified on 2/27/2009 (MD). (Entered: 01/21/2009)
46 MOTION to Amend 29 Order on Motion to Certify Class,by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos. (Attachments: # 1 Proposed Order Amend and Redefine Class) Noting Date 2/20/2009, (Tolchin, Stacy) (Entered: 01/21/2009)
47 Amended MOTION for Temporary Restraining Order by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos. Oral Argument Requested. (Attachments: # 1 Proposed Order Granting TRO and setting date for Hearing on PI) Noting Date 1/23/2009, (Tolchin, Stacy) (Entered: 01/21/2009)
48 MINUTE ORDER setting oral argument on Plaintiffs' first amended motion for provisional class certification, temporary restraining order, and preliminary injunction. Oral argument will be held at 4:00 p.m. on January 23, 2009. by Judge Marsha J. Pechman. (RK) (Entered: 01/22/2009)
Set Hearing: TRO Hearing set for 1/23/2009 at 04:00 PM in Courtroom 14206 before Judge Marsha J. Pechman. (RM) (Entered: 01/22/2009)
49 RESPONSE, by Defendants US Department of Homeland Security, Janet Napolitano, to 47 Amended MOTION for Temporary Restraining Order. (Attachments: # 1 Proposed Order)(Pratt, Sherease) (Entered: 01/23/2009)
50 NOTICE of Appearance by attorney Sherease Rosalyn Pratt on behalf of Defendants US Department of Homeland Security, Janet Napolitano. (Pratt, Sherease) (Entered: 01/23/2009)

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 10 of 15

01/23/2009 01/23/2009 01/23/2009 01/23/2009
01/23/2009 01/29/2009 01/29/2009 02/03/2009
02/06/2009 02/17/2009 02/17/2009 02/20/2009

51 EXHIBIT A−1 re 49 Response to Motion by Defendants US Department of Homeland Security, Janet Napolitano. (Pratt, Sherease) (Entered: 01/23/2009)
52 REPLY, filed by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, TO RESPONSE to 47 Amended MOTION for Temporary Restraining Order (Tolchin, Stacy) (Entered: 01/23/2009)
53 ORDER granting in part 47 Motion for TRO. Plaintiffs' motion for TRO is granted. The Court reserves judgment on Plaintiffs' motion to amend class certification and preliminary injunction. by Judge Marsha J. Pechman.(RK) (Entered: 01/23/2009)
54 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman− Dep Clerk: Rhonda Miller; Pla Counsel: Matt Adams; Def Counsel: Elizabeth Stevens; CR: Barry Fanning; Motion Hearing held telephonically in chambers on 1/23/2009 47 Amended MOTION for Temporary Restraining Order filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos. For the reasons stated orally on the record, the Court grants in part Plaintiff's Motion for a temporary restraining order and will set a preliminary injunction hearing. See Docket #53 Order memorializing ruling. (RM) (Entered: 01/26/2009)
55 MANDATE of USCA (07−35021) as to 35 Notice of Appeal filed by US Department of Homeland Security, Janet Napolitano; VACATED AND REMANDED. (Attachments: # 1 Memorandum)(LMK) (Entered: 01/26/2009)
56 MINUTE ORDER Setting Hearing: Preliminary Injunction Telephonic Hearing set for 2/4/2009 at 10:00 AM before Judge Marsha J. Pechman. Each side will have 20 minutes for argument, including rebuttal. Authorized by Judge Marsha J. Pechman. (RM) (Entered: 01/29/2009)
57 MINUTE ORDER Rescheduling Hearing: Preliminary Injunction Telephonic Hearing is rescheduled for 2/3/2009 at 02:00 PM before Judge Marsha J. Pechman. Each side will have 20 minutes for argument, including rebuttal. Authorized by Judge Marsha J. Pechman(RM) (Entered: 01/29/2009)
58 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman− Dep Clerk: Rhonda Miller; Pla Counsel: Matt Adams; Def Counsel: Elizabeth Stevens; CR: Kari McGrath; Time of Hearing: 2:00 p.m.; Motion Hearing held on 2/3/2009 re 47 Amended MOTION for Temporary Restraining Order filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos. The Court will issue an order on Plaintiffs' motion for a preliminary injunction when the current temporary restraining order expires (02/06/09). (RK) (Entered: 02/03/2009)
59 Order DENYING IN PART Plaintiffs' motion (Dkt. No. 47) provisional class certification and preliminary injunction. The Court DENIES Plaintiff's request for a preliminary injunction, but reserves the issue of class modification.by Judge Marsha J. Pechman. (RK) (Entered: 02/06/2009)
60 RESPONSE, by Defendants US Department of Homeland Security, Janet Napolitano, to 46 MOTION to Amend 29 Order on Motion to Certify Class, MOTION to Amend 29 Order on Motion to Certify Class,. (Attachments: # 1 Proposed Order)(Pratt, Sherease) (Entered: 02/17/2009)
61 Defendants' Opposition to Plaintiffs' Motion for Leave to File First Amended Complaint BRIEF re 45 Amended Complaint, by Defendants US Department of Homeland Security, Janet Napolitano. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Pratt, Sherease) (Entered: 02/17/2009)
62 REPLY, filed by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, TO RESPONSE to 46 MOTION to Amend 29 Order on Motion to Certify Class, MOTION to Amend 29 Order on Motion to Certify Class, (Adams, Matt) (Entered: 02/20/2009)

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 11 of 15

02/20/2009 02/27/2009 02/27/2009
03/05/2009 03/05/2009
03/05/2009 03/05/2009 03/06/2009 03/09/2009
03/11/2009 03/20/2009

63 REPLY by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos to 61 Brief, 45 Amended Complaint,. (Adams, Matt) (Entered: 02/20/2009)
64 ORDER denying 45 Motion for leave to file an amended complaint and denying 46 Motion to amend class certification. There are no remaining legal or factual disputes and the Court will enter Judgment in favor of Defendants by Judge Marsha J. Pechman.(RK) (Entered: 02/27/2009)
65 JUDGMENT BY COURT − IT IS ORDERED AND ADJUDGED: The Court has previously denied Plaintiff's motion for injunctive relief. The Court denies Plaintiff's motion for leave to file an amended complaint and denies Plaintiffs' motion for class modification. Because the parties agree that there are no factual or legal issues remaining before the Court, Judgment is entered in favor of Defendants. (MD) (Entered: 03/02/2009)
66 Civil Appeals Docketing Statement by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, to be transmitted by Clerk to Circuit Court of Appeals. (Attachments: # 1 Order on judgment)(Adams, Matt) (Entered: 03/05/2009)
67 NOTICE OF APPEAL (09−35174) as to 65 Judgment by Court, 64 Order on Motion for Leave to File,, Order on Motion to Amend, by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos. Filing Fee $455, Receipt number 09810000000001689786. (Attachments: # 1 Order of Judgment)(Adams, Matt) Modified on 3/11/2009 (SA). (Entered: 03/05/2009)
68 REPRESENTATION STATEMENT, by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos, (re: 67 Notice of Appeal,.) (Adams, Matt) (Entered: 03/05/2009)
69 TRANSCRIPT REQUEST by Plaintiffs Lucia Muniz De Andrade, Karina Noris, Adriana Pouparina, Aurelio Duran Gonzalez, Maria C Estrada, Maria Luisa Martinez De Munguia, Irma Palacios De Banuelos Requesting Attorney: Matt Adams. (Adams, Matt) (Entered: 03/05/2009)
70 APPEAL NOTIFICATION packet sent to US Court of Appeals re 67 Notice of Appeal, (Attachments: # 1 Docket)(LMK) (Entered: 03/06/2009)
71 TIME SCHEDULE ORDER as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos : Appellant shall notify Appellee regarding transcripts by 3/16/09; Appellee to notify Appellant regarding any additional transcripts by 3/25/09; Transcript designation due by 4/6/09; Transcript by court reporter due by 5/4/09; Appellants opening brief due by 6/22/09; Appellees response brief due by 7/20/09; Appellants optional reply brief due within 14 days of service of the response brief. (SA) (Entered: 03/11/2009)
USCA Case Number 09−35174 for 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos. (SA) (Entered: 03/11/2009)
72 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 1/23/2009 before Judge Marsha J. Pechman.

