F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D A V I D C O R

R E O -R U I Z and M I G

U E L C O R R E O -R U I Z , Petitioners
,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent

. N o. 12-72126

Ag ency Nos. A096-152-845 A096-152-846

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted November 5, 2015—Portland, Oreg on

F iled December 30, 2015

B efore: Alex Koz inski, Marsha S. B erz on, and Paul J . W atford, Circuit J udg es.
Opinion by

J u dg e W atfordC O R R E O -R U I Z V

. L Y

N C H 2

SUMMARY *

Im m igration

The panel g ranted David a nd Mig uel Correo-Ruiz ’s petition fo r r e v iew of the B oard of I mmig r ation Appeals’ decision finding the brothers inelig ible for adjustment o f

s t a t u s b ecause they w ere inadmissible pursuant to 8 U.S. C

. § 1182(a)(9)(C) under a retroactive app lication of Matter of Briones , 24 I

. & N. Dec. 355 (B I A 2007).

The panel applied t h e balancing test adopted in Garfias-Rodriguez v. Holder
, 702 F .3d 50 4 ( 9 t h Cir. 2 012) (en banc), to d etermine w hether Briones could be retroactively imposed upon the b rothers’ a p p lications for adjustment, f

iled when Acosta v. Gonzales
, 439 F .3d 550 (9th Cir. 2006), which Garfias-Rodriguez overruled, would have applied. The p anel held that the b rothers could estab l i sh a leg itimate reliance interest on pre- Briones l a w by showing they incurred leg al ex penses pursuing adjustment during the 2 1 -month period between Acosta a n d Briones

. B ecause th e record did not reflect ex penses th e brothers incurred during the period, the panel remanded to the B I A 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

.

* T h is s u m

m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C O R R E O -R U I Z V

. L Y

N C H 3

COUNSEL

Stephen W

. Manning (arg u ed), J ennifer M. Rotman, J essica M. B oell, I mmig rant L a w G r oup PC, Portland, Oreg o n, for Petitioners.

Anh-Thu P. Mai-W indle (arg ued), Senior L itig a tion Counsel; Stuart F

. Delery
, Acting A ssistant Attorney General; Stephen J

. F ly nn, Assistant Director, Office of I mmig ration L itig ation, United States De p ar tment of J ustice, Civil D ivision, W a shing ton, D.C., for Respondent.

OP INION

W A TF ORD, Circuit J udg e:

Petitio n ers David Correo-Ruiz and Mig uel Correo-Ruiz

are citiz ens of Me x i c o who entered the U nited States unlawfully in 1995. I n 2002, they a pplied for adjustment o f
status under a provision of the immig ration laws permitting certain non-citiz e ns to become lawful perma n e n t residents. See 8 U.S. C

. § 1255(i). I n 2007, while petitioners’ applications were pending
, the B o ard of I mmig ration Appeals (B I A) hel d t hat individuals in petitioners’ shoes a re categ orically inelig ible for relief under § 1255(i). In re Briones
, 24 I

. & N. D ec. 3 5 5 ( B I A 2007). I n GarfiasRodriguez v. H

older
, 702 F .3d 504 (9th Cir. 2012) (en banc),

we u pheld the B I A’s interpretation of the law and adopted a five-factor test for determining w hether Briones m ay be applied retroactively in a g iven case. W e are asked to decide

w hether Briones may be a pplied retroactively t o t h e petitioners in this case.C O R R E O -R U I Z V

. L Y

N C H 4

I

Cong r ess enacted 8 U.S.C. § 1255(i) in 1994. Pub. L

. No. 103–317, § 5 06(b), 108 Stat. 1724, 1 765–66. The statute, a s amended, allows non-citiz ens who e ntered the United States unlawfully to apply for a d

justment of status to that of a lawful permanent resident if certain conditions are met. One o f those conditions is that a n applicant must b e “admissible to the U nited States for permanent residence.” § 1255(i)(2)(A).

I n 1996, Cong ress p assed the I lleg al I mmig r ation Reform and I mmig rant Responsibility Act of 1996, known as I I RI RA. P u b. L

. No. 104–208, Div. C, 1 10 Stat. 3009–546. O f particular r elevance here, I I RI RA r enders “inadmissible” any non-citiz en w ho, after b eing unlawfully present in the United States for more than one y e a r, reen t e r s the United States without being lawfully admitted. § 1182(a)(9)(C)(i)(I ). (F o r

ease of reference, we w ill refer to this prov i s i o n a s § 1182(a)(9)(C).) Neither the tex t of I I RI RA nor its leg islative history ex plains whether an i n d i vidual w ho is inadmissible under this provision remains elig ible for relief under § 1255(i).

W e c onfronted the tens i o n b etween §§ 1 2 55(i) a nd 1182(a)(9)(C) in Acosta v. Gonzales , 439 F .3d 550 (9th Cir. 2006), overruled by G arfias-Rodriguez
, 702 F .3d a t 513–14. W e held that non-citiz ens who are inadmissible u n d er § 1182(a)(9)(C) nonetheless remain elig ible for relief under § 1255(i). Id. at 5 53–56. W e issued that decision in F ebruary 2006. Twenty -one months later, however, the B I A disag reed with our interpretation of the law. The B I A he l d i n Briones that a ny one who is ina d m i s sible under § 1182(a)(9)(C) is inelig ible for relief und e r § 1 2 5 5 (i). 24 I

. & N. Dec. at 370–71.C O R R E O -R U I Z V

. L Y

N C H 5

F or several y ears after the BI A ’s d ecision in B riones
, thing s stood in limbo in our c ircuit, as it was unclear whether

our decision in A c osta or the B I A’s decision in Briones controlled. I n 2012, we resolved that issue in Ga rfiasRodriguez
, where w e held t hat the B I A’s interpretation o f § 1 2 5 5 ( i ) i s b i n d i n g u n d e r N a t i o n a l C a b l e & Telecommunications Association v. Brand X Internet Servic e s , 5 4 5 U.S. 967 (2005). W e according ly overruled Acosta and adopte d Briones a s the law of the circuit. 7 0 2 F .3d at 5 13–14. Under current law, any o n e rende r e d inadmissible under § 1 182(a)(9)(C) is c ateg o rical l y precluded from obtaining adjustment of status under § 1255(i).

I I

The Correo brothers unlawfully entered the United States from Mex ico in 1995. After living in the United S t a t e s for

more than one y e ar, both left the United States a nd r e t u r n ed

a short time later without being lawfu l l y admitted. A s a result, they are inadmissible under § 1182(a)(9)(C).

I n 2002, the C o rr e o brothers applied for a djustment o f
status under § 1255(i). The United S tates Citiz enship a nd I mmig r a tion Services ( U S C I S ) h e l d the brothers’ applications in abey ance for several y ears, g iven the leg al uncertainty over

w h e t h e r i n d i v i d u a l s r e n d e r e d i n a d m i s s i b l e u n d e r § 1182(a)(9)(C) remained elig ible for relief under § 1255(i). B y the tim e USCI S acted on the brothers’ applications in 2009, however, the B I A had decided Briones

. USCI S denied their applications and initiated removal proceeding s against them.

At the e nsuing hearing before an immig ration judg e (I J ), the