FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID CORREO-RUIZ and MIGUEL

CORREO-RUIZ,

Petitioners,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 12-72126

Agency Nos.

A096-152-845

A096-152-846

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 5, 2015—Portland, Oregon

Filed December 30, 2015

Before: Alex Kozinski, Marsha S. Berzon,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Watford
2 CORREO-RUIZ V. LYNCH

SUMMARY*

Immigration

The panel granted David and Miguel Correo-Ruiz’s

petition for review of the Board of Immigration Appeals’

decision finding the brothers ineligible for adjustment of

status because they were inadmissible pursuant to 8 U.S.C.

§ 1182(a)(9)(C) under a retroactive application of Matter of

Briones, 24 I. & N. Dec. 355 (BIA 2007).

The panel applied the balancing test adopted in

Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012)

(en banc), to determine whether Briones could be

retroactively imposed upon the brothers’ applications for

adjustment, filed when Acosta v. Gonzales, 439 F.3d 550 (9th

Cir. 2006), which Garfias-Rodriguez overruled, would have

applied. The panel held that the brothers could establish a

legitimate reliance interest on pre-Briones law by showing

they incurred legal expenses pursuing adjustment during the

21-month period between Acosta and Briones. Because the

record did not reflect expenses the brothers incurred during

the period, the panel remanded to the BIA with instructions

to allow them to supplement the record and to assess in the

first instance under Garfias-Rodriguez whether Briones may

be applied retroactively.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CORREO-RUIZ V. LYNCH 3

COUNSEL

Stephen W. Manning (argued), Jennifer M. Rotman, Jessica

M. Boell, Immigrant Law Group PC, Portland, Oregon, for

Petitioners.

Anh-Thu P. Mai-Windle (argued), Senior Litigation Counsel;

Stuart F. Delery, Acting Assistant Attorney General; Stephen

J. Flynn, Assistant Director, Office of Immigration Litigation,

United States Department of Justice, Civil Division,

Washington, D.C., for Respondent.

OPINION

WATFORD, Circuit Judge:

Petitioners David Correo-Ruiz and Miguel Correo-Ruiz

are citizens of Mexico who entered the United States

unlawfully in 1995. In 2002, they applied for adjustment of

status under a provision of the immigration laws permitting

certain non-citizens to become lawful permanent residents. 

See 8 U.S.C. § 1255(i). In 2007, while petitioners’

applications were pending, the Board of Immigration Appeals

(BIA) held that individuals in petitioners’ shoes are

categorically ineligible for relief under § 1255(i). In re

Briones, 24 I. & N. Dec. 355 (BIA 2007). In GarfiasRodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc),

we upheld the BIA’s interpretation of the law and adopted a

five-factor test for determining whether Briones may be

applied retroactively in a given case. We are asked to decide

whether Briones may be applied retroactively to the

petitioners in this case.
4 CORREO-RUIZ V. LYNCH

I

Congress enacted 8 U.S.C. § 1255(i) in 1994. Pub. L. No.

103–317, § 506(b), 108 Stat. 1724, 1765–66. The statute, as

amended, allows non-citizens who entered the United States

unlawfully to apply for adjustment of status to that of a lawful

permanent resident if certain conditions are met. One of

those conditions is that an applicant must be “admissible to

the United States for permanent residence.” § 1255(i)(2)(A).

In 1996, Congress passed the Illegal Immigration Reform

and Immigrant ResponsibilityAct of 1996, known as IIRIRA. 

Pub. L. No. 104–208, Div. C, 110 Stat. 3009–546. Of

particular relevance here, IIRIRA renders “inadmissible” any

non-citizen who, after being unlawfully present in the United

States for more than one year, reenters the United States

without being lawfully admitted. § 1182(a)(9)(C)(i)(I). (For

ease of reference, we will refer to this provision as

§ 1182(a)(9)(C).) Neither the text of IIRIRA nor its

legislative history explains whether an individual who is

inadmissible under this provision remains eligible for relief

under § 1255(i).

We confronted the tension between §§ 1255(i) and

1182(a)(9)(C) in Acosta v. Gonzales, 439 F.3d 550 (9th Cir.