Parties have ten (10) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 12 of 15

03/24/2009
02/18/2010 09/14/2010 10/25/2011 11/20/2012 03/29/2013 05/14/2013

Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript contact court reporter Barry Fanning by telephone at 206−370−8507.
. Release of Transcript Restriction set for 6/18/2009, (LMK) (Entered: 03/20/2009)
73 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Via Telephone held on 2/3/2009 before Judge Marsha J. Pechman.
Parties have ten (10) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript contact court reporter Kari McGrath by telephone at 206−370−8509.
Release of Transcript Restriction set for 6/22/2009, (SA) (Entered: 03/24/2009)
74 ORDER of USCA (09−35174) as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos The panel will retain jurisdiction of this appeal. (SA) (Entered: 02/18/2010)
75 ORDER of USCA (09−35174) as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos Briefs are to be filed within 21 days of this order. SEE ORDER FOR FURTHER INSTRUCTION.(SA) (Entered: 09/14/2010)
76 OPINION of USCA (NOT THE MANDATE 09−35174) as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos. AFFIRMED. (SA) (Entered: 10/25/2011)
77 ORDER of USCA (09−35174) as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos The parties shall submit simultaneous letter briefs on or before December10, 2012, advising of the effect on this case of the Ninth Circuits October 19,2012 en banc opinion in Garfias−Rodriguez, No. 09−72603, 2012 WL 5077137. The briefs shall not exceed ten pages in length. Parties who are registered forElectronic Case Filing must file the briefs electronically. (SA) (Entered: 11/20/2012)
78 OPINION of USCA (09−35174−NOT THE MANDATE) as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos;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. VACATED; REMANDED Judge: BGS Authoring, Judge: CMC Dissenting. FILED AND ENTERED JUDGMENT. (LMK) (Entered: 03/29/2013)
79 ORDER of USCA (09−35174) as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos Defendants−Appellees Unopposed Motion to Enlarge Time for Filing En Banc

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 13 of 15

06/12/2013
07/23/2013
07/31/2013 08/28/2013 09/10/2013 10/01/2013 10/01/2013 10/08/2013 10/21/2013 11/22/2013 12/03/2013

Rehearing Petition is GRANTED. Petition for rehearing is due on or beforeJune 12, 2013. (SA) (Entered: 05/14/2013)
80 ORDER of USCA (09−35174) as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos; Defendant−Appellees Unopposed Second Motion to Enlarge Time for Filing En Banc Rehearing Petition is GRANTED. The petition is now due on or before Friday, July 12, 2013. (LMK) (Entered: 06/12/2013)
81 MANDATE of USCA (09−35174) as to 67 Notice of Appeal, filed by Adriana Pouparina, Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Karina Noris, Lucia Muniz De Andrade, Irma Palacios De Banuelos;The judgment 78 of this Court, entered March 29, 2013, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. VACATED;REMANDED (LMK) (Entered: 07/23/2013)
82 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 9/11/2013, FRCP 26f Conference Deadline is 8/28/2013, Initial Disclosure Deadline is 9/4/2013, by Judge Marsha J. Pechman. (RM) Copy mailed to Marc Van Der Hout (Entered: 07/31/2013)
83 Stipulated MOTION to Hold Case In Abeyance by Defendants Janet Napolitano, US Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 8/28/2013, (Stevens, Elizabeth) (Entered: 08/28/2013)
84 ORDER granting 83 Stipulated Motion to extend the joint status report. All other FRCP 26−related dates are adjusted accordingly. Joint Status Report due by 10/11/2013, by Judge Marsha J. Pechman.(MD) (Entered: 09/10/2013)
85 Unopposed MOTION to Stay re 84 Order on Stipulated Motion, Set Deadlines, 82 Joint Status Report Order Form for District Judges, for Stay of the Entire Case in Light of Lapse of Appropriations by Defendants Janet Napolitano, US Department of Homeland Security. Noting Date 10/3/2013, (Stevens, Elizabeth) (Entered: 10/01/2013)
86 PROPOSED ORDER (Unsigned) re 85 Unopposed MOTION to Stay re 84 Order on Stipulated Motion, Set Deadlines, 82 Joint Status Report Order Form for District Judges, for Stay of the Entire Case in Light of Lapse of Appropriations . (Stevens, Elizabeth) (Entered: 10/01/2013)
87 ORDER denying 85 Defendants' Motion to Stay. Joint Status Report due by 11/22/2013 and all other FRCP 26 related dates are adjusted accordingly, by Judge Marsha J. Pechman.(MD) (Entered: 10/08/2013)
88 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Nadine Wettstein for Plaintiffs Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Lucia Muniz De Andrade, Karina Noris, Irma Palacios De Banuelos, Adriana Pouparina. (Werlin, Beth) (Entered: 10/21/2013)
89 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. Filed by Defendants Janet Napolitano, US Department of Homeland Security.(Stevens, Elizabeth) (Entered: 11/22/2013)
90 ORDER SETTING TRIAL DATE AND RELATED DATES; Bench Trial is set for 11/17/2014 at 09:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Joinder of Parties due by 12/31/2013, Amended Pleadings due by 1/10/2014, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 4/21/2014, Motions due by 5/21/2014, Discovery completed by 6/20/2014, Dispositive motions due by 7/21/2014, Motions in Limine due by 10/14/2014, Pretrial Order is dispensed with except as to witness and exhibit list due by 11/5/2014, Trial briefs to be submitted by 11/5/2014, Proposed Findings of Fact and Conclusions of Law to be submitted by 11/5/2014, Pretrial Conference set for 11/7/2014 at 02:30 PM before Judge Marsha J. Pechman. Copy sent to Marc Van Der Hout. (RM) (Entered: 12/03/2013)

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 14 of 15

12/12/2013
12/20/2013 12/31/2013 01/02/2014 01/03/2014 01/16/2014
03/14/2014 03/14/2014
03/21/2014 03/21/2014 06/18/2014 07/08/2014

91 ORDER SETTING TRIAL DATE AND RELATED DATES; Jury Trial is set for 11/17/2014 at 09:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Joinder of Parties due by 12/31/2013, Motion for leave to file amended complaint due by 1/3/2014, Motion to amend class certification 1/3/2014, Opposition and motion to decertify the class due by 1/17/2014, Opposition to the motion to decertify the class and any reply due 1/31/2014, Any reply by Defendant due by 2/7/2014, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 4/21/2014, Motions due by 5/21/2014, Discovery completed by 6/20/2014, Dispositive motions due by 7/21/2014, Motions in Limine due by 10/14/2014, Pretrial Order due by 11/5/2014, Trial briefs to be submitted by 11/5/2014, Proposed voir dire/jury instructions due by 11/5/2014. Pretrial Conference set for 11/7/2014 at 02:30 PM before Judge Marsha J. Pechman. Copy mailed to Marc Van Der Hout (RM) (Entered: 12/12/2013)
92 Stipulated MOTION and Proposed Orderfor Mediation by Plaintiffs Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Lucia Muniz De Andrade, Karina Noris, Irma Palacios De Banuelos, Adriana Pouparina. Noting Date 12/20/2013, (Adams, Matt) Modified on 12/23/2013 (MD). (Entered: 12/20/2013)
93 ORDER ON MOTION by Judge Marsha J. Pechman; The Court DENIES the parties' 92 Stipulated Motion to refer case to mediation. (TF) (Entered: 12/31/2013)
94 Second Stipulated MOTION by Plaintiffs Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Lucia Muniz De Andrade, Karina Noris, Irma Palacios De Banuelos, Adriana Pouparina. (Attachments: # 1 Proposed Order) Noting Date 1/2/2014, (Adams, Matt) (Entered: 01/02/2014)
95 ORDER granting 94 Stipulated Motion to extend Initial Case Schedule Deadlines by Judge Marsha J. Pechman.(MD) (Entered: 01/03/2014)
96 ORDER OF DISMISSAL: Counsel having notified the Court of settlement of this case, and it appearing that no issue remains for the Court's determination, IT IS ORDERED that this action and all claims asserted herein are DISMISSED with prejudice and without costs to any party. In the event that settlement is not perfected, any party may move to reopen the case within 60 days of the date of this order. Any trial date and pretrial dates previously set are hereby VACATED. Signed by Judge Marsha J. Pechman. (RM) (Entered: 01/16/2014)
97 Joint MOTION to Reopen Case by Plaintiffs Maria C Estrada, Aurelio Duran Gonzalez, Maria Luisa Martinez De Munguia, Lucia Muniz De Andrade, Karina Noris, Irma Palacios De Banuelos, Adriana Pouparina. (Attachments: # 1 Proposed Order) Noting Date 3/14/2014, (Adams, Matt) (Entered: 03/14/2014)
98 Joint MOTION Preliminary Approval of Settlement Agreement, Amendment of the Class Definition, and Approval of Notice to Class re 97 Joint MOTION to Reopen Case by Defendants Janet Napolitano, US Department of Homeland Security. (Attachments: # 1 Exhibit A settlement agreement, # 2 Exhibit B Notice of Proposed Settlement Agreement and Hearing in a Class Action, # 3 Exhibit A, attachment B, Proposed final Judgement, # 4 Exhibit A, attachment C, Noticeof Final Settlement, # 5 Exhibit A, Attachment D, JMTR Cover Sheet, # 6 Exhibit A, attachment E, JMTR Template, # 7 Proposed Order) Noting Date 3/14/2014, (Stevens, Elizabeth) (Entered: 03/14/2014)
99 ORDER granting 97 Stipulated Motion to Reopen Case. Case reopened, by Judge Marsha J. Pechman.(MD) (Entered: 03/21/2014)
100 ORDER granting 98 Motion for Preliminary Approval of Settlement Agreement, Amendment of the Class definition and approval of notice to class. Fairness In−court Hearing set for 7/11/2014 at 09:00 AM before Judge Marsha J. Pechman, by Judge Marsha J. Pechman.(MD) (Entered: 03/21/2014)
101 STATEMENT of Jorge Gabriel Patino re 100 Order on setting a Fairness Hearing(MD) (Entered: 06/19/2014)
102 RESPONSE by Defendants Janet Napolitano, US Department of Homeland Security re 101 Statement, 100 Order on Motion for Miscellaneous Relief, Set/Reset Hearings,, (Joint Response). (Attachments: # 1 Exhibit A)(Stevens,

Case: 2:06-cv-1411 As of: 08/04/2014 06:05 AM PDT 15 of 15

07/11/2014 07/21/2014 07/30/2014

Elizabeth) (Entered: 07/08/2014)
103 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman− Dep Clerk: Rhonda Miller; Pla Counsel: Matt Adams; Def Counsel: Elizabeth Stevens; CR: Nancy Bauer; Fairness Hearing held on 7/11/2014. No one present to offer objections. Court approves settlement agreement. Court will enter order and final judgment. Parties to file proposed final judgment. (RM) (Entered: 07/13/2014)
104 ORDER ON FINAL APPROVEMENT OF THE SETTLEMENT AGREEMENT and amendment of the class definition by Judge Marsha J. Pechman. (RM) Modified on 7/22/2014 (RM) Copy mailed to Marc Van Der Hout. (Entered: 07/22/2014)
105 JUDGMENT BY COURT − THE COURT HAS ORDERED THAT the final class action settlement is approved, and has directed the parties to ensure compliance with the Courts final approval order. (MD) (Entered: 07/30/2014)

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 AURELIO DURAN GONZALES; MARIA
C. ESTRADA; MARIA LUISA MARTINEZ DE MUNGUIA; IRMA PALACIOS DE BANUELOS; LUCIA MUNIZ DE ANDRADE; KARINA NORIS; ADRIANA POUPARINA,
 Plaintiffs-Appellees, v.
DEPARTMENT OF HOMELAND SECURITY; MICHAEL CHERTOFF, Secretary of the Department of Homeland Security,
 Defendants-Appellants.

No. 07-35021
D.C. No. CV-06-01411-MJP
OPINION

Appeal from the United States District Court for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted August 6, 2007—Seattle, Washington
Filed November 30, 2007
Before: William C. Canby, Jr., Cynthia Holcomb Hall, and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan

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COUNSEL
Peter D. Keisler (on the briefs); Thomas H. Dupree, Jr. (on the briefs and argued); David Kline (on the briefs); Papu Sandhu (on the briefs), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the defendant-appellants.

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Matt Adams (on the briefs and argued), Northwest Immigrant Rights Project, Seattle, Washington; Trina Realmuto & Beth Werlin (on the briefs), American Immigration Law Foundation, Washington, DC; Marc Van Der Hout & Stacy Tolshin, Van Der Hout, Brigagliano & Nightingale, San Francisco, California, for the plaintiffs-appellees.

OPINION
CALLAHAN, Circuit Judge:
On December 19, 2006, the District Court for the Western District of Washington entered an order granting preliminary injunctive relief to a class of aliens, enjoining defendants Department of Homeland Security and Secretary Michael Chertoff (collectively “DHS”) from denying certain applications for permission to reapply for admission into the United States, or from acting on any denied applications. We vacate the order and remand because we defer to the decision by the Board of Immigration Appeals (BIA) in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), which is dispositive of plaintiffs’ request for injunctive relief.
I
In 1994, Congress amended the Immigration and Nationality Act (INA), providing for adjustment of status for certain aliens otherwise ineligible for such relief because of their unlawful status in the United States. Pub. L. No. 103-317, Title V § 506(b), 108 Stat. 1724, 1765-66 (1994) (the special adjustment provision). The special adjustment provision excepted these aliens from certain admissibility requirements for adjustment of status. See 8 U.S.C. § 1255(a). It allowed the Attorney General to adjust the status of an alien who had entered the United States without inspection to that of a legal permanent resident provided that the alien (1) was admissible

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to the United States and the beneficiary of an immediately available immigrant visa, and (2) paid an application fee five times the usual fee. Pub. L. No. 103-317, § 506(b), 108 Stat. 1724, 1766 (1994). The 1994 law was effective for three years, from October 1, 1994, until October 1, 1997. Id.

In 1998, Congress extended the availability of the special adjustment provision to aliens who were the beneficiaries of an alien relative petition filed on or before January 14, 1998. Pub. L. No. 105-119, § 111, 11 Stat. 2440 (1997). Finally, in 2000 Congress revived the special adjustment provision to include beneficiaries of an alien relative petition filed on or before April 30, 2001. LIFE Act Amendment of 2000, Pub. L. No. 106-554, § 1502(a), 114 Stat. 2763 (2000). The 2000 provision required that the beneficiary of an alien relative petition filed after January 14, 1998, be physically present in the United States on December 20, 2000. Id. The special adjustment provision is codified at 8 U.S.C. § 1255(i).