2006), overruled by Garfias-Rodriguez, 702 F.3d at 513–14. 

We held that non-citizens who are inadmissible under

§ 1182(a)(9)(C) nonetheless remain eligible for relief under

§ 1255(i). Id. at 553–56. We issued that decision in February

2006. Twenty-one months later, however, the BIA disagreed

with our interpretation of the law. The BIA held in Briones

that anyone who is inadmissible under § 1182(a)(9)(C) is

ineligible for relief under § 1255(i). 24 I. & N. Dec. at

370–71.
CORREO-RUIZ V. LYNCH 5

For several years after the BIA’s decision in Briones,

things stood in limbo in our circuit, as it was unclear whether

our decision in Acosta or the BIA’s decision in Briones

controlled. In 2012, we resolved that issue in GarfiasRodriguez, where we held that the BIA’s interpretation of

§ 1255(i) is binding under National Cable &

Telecommunications Association v. Brand X Internet

Services, 545 U.S. 967 (2005). We accordingly overruled

Acosta and adopted Briones as the law of the circuit. 

702 F.3d at 513–14. Under current law, anyone rendered

inadmissible under § 1182(a)(9)(C) is categoricallyprecluded

from obtaining adjustment of status under § 1255(i).

II

The Correo brothers unlawfully entered the United States

from Mexico in 1995. After living in the United States for

more than one year, both left the United States and returned

a short time later without being lawfully admitted. As a

result, they are inadmissible under § 1182(a)(9)(C).

In 2002, the Correo brothers applied for adjustment of

status under § 1255(i). The United States Citizenship and

Immigration Services (USCIS) held the brothers’ applications

in abeyance for several years, given the legal uncertainty over

whether individuals rendered inadmissible under

§ 1182(a)(9)(C) remained eligible for relief under § 1255(i). 

By the time USCIS acted on the brothers’ applications in

2009, however, the BIA had decided Briones. USCIS denied

their applications and initiated removal proceedings against

them.

At the ensuing hearing before an immigration judge (IJ),

the Correo brothers renewed their applications for adjustment
6 CORREO-RUIZ V. LYNCH

of status under § 1255(i), notwithstanding the BIA’s

unfavorable law. The IJ held that under Briones the brothers

were ineligible for relief and ordered them removed to

Mexico if they did not voluntarily depart. The BIA upheld

the IJ’s decision.

III

The Correo brothers concede that if we apply the law as

it currentlystands—i.e., the rule established in Briones—they

lose. They are inadmissible under § 1182(a)(9)(C), and

Brionessquarely holds that such individuals are ineligible for

relief under § 1255(i). The brothers argue, however, that

Briones should not be applied retroactively to them.

In Garfias-Rodriguez, we applied a five-factor balancing

test to determine when Briones may be applied retroactively

to petitioners who applied for § 1255(i) relief before Briones

was decided. That test requires us to consider:

(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.
CORREO-RUIZ V. LYNCH 7

702 F.3d at 518 (quoting Montgomery Ward & Co. v. FTC,

691 F.2d 1322, 1333 (9th Cir. 1982)). Because the test turns

in part on the extent to which a petitioner relied on the law as

it stood before Briones, we held that the balancing analysis

must be conducted on a case-by-case basis in cases

concerning the retroactivity of Briones. Id. at 519.

What we said in Garfias-Rodriguez about the first, fourth,

and fifth factors applies with equal force in this case. We

concluded that the first factor was neutral—it did not favor

either the government or the petitioner. The fourth factor

strongly favored the petitioner, since retroactive application

of Briones would result in his almost certain removal from

the United States. The fifth factor leaned somewhat in the

government’s favor in light of the government’s interest in

uniform application of the immigration laws. Id. at 521–23. 

All of that is true in this case as well.

The second and third factors are the decisive ones in this

context, and they are “closely intertwined.” Id. at 521. “If a

new rule represents an abrupt departure from well established

practice, a party’s reliance on the prior rule is likely to be

reasonable, whereas if the rule merely attempts to fill a void

in an unsettled area of law, reliance is less likely to be

reasonable.” Id. (internal quotation marks omitted).