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), effecting large scale changes to the INA. Pub. L. No. 104-208, div. C, 110 Stat. 3009 (1996). In addition to the special adjustment provision, two IIRIRA provisions pertaining to aliens who reenter the United States after being previously removed or deported are relevant here—8 U.S.C. §§ 1231(a)(5) (the reinstatement provision), and 1182(a)(9)(C)(i)(II) (the inadmissibility provision for previously removed aliens unlawfully present in the United States).1

Section 1231(a)(5) provides for automatic reinstatement of an alien’s prior removal or deportation order when an alien has reentered the United States illegally. It also states that “the alien is not eligible and may not apply for any relief ”

1IIRIRA also eliminated deportation and exclusion proceedings, merging them into the broader category of removal proceedings. See MariscalSandoval v. Ashcroft , 370 F.3d 851, 854 n.6 (9th Cir. 2004).

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from removal. Section 1182(a)(9)(C)(i)(II) deems permanently inadmissible a previously removed alien who reenters the United States unlawfully. An alien inadmissible under this section, however, may seek admission into the United States if: (1) he has been absent from the United States more than ten years, and (2) he has received the consent of the Secretary of Homeland Security to the application for readmission. 8 U.S.C. § 1182(a)(9)(C)(ii). Agency regulations provide that permission to reapply is sought by the filing of an I-212 Form. 8 C.F.R. § 212.2. A successful applicant receives an “I-212 waiver.”

In August 2004, we held that a previously removed alien unlawfully present in the United States was eligible to adjust his status under the special adjustment provision provided that he filed an I-212 waiver application prior to the initiation of reinstatement proceedings, notwithstanding the bar to relief from removal contained in IIRIRA’s reinstatement provision and inadmissibility provision for previously removed aliens unlawfully present in the United States. Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). Relying on this authority, plaintiffs commenced the present action in the district court.

II

The named plaintiffs in this case are seven Mexican citizens who have previously been deported or removed from the United States and have reentered without permission or detection. Each has applied for an I-212 waiver in conjunction with an application for adjustment of status under the special adjustment provision. The I-212 waiver application is pending in four of the cases and has been denied, along with the adjustment of status applications, in the remaining three cases.

On September 28, 2006, the named plaintiffs filed a complaint against DHS for injunctive and declaratory relief, a motion for a temporary restraining order and preliminary

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injunction, and a motion for class certification. The complaint alleged that a class of persons “have been denied the opportunity to apply for lawful permanent resident (LPR) status as a result of Defendants’ refusal to comply with the precedent decision of the Ninth Circuit in Perez-Gonzalez v. Ashcroft[.]” Plaintiffs demonstrated DHS’s non-compliance by submitting a March 31, 2006, Interoffice Memorandum from the United States Citizenship and Immigration Service’s (USCIS) Acting Associate Director for Operations and Acting Chief Counsel, entitled “Effects of Perez-Gonzalez v. Ashcroft on adjudication of Form I-212 applications filed by aliens who are subject to reinstated removal orders under INA § 241(a)(5)” (Interoffice Memorandum). The Interoffice Memorandum instructs USCIS officers to adjudicate I-212 waiver applications before instituting reinstatement proceedings in the Ninth Circuit only when the alien meets § 1182(a)(9)(C)(ii)’s provision requiring the lapse of ten years since the date of the alien’s last departure from the United States.

On November 13, 2006, the district court issued an order granting the motions for injunctive relief and class certification, and on December 19, 2006, it issued an order amending the injunction.2 The district court held that the Interoffice Memorandum conflicted with Perez-Gonzalez because PerezGonzalez “did not read the exception to the [INA] § 212(a)(9)(C) ban as limiting the waiver available under 8 C.F.R. § 212.2” to those who had remained outside the United States for more than ten years. It pointed out that Mr. PerezGonzalez himself “was inadmissible under INA § 212(a)(9)(C) and had not remained outside the country for more than ten years since his last departure. ” It granted the injunction because plaintiffs were likely to succeed on their claim, and the harm faced by plaintiffs—the loss of eligibility to apply for adjustment of status, including work authoriza-

2DHS does not appeal the district court’s class certification. Thirty-one class members are known, but plaintiffs believe the class to consist of several hundred members.

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tion, and potential reinstatement of removal orders— outweighed the government’s administrative burden and its interest in deterring aliens from repeatedly entering the United States illegally.

The amended injunction enjoins DHS from “applying or enforcing the policy enumerated in Part 3(A) of the PerezGonzales [sic] Memo against any member of the class for the remainder of this action. ” It prevents DHS from “deny[ing] any class member’s I-212 applications in the Ninth Circuit on the grounds that the applicant is inadmissible under INA § 212(a)(9)(C)(i)(II) and ten years have not elapsed since the applicant’s last departure from the United States, ” (emphasis omitted) and from:

giv[ing] any legal effect to any denied I-212 applications of class members if: (a) the applicant’s I-212 application was adjudicated in a USCIS District Office located with the Ninth Circuit, (b) the application was denied between August 13, 2004 (the date Perez-Gonzales [sic] was filed) and the date of this Order, and (c) the application was denied on the grounds that the applicant was inadmissible under INA § 212(a)(9)(C)(i)(II) and ten years had not elapsed since the applicant’s last departure from the United States.

DHS timely appeals. The district court stayed discovery and ordered that the injunction remain in effect pending appeal.

III

We first review the district court’s jurisdiction. We then examine whether the law supporting the district court’s decision remains in effect in light of two post- Perez-Gonzalez decisions, Fernandez-Vargas v. Gonzales , 126 S. Ct. 2422

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(2006), and In re Torres-Garcia , 23 I. & N. Dec. 866 (BIA 2006).

A. Standard of Review

The existence of subject matter jurisdiction is a question of law reviewed de novo. Coyle v. P.T. Garuda Indonesia , 363 F.3d 979, 984 n.7 (9th Cir. 2004). We also review de novo whether exhaustion is required in an immigration case. Chang v. United States, 327 F.3d 911, 919 (9th Cir. 2003).

We review the scope of injunctive relief for an abuse of discretion. Idaho Watersheds Project v. Hahn , 307 F.3d 815, 823 (9th Cir. 2002). Review is de novo when the district court’s ruling rests solely on a premise of law and the facts are either established or undisputed. Harris v. Board of Supervisors, 366 F.3d 754, 760 (9th Cir. 2004).

B. Subject Matter Jurisdiction

[1] Before reaching the merits of this appeal, we must address the government’s contention that the district court lacked jurisdiction to enter the injunction. Title 8 U.S.C. § 1252(f)(1) precludes jurisdiction over actions “to enjoin or restrain the operation of the provisions of part IV ” of subchapter II of the INA, except as to “an individual alien against whom proceedings under such part have been initiated. ” Part IV, captioned “Inspection, Apprehension, Examination, Exclusion, and Removal, ” contains the reinstatement provision. Adjustment of status, however, falls under part V of subchapter II, and inadmissibility provisions are contained in part II.

DHS contends that § 1252(f)(1) barred the district court from issuing this injunction because the injunction prevents the department from giving “legal effect” to any denied I-212 application. DHS reasons that the “legal effect” of such a denial is the commencement of reinstatement proceedings

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under § 1231(a)(5) and, by requiring aliens to bring individual proceedings to challenge provisions under part IV, § 1252(f) was intended to preclude courts from granting class-wide relief to enjoin the operation of the reinstatement provision. DHS cites to the legislative history behind § 1252(f), explaining that “a single district court or court of appeals does not have authority to enjoin procedures established by Congress to reform the process of removing illegal aliens from the United States.” House Judiciary Committee Report No. 104469(I) at 161.

Plaintiffs respond that the district court’s order enjoins the unlawful application of § 1255(i)—the special adjustment provision—which falls under part V of subchapter II of the INA. They argue that application of the reinstatement provision is not a direct consequence of the denial of an I-212 waiver or an adjustment of status application, but rather it is one of several available recourses following the denial of an adjustment of status application.

[2] In support of their argument, plaintiffs cite to Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en banc). There, we held that § 1252(f)(1)’s limitation on injunctive relief did not apply to a district court order enjoining the Immigration and Naturalization Service enforcing an unlawful advance parole policy that prevented an alien from adjusting his status under a 1986 amnesty provision. Id. at 1149-50. 3 The law required that the alien reside in the United States continuously for a certain time period and provided that a “brief casual and innocent absence ” from the country would not disrupt this continuity requirement. Id. at 1142. The INS required an alien to obtain advance parole, i.e., advanced permission to reenter the United States, for any departure to be

3On March 1, 2003, the Immigration and Naturalization Service ceased to exist and its functions were transferred to the newly established Department of Homeland Security. See Homeland Security Act of 2002, 6 U.S.C. §§ 101, 111, 251, 252.

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deemed “brief, casual and innocent.” Id. As part of that classaction injunction, the district court enjoined the government from executing final orders of removal in cases where the aliens’ adjustment of status applications had been rejected because of the unlawful advance parole policy. Id. at 1145. We held that § 1252(f)(1) was inapplicable because the injunction was issued under a statutory provision governing adjustment of status, which is located in part V of subchapter II of the INA. Id. at 1150.

[3] We conclude that Catholic Social Services is controlling. There, like this case, the district court enjoined the unlawful application of statutory provisions regarding adjustment of status. In both cases, removal was a collateral effect of the unlawful practice of denying adjustment of status. Section 1252(f)(1) does not prohibit the current injunction because, as in the Catholic Social Services injunction, it directly implicates the adjustment of status provision which falls under part V of subchapter II, notwithstanding that a reinstatement proceeding may be a collateral consequence of an unsuccessful adjustment application. Accordingly, the district court did not err by concluding that the injunction’s effect on reinstatement proceedings “is one step removed from the relief sought by Plaintiffs and therefore does not bring this action within the INA § 242(f) bar.”

[4] DHS also contends that the district court erred as a prudential matter by not requiring plaintiffs to exhaust administrative remedies.4 Prudential exhaustion was not required. Prudential exhaustion comes into play where “(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of

4Under Darby v. Cisneros , 509 U.S. 137, 154 (1993), administrative exhaustion is required as a prerequisite to judicial review only “when expressly required by statute or . . . agency rule[.] ” Because no statute or rule mandates administrative review of the denial of adjustment of status, statutory exhaustion was not required in this case.

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the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review. ” El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review , 959 F.2d 742, 747 (9th Cir. 1992) (internal quotations omitted). Here the agency has spoken clearly through the policy statement contained in the Interoffice Memorandum and its application of this policy in a number of cases. Moreover, the case presents a question of law that would not be aided by further development of the record.

C. Fernandez-Vargas v. Ashcroft does not undermine Perez-Gonzalez

Pursuant to Galbraith v. County of Santa Clara , 307 F.3d 1119, 1123 (9th Cir. 2002), we can overrule our existing precedent without en banc proceedings when intervening Supreme Court authority undermines our precedent, “and both cases are closely on point. ” DHS argues that the Supreme Court’s Fernandez-Vargas decision undermines, and thus overrules, the threshold Perez-Gonzalez holding—that a successful I-212 waiver would act to prevent the reinstatement provision’s bar to relief from removal.

In Fernandez-Vargas, the Supreme Court addressed whether IIRIRA’s reinstatement provision applied to aliens who reentered the United States unlawfully prior to IIRIRA’s effective date, April 1, 1997. 126 S. Ct. at 2425. FernandezVargas, like plaintiffs in the case at bar, reentered the United States unlawfully after being previously deported. 5 Several

5In contrast to the plaintiffs at bar, however, Fernandez-Vargas was not deemed inadmissible under § 1182(a)(9)(C)(i)(II) but instead under § 1182(a)(9)(A)(i) (provision for previously removed arriving alien), presumably because he reentered the United States prior to IIRIRA’s effective date. See Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 883-884 (10th Cir. 2005); INS Provides Interim Guidance On New Grounds Of Inadmissibility, 74 No. 25 Interpreter Releases 1033, 1035 (July 7, 1997).

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years later he filed an application to adjust his status to lawful permanent resident through his United States citizen wife. The application prompted the INS, in 2003, to reinstate his prior deportation order, thus preventing him from adjusting his status. Id. at 2427.

[5] Prior to the passage of IIRIRA, Fernandez-Vargas was eligible to apply for adjustment of status under the special adjustment provision. Id. He argued that the former law governed his case because his illegal reentry occurred prior to IIRIRA’s effective date. Id. at 2428. He also contended that applying the new reinstatement provision to him would have an impermissibly retroactive effect. Id. The Supreme Court rejected both arguments. First, it held that the new reinstatement provision, on its face, reached aliens who reentered the United States pre-IIRIRA. Id. at 2428-30. It then held that the reinstatement provision had no retroactivity effect because it does not penalize an alien for his illegal reentry but rather “establishes a process to remove him ” based on his “remaining in the country after [re]entry. ” Id. at 2432. Thus, “the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country.” Id.

DHS argues that had the Supreme Court agreed with PerezGonzalez, it would have required the agency to adjudicate Fernandez-Vargas’s adjustment of status application. Thus, DHS contends that by implication Fernandez-Vargas undermines Perez-Gonzalez and requires us to disregard our holding that a successful I-212 waiver would avoid application of the reinstatement provision.

[6] DHS’s argument fails because the Supreme Court in Fernandez-Vargas did not address the issues raised in PerezGonzalez. We have held that issues that are not raised or discussed are “unstated assumptions on non-litigated issues [and] are not precedential holdings binding further decisions. ” Sakamoto v. Duty Free Shoppers, Ltd. , 764 F.2d 1285, 1288

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(9th Cir. 1985). The Supreme Court’s holdings (1) that the reinstatement provision reaches aliens regardless of when they illegally reentered the United States, and (2) that the provision has no impermissible retroactive effect on aliens who reentered the United States prior to IIRIRA’s effective date, do not address the holding in Perez-Gonzalez that a successful I-212 waiver, if filed prior to the initiation of reinstatement proceedings, can circumvent application of the reinstatement statute.6 Accordingly, the district court did not err by concluding that Fernandez-Vargas does not undermine PerezGonzalez.

D. National Cable & Telecommunications Ass’n v. Brand X Internet Services requires that we review PerezGonzalez in light of the BIA’s opinion in In re TorresGarcia

DHS also contends that the BIA’s opinion in In re TorresGarcia undermines the Perez-Gonzalez holdings pertaining to an illegal reentrant’s admissibility and submits that the district court erred by failing to defer to In re Torres-Garcia . The question, then, is whether, under National Cable & Telecommunications Ass’n v. Brand X Internet Services , 545 U.S. 967 (2005) (Brand X), we must now defer to In re Torres-Garcia. If we determine that we are bound by In re Torres-Garcia , then the district court, in turn, will be bound by our decision.

In Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Supreme Court established a two-step inquiry for judicial review of an agency’s construction of a statute. First, the reviewing court must determine whether the statute is unambiguous: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as

6The Supreme Court had no reason to direct the agency to adjudicate Mr. Fernandez-Vargas’s adjustment of status application because the issues presented to the Supreme Court were resolved by an affirmance of the Tenth Circuit’s judgment.

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the agency, must give effect to the unambiguously expressed intent of Congress. ” Id. at 842-43. The Court explained that “[i]f a court, employing traditional tools of statutory construction, ascertains that Congress has an intention on the precise question at issue, that intention is the law and must be given effect.” Id. at 843 n.9. However, if the court determines that the statute is “silent or ambiguous, ” it then proceeds to the second Chevron step. Id. at 843. It does not impose its own construction of the statute, but rather it decides “whether the agency’s answer is based on a permissible construction of the statute.” Id.