In Garfias-Rodriguez, the petitioner asserted two separate

reliance interests, neither of which we found legitimate. The

petitioner argued that he had reasonablyrelied on pre-Briones

law (1) in deciding to apply for relief under § 1255(i), which

had the effect of alerting the government to his unlawful

presence in the United States; and (2) in deciding to pay the

$1,000 filing fee. We held that the only pre-Briones law that

could have triggered any legitimate reliance interest was
8 CORREO-RUIZ V. LYNCH

Acosta. Since the petitioner had filed his § 1255(i)

application in 2002, four years before Acosta was decided, he

obviously could not have relied on that case in deciding to

take either of the actions he identified. Id. at 522.

However, we suggested in Garfias-Rodriguez that the

petitioner might have been able to show a legitimate reliance

interest had he incurred expenses pursuing his § 1255(i)

application during the 21-month period between Acosta and

Briones. The petitioner’s counsel asserted at oral argument

that his client had indeed incurred such expenses, but nothing

in the record supported the claim, and counsel did not request

a remand to supplement the record. As a result, we held that

the second and third factors weighed against the petitioner,

which meant the government’s interest in applying Briones

retroactively prevailed. Id. at 521–23.

Like the petitioner in Garfias-Rodriguez, the Correo

brothers filed their applications for § 1255(i) relief in 2002,

so they could not have relied on Acosta in deciding to pay the

$1,000 filing fee. But they contend that they relied on Acosta

in two other respects that give rise to legitimate reliance

interests.

First, they assert that they relied on Acosta by deciding to

remain in the United States unlawfully so that they could

continue pursuing their pending § 1255(i) applications. Had

they returned to Mexico in 2006, they point out, they would

by now have satisfied almost all of the 10-year period for a

waiver of the inadmissibility bar, see 8 U.S.C.

§ 1182(a)(9)(C)(ii), which in turn would have allowed them

to file new applications for § 1255(i) relief unimpeded by

Briones. We do not think that qualifies as a legitimate

reliance interest. The change in law occasioned by Briones
CORREO-RUIZ V. LYNCH 9

did not impose new burdens on their past act of remaining in

the United States in reliance on Acosta’s status as the thenprevailing law. Briones put them “on notice of Acosta’s

vulnerability.” Garfias-Rodriguez, 702 F.3d at 522. Once

Briones was decided, the brothers could have left the United

States immediately and started the 10-year clock ticking

under § 1182(a)(9)(C)(ii), but they chose instead to stay and

hope for the best. Deciding to leave the United States at that

point and abandon their pending applications for § 1255(i)

relief no doubt “would have come at a high personal price.” 

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 46 (2006). “But

the branch of retroactivity law that concerns us here is meant

to avoid new burdens imposed on completed acts, not all

difficult choices occasioned by new law.” Id.

Second, the Correo brothers assert that they incurred legal

expenses pursuing § 1255(i) relief during the 21-month

period between Acosta and Briones. As noted, in GarfiasRodriguez we suggested that incurring such expenses could

potentially tilt the second and third factors in the petitioner’s

favor. 702 F.3d at 522. We made good on that suggestion in

Acosta-Olivarria v. Lynch, 799 F.3d 1271 (9th Cir. 2015),

where we held that applying for § 1255(i) relief and paying

the $1,000 filing fee during the 21-month window between

Acosta and Briones established a legitimate reliance interest

for purposes of the second and third factors. Id. at 1275–77.

The record does not reflect the amount of the expenses the

Correo brothers incurred during the relevant 21-month

window. They have asked us to remand the case to the BIA

so that they can supplement the record in that regard. We

grant their request. When the brothers appeared before the IJ

and the BIA, we had not yet decided Garfias-Rodriguez. No

one knew at that time what test for retroactivity would
10 CORREO-RUIZ V. LYNCH

govern, let alone that proof of expenses incurred during the

21-month window between Acosta and Briones might prove

critical to the outcome of the retroactivity analysis. We

therefore remand to the BIA with instructions to grant the

brothers an opportunity to supplement the record. The BIA

can then assess in the first instance, under the five-factor test

we adopted in Garfias-Rodriguez, whether Briones may be

applied retroactively in this case.

PETITION FOR REVIEW GRANTED; CASE

REMANDED.