[7] Brand X dealt with an agency’s statutory interpretation that conflicted with a circuit court’s earlier interpretation of a statute. The Supreme Court held that the circuit court must apply Chevron deference to an agency’s interpretation of a statute regardless of the circuit court’s contrary precedent, provided that the court’s earlier precedent was an interpretation of a statutory ambiguity. Brand X, 545 U.S. at 980-82. The Court explained:

A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. . . . Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.

Id. at 982-83.

[8] Accordingly, Brand X requires us to review our prior opinion in Perez-Gonzalez in light of the BIA’s subsequent decision in In re Torres-Garcia . If we conclude that PerezGonzalez was based, at least in part, on ambiguity in the

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applicable statutes, then pursuant to Chevron and Brand X we
must give deference to the agency’s resolution of these ambiguities in In re Torres-Garcia .7

E. Our holding in Perez-Gonzalez v. Ashcroft

In Perez-Gonzalez, we first addressed whether the reinstatement provision categorically barred a previously removed alien who unlawfully reentered the United States from obtaining adjustment of status under the special adjustment provision. We distinguished Padilla v. Ashcroft, 334 F.3d 921, 925 (9th Cir. 2003)—where we held that an alien who had unlawfully reentered the United States was barred by the reinstatement provision from adjusting his status under the special adjustment provision—on the grounds that Padilla had applied only for adjustment of status prior to the initiation of reinstatement proceedings, while Perez-Gonzalez had applied for adjustment of status and an I-212 waiver of inadmissibility before the initiation of his reinstatement proceedings. 379 F.3d at 788.

[9] Perez-Gonzalez held that a successful I-212 waiver “would offer a means of avoiding the reinstatement provision’s bar.” Id. at 788. We reasoned that by applying for the I-212 waiver before the initiation of reinstatement proceedings, Perez-Gonzalez was not yet subject to the reinstatement provision and therefore not barred from seeking adjustment of

7Although a three-judge panel is usually bound by the opinion of a prior three-judge panel, we have recognized an exception where “the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, ” such that the prior three-judge panel’s decision has been “effectively overruled.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). This is such a situation. The Supreme Court’s opinions in Chevron and Brand X together hold that to the extent that Perez-Gonzalez was grounded in the ambiguous language of the statute, the BIA’s reasonable discretionary construction of the statute in In re Torres-Garcia has “effectively overruled” contrary holdings in Perez-Gonzalez.

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status through the special adjustment provision. Id. We explained that “[h]ad the INS exercised its discretion [over Perez-Gonzalez’s I-212 waiver request] in Perez-Gonzalez’s favor, he would no longer be subject to the reinstatement provision as he would no longer be considered an illegal entrant.” Id.8

We next held that the INS’s denial of Perez-Gonzalez’s I212 application based on his failure to apply for the waiver from outside the United States was legal error because it was contrary to the agency’s regulations, which provide (1) for the filing of an I-212 Form by an applicant for adjustment of status “with the district director having jurisdiction over the place where the alien resides, ” and (2) for the approved I-212 Form, filed in conjunction with an application for adjustment of status, to “be retroactive to the date on which the alien embarked or reembarked at a place outside the United States.” Id. at 789 (citing 8 C.F.R. §§ 212.2(e), (g)(2), (i)(2)). 9

8While DHS argued that this holding was undermined by FernandezVargas, it acknowledged at oral argument that In re Torres-Garcia does not reach this issue.
9Subsection 212.2(e) reads:
Applicant for adjustment of status. An applicant for adjustment of status under section 245 of the Act and part 245 of this chapter must request permission to reapply for entry in conjunction with his or her application for adjustment of status. This request is made by filing an application for permission to reapply, Form I212, with the district director having jurisdiction over the place where the alien resides. If the application under section 245 of the Act has been initiated, renewed, or is pending in a proceeding before an immigration judge, the district director must refer the Form I-212 to the immigration judge for adjudication.
Subsection (g)(2) reads:
If the applicant is physically present in the United States but is ineligible to apply for adjustment of status, he or she must file the application with the district director having jurisdiction over his or her place of residence.

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We then determined that this legal error prejudiced PerezGonzalez because he was otherwise legally eligible for adjustment of status, and we accordingly remanded to the BIA for a determination of whether he was entitled to the I-212 waiver as a matter of discretion. Id. at 790-96. Importantly, we held that the I-212 waiver cured Mr. Perez-Gonzalez’s inadmissibility under § 1182(a)(9)(C)(i)(II). Id. at 793-95. We relied on the text of the special adjustment provision allowing aliens who “entered the United States without inspection ” to apply for adjustment of status, noting that nothing in that statute— passed in 1994 and extended in 1997 and 2000—nor in the discussion of the statute’s purpose, limited the adjustment of status provision to aliens not subject to the reinstatement provision. Id. at 793. We also relied on 8 C.F.R. §§ 212.2(e) and (i)(2), concluding that these regulations “expressly permit applicants for adjustment of status who have been previously removed or deported to apply for permission to reapply from within this country. ” Id. We noted further that 8 C.F.R. § 245.1(c), which sets forth classes of aliens ineligible for adjustment of status, does not include previously deported or removed aliens. Id.

F. Perez-Gonzalez was based on a finding of statutory ambiguity

We conclude that, despite some language to the contrary, Perez-Gonzalez was based on a finding of statutory ambiguity that left room for agency discretion. Chevron deference is mentioned twice in Perez-Gonzalez. As part of the standard of review discussion, we wrote that Chevron deference was

Subsection (i)(2) reads:
If the alien filed Form I-212 in conjunction with an application for adjustment of status under section 245 of the Act, the approval of Form I-212 shall be retroactive to the date on which the alien embarked or reembarked at a place outside the United States.

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not applicable to our decision because the “normal principles of statutory construction suffice. ” Perez-Gonzalez, 379 F.3d at 786. Later in the opinion, when rejecting an agency guidance memorandum stating that aliens inadmissible under subsection (a)(9)(C) are disqualified from seeking adjustment of status, Perez-Gonzalez explained that the guidance memorandum was entitled to only “some deference,” under Christensen v. Harris County , 529 U.S. 576, 587 (2000), as opposed to “[r]egulations . . . [that] are a form of agency interpretation that is due Chevron deference.” 379 F.3d at 793. When rejecting the guidance memorandum as inconsistent with the special adjustment provision and its implementing regulation 8 C.F.R. § 212.2, we commented that “[i]n the absence of a more complete agency elaboration of how its interpretation of [INA] § 212(a)(9) can be reconciled with its own regulations, we must defer to the regulations rather than to the informal guidance memorandum.” Id. at 794 (citing Christensen, 529 U.S. at 587).

DHS argues that by the above statement, we did not rely on an unambiguous interpretation of the statute’s inadmissibility provision. It urges that the reference to Chevron in the standard of review section is generalized and not supported by the text of the opinion in the specific context of the opinion’s interpretation of Section 1182(a)(9)(C). In contrast, plaintiffs contend that Brand X does not apply because we decided Perez-Gonzalez under the first step of Chevron—by relying on the statutory terms of the special adjustment provision, buttressed by the agency’s regulations.

Although Perez-Gonzalez relied on the special adjustment provision to hold that inadmissibility under subsection (a)(9)(C) was not a bar to adjustment of status, we clearly relied on the agency regulations to reconcile the inadmissibility provision with the special adjustment provision. Id. at 973. We could not rely on the plain language of the inadmissibility provision to reach our holding because subsection (a)(9)(C)(ii) provides for a waiver of this permanent inadmis-

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sibility only by remaining outside the United States for ten years. Instead, we expressly deferred to the regulations, reasoning that (1) they were consistent with the special adjustment provision (not the inadmissibility provision), and (2) they would make no sense if read in conjunction with the guidance memorandum. Id. at 794.

[10] Thus, notwithstanding Perez-Gonzalez’s disclaimer of Chevron deference, careful review of the opinion shows that it is premised on the existence of ambiguity in the interplay between the inadmissibility and adjustment of status provisions. Accordingly, our decision did not “follow[ ] from the unambiguous terms of the statute and thus leave[ ] no room for agency discretion.” Brand X, 545 U.S. at 982. We did not “foreclose[ ] the agency’s interpretation ” of the statutory scheme, id. at 983, but rather relied on the regulations to both reject an informal agency interpretation of the inadmissibility provision and reach our holding. Perez-Gonzalez, 379 F.3d at 794. Indeed, we noted that we were deferring to the regulations “[i]n the absence of a more complete agency elaboration of how its interpretation of [INA] § 212(a)(9) can be reconciled with its own regulations. ” Id. at 794.

[11] The issue in Perez-Gonzalez might have been resolved under the first step of Chevron by examining the text of the relevant statutes and their legislative histories. Indeed, this was the BIA’s approach in In re Torres-Garcia, as well as the approach taken by the Tenth Circuit in Berrum-Garcia. See infra note 12. This approach was also adopted by a member of the Perez-Gonzalez panel who dissented from the denial of Mr. Perez-Gonzalez’s petition for panel rehearing.10 However,

10Judge Gould wrote that he would follow Berrum-Garcia “because there is no necessary conflict” between the reinstatement provision and the special adjustment provision. Perez-Gonzalez v. Gonzales, 403 F.3d 1116, 1117 (9th Cir. 2005) (order dissenting from the denial of panel rehearing).
A straightforward application of these two provisions, which can rationally be read together without conflict, leads to the conclu-

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by declining to adhere to the plain language of the inadmissibility provision and instead falling back on the regulations, Perez-Gonzalez did not find the inadmissibility provision, nor the statutory scheme, to be unambiguous. Accordingly, we are not bound by Perez-Gonzalez and must defer to In re TorresGarcia if its interpretation of the governing statute is reasonable.

G. The BIA decision in In re Torres-Garcia interprets the applicable statutes

In In re Torres-Garcia, a case arising out of Dallas, Texas, the BIA addressed whether § 1182(a)(9)(C)(i)(II) barred a Mexican citizen who was unlawfully present in the United States after having been removed from adjusting his status under the special adjustment provision. 23 I. & N. Dec. at 869. Torres-Garcia received an I-212 waiver while in Mexico, granting his request for permission to reapply for admission. Id. at 867. Instead of reapplying for admission, however, Torres-Garcia reentered the United States without being admitted or paroled. Id. Subsequently, he filed an application for adjustment of status under the special adjustment provision which was denied because he was unlawfully present in the United States. Id. He was placed in removal proceedings where he renewed his adjustment of status application. Id. The immigration judge pretermitted his renewed application

sion that Perez-Gonzalez cannot qualify for adjustment of status under the plain language of § 245(i) because he is inadmissible under § 212(a)(9)(C). That Perez-Gonzalez applied for an I-212 waiver does not save him from § 212(a)(9)(C)’s bar to admissibility because he did not comply with § 212(a)(9)(C)(ii), which requires that such application be filed from outside the United States before reentry.
Id. at 1117-18. Judge Gould explained that the majority “erroneously treats 8 C.F.R. § 212.2 as an independent authority for I-212 waivers, separate from INA § 212 itself . . . when 8 C.F.R. § 212.2 is an agency regulation that implements INA § 212.” Id. at 1118.

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because Mr. Torres-Garcia’s unlawful reentry into the United States rendered him inadmissible under § 1182(a)(9)(C)(i)(II). Id. Torres-Garcia argued that he was not inadmissible under subsection (a)(9)(C)(i)(II) because, like Perez-Gonzalez, he had applied for his I-212 waiver before the commencement of removal proceedings. Id. at 873. He maintained further that DHS’s approval of the waiver insulated him against any allegation of inadmissibility arising from his subsequent unlawful reentry. Id. at 870.

The BIA rejected these arguments, explaining first that the I-212 waiver was limited to Torres-Garcia’s inadmissibility under 8 U.S.C. § 1182(a)(9)(A)(ii), pertaining to aliens who had been removed after illegally entering or attempting to enter the United States. 11 Id. at 871-72. In other words, the I212 waiver allowed him to apply for readmission without waiting the ten or twenty years otherwise required by subsection (a)(9)(A)(ii). The BIA explained that by reentering the United States without permission, Torres-Garcia became permanently inadmissible under subsection (a)(9)(C)(i)(II). Id. at 871. He was ineligible to seek an I-212 waiver at that point because he did not qualify for relief from permanent inadmissibility under subsection (a)(9)(C)(ii), which requires an alien to remain outside of the United States for ten years before requesting permission to reapply for admission. Id. at 873. Therefore, Torres-Garcia’s successful waiver under subsection (a)(9)(A)(iii), obtained from outside the United States

11Subsection 1182(a)(9)(A)(i) deems an alien removed upon arrival inadmissible for five years. Subsection (a)(a)(9)(A)(ii) deems an alien who entered the United States and was removed inadmissible for ten years, or twenty years if the alien has been removed more than once or is an aggravated felon. Subsection (9)(A)(iii) provides for a waiver of inadmissibility for aliens falling under either subsection (a)(9)(A)(i) or (a)(9)(A)(ii) if, from outside of the United States, the alien receives the Attorney General’s consent to reapply for admission. Unlike subsection (a)(9)(c)(ii), Subsection (a)(9)(A)(iii) does not place a time restriction on the ability to request permission to reapply for admission. We note that the procedures in subsection (a)(9)(A) are not the subject of this appeal.

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before he reentered the country, had no effect on his subsequent inadmissibility under subsection (a)(9)(C)(i)(II)—as a previously removed alien unlawfully present in the United States. Id.

The BIA also rejected Perez-Gonzalez as support for Torres-Garcia’s position:

[W]e believe the Ninth Circuit’s analysis regarding the availability of a retroactive waiver of the ground of inadmissibility set forth at [INA] section 212(a)(9)(C)(i) contradicts the language and purpose of the Act and appears to have proceeded from an understandable, but ultimately incorrect, assumption regarding the applicability of 8 C.F.R. § 212.2.

Id. at 873. The BIA explained that the regulation was promul-
gated to implement changes to the INA made in 1990 and did not reflect the statutory changes made to the INA in IIRIRA. 12
It reasoned:

12The 1990 amendments to the INA created a new § 1182(a)(6), which provided that a previously removed alien “who seeks admission within 5 years of the date of such deportation or removal (or within 20 years in the case of an alien convicted of an aggravated felony) is excludable, unless before the date of the alien’s embarkment or reembarkment at a place outside the United States . . . the Attorney General has consented to the alien’s applying or reapplying for admission. ” Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990).

In 1996 IIRIRA amended § 1182(a)(6) to its present form. It now reads:

“An alien present in the United States without being admitted or paroled,

or who arrived in the United States at any time or place other than as des-

ignated by the Attorney General, is inadmissible.

” 8 U.S.C.

§ 1182(a)(6)(A)(i). No waiver of inadmissibility is provided under subsec-

tion (a)(6)(A). However, IIRIRA also created new subsection 1182(a)(9),

classifying as inadmissible three types of previously removed aliens: (A)

Certain aliens previously removed; (B) Aliens unlawfully present; and (C)

Aliens unlawfully present after previous immigration violations, with cor-

responding waivers. See supra note 10, (detailing the terms of inadmissi-

bility under subsection (a)(9)(A)).

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[W]hile 8 C.F.R. §§ 212.2(e) and (i)(2) authorize aliens who are unlawfully present in the United States to seek permission to reapply for admission retroactively in conjunction with an application for an adjustment of status, the very concept of retroactive permission to reapply for admission, i.e., permission requested after unlawful reentry, contradicts the clear language of section 212(a)(9)(C), which in its own right makes unlawful reentry after removal a ground of inadmissibility that can only be waived after the passage of 10 years.

Id. at 874-75 (citing Berrum-Garcia v. Comfort , 390 F.3d 1158, 1167 (10th Cir. 2004)). 13

13Berrum-Garcia addressed the identical issue presented in PerezGonzalez—whether an alien subject to inadmissibility under subsection (9)(C)(i)(II) as an illegal reentrant was barred from adjusting his status under the special adjustment provision by the commencement of reinstatement proceedings, even though he had filed his I-212 waiver request and adjustment application prior to the initiation of reinstatement proceedings. 390 F.3d at 1162-63. The Tenth Circuit explained that the timing of the alien’s application for adjustment of status was immaterial based on the plain language of the reinstatement provision and that a waiver under subsection (9)(C)(ii) can be obtained only after exiting the country and waiting ten years. Id. at 1163.
Berrum-Garcia also rejected Perez-Gonzalez’s reasoning that § 212.2(e) allows applicants for adjustment of status who have been previously removed or deported to apply for an I-212 waiver within the United States. Id. at 1167. The Tenth Circuit viewed this regulation as ambiguous, in that it “only implies that some aliens illegally present in the United States may apply for an I-212 waiver without leaving the country; it does not explicitly extend that privilege to aliens who have illegally reentered the country after a prior deportation or removal. ” Id. (emphasis omitted).
Berrum-Garcia also found § 212.2(i)(2) to be ambiguous. Id. While the regulation refers to “the date on which the alien embarked or reembarked,” the court noted that the provision could apply to subsection (a)(9)(B)(i)(I), which provides for a waiver to an unlawfully present alien who had previously been in the United States for less than one year and voluntarily departed without being subject to formal removal proceedings. Id.

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[12] The BIA concluded that 8 C.F.R. § 212.2 could not

reasonably be construed as implementing subsection

(a)(9)(C)(ii)’s waiver provision and could not be reconciled

with the plain language of subsection (a)(9)(C)(ii). 23 I. & N.

Dec. at 875. It disagreed with the reasoning in

Perez-

Gonzalez that the statutory ten-year limitation “would not

cover the class of aliens under 8 C.F.R. § 212.2, who have

been previously removed and are currently in this country

prior to seeking permission to reapply. ” Id. at 876 (quoting

Perez-Gonzalez, 379 F.3d at 794 n.10). The BIA considered

the more reasonable interpretation of the statutory framework

to be that an alien may not obtain a waiver under subsection

(a)(9)(C)(ii), retroactively or prospectively, without regard to

the ten-year bar. Id. It explained:

Perez-Gonzalez allows an alien to obtain a section 212(a)(9)(C)(ii) waiver nunc pro tunc even though such a waiver would have been unavailable to him had he sought it prospectively, thereby placing him in a better position by asking forgiveness than he would have been in had he asked permission. Such an interpretation contradicts the clear language of section 212(a)(9)(C)(ii) and the legislative policy underlying section 212(a)(9)(C) generally.

Id.

The Tenth Circuit resolved the regulatory ambiguities by examining the text of the inadmissibility provisions (a)(9)(B) and (C), and the LIFE Act Amendments of 2000. Id. at 1167-68. The court relied on the LIFE Act Amendments’ express exemption of Nicaraguans, Cuban, and Haitian immigrants from inadmissibility under subsection (a)(9)(A) and subsection (a)(9)(C), and the reinstatement provision, making them eligible to adjust their status despite being present in the United States after having been previously removed. Id. at 1168. The Tenth Circuit recognized that, by expressly exempting these aliens from the reinstatement provision, Congress understood that subsection (a)(9)(C) posed an obstacle to previously removed aliens seeking amnesty under the special adjustment provision. Id.

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H. Because the BIA’s statutory interpretation in In re Torres-Garcia is reasonable, it is entitled to Chevron deference under Brand X

The question, then, is whether we must defer to this ruling as a reasonable interpretation of the statutes. Plaintiffs urge that Chevron deference is owed only to the agency’s regulation and not to the BIA’s decision which they contend is contrary to the regulation. They also rely on The Fitzgerald Living Trust v. United States , 460 F.3d 1259, 1264 (9th Cir. 2006) (explaining that Brand X “requires that deference be given to an agency’s interpretation of a statute unless a prior court’s decision has held that the statute is incompatible with the agency’s interpretation”), to argue that Brand X does not apply because our interpretation in Perez-Gonzalez is incompatible with the agency’s interpretation.

The relevant inquiry is not whether we are required to defer to the agency’s regulation but whether we must now—post In re Torres-Garcia—defer to that decision as a valid agency interpretation of the statute. The Supreme Court has accorded Chevron deference to BIA decisions, and we have followed suit. See INS v. Aguirre-Aguirre , 526 U.S. 415, 424-25 (1999); Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1009 (9th Cir. 2006) (en banc). Plaintiffs’ argument—that the regulation should be accorded Chevron deference but the administrative decision interpreting that regulation in the context of the relevant statutory scheme should not be accorded deference— accordingly fails.

Moreover, plaintiffs are wrong when they assert that our statutory interpretation in Perez-Gonzalez was “incompatible with the agency’s interpretation. ” Indeed, we relied on the agency’s interpretation—i.e., its regulation—to support our interpretation of the statutes in that case. Furthermore, the reliance on the agency regulation in Perez-Gonzalez does not prevent deference to In re Torres-Garcia today. Brand X explained that Chevron deference applies even when “an

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agency interpretation [ ] was a recent reversal of agency policy,” 545 U.S. at 982, because “the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency. ” Id. at 981 (internal quotation marks and citations omitted). Therefore, under Chevron and Brand X we are required to defer to In re Torres-Garcia ’s interpretation of the statutory scheme, regardless of whether the agency once adhered to a different interpretation.

[13] In In re Torres-Garcia, the BIA held that an applicant who is inadmissible under subsection (a)(9)(C)(i)(II) is also ineligible to adjust his status under the special adjustment provision from within the United States. The alien is bound by subsection (a)(9)(C)(ii), requiring that he obtain permission to apply for readmission from outside the United States after ten years have lapsed from the date of his last departure. The BIA’s decision is clearly reasonable and is therefore entitled to Chevron deference under Brand X.

IV

The district court correctly determined that it has jurisdic-
tion over this case and that Fernandez-Vargas does not under-
mine the holding in Perez-Gonzalez that a successful I-212 waiver would avoid the reinstatement provision. 14

[14] However, we vacate the district court’s order because we hold today that we are bound by the BIA’s interpretation of the applicable statutes in In re Torres-Garcia, even though that interpretation differs from our prior interpretation in Perez-Gonzalez. Pursuant to In re Torres-Garcia, plaintiffs as a matter of law are not eligible to adjust their status because

14We view the denial of an alien’s I-212 waiver before commencing reinstatement proceedings as a ministerial act and an inadequate ground to sustain the preliminary injunction. Should the BIA hold in the future that a successful I-212 waiver would not avoid the reinstatement provision, a Brand X analysis of that holding would then be appropriate.

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they are ineligible to receive I-212 waivers. Accordingly, the plaintiffs have no likelihood of success on the merits of their suit, and the preliminary injunction is vacated. See First Brands Corp. v. Fred Meyer, Inc. , 809 F.2d 1378, 1385 (9th Cir. 1987) (holding that a showing of likelihood of success is essential for a preliminary injunction). The case is remanded for further proceedings consistent with this opinion.

VACATED AND REMANDED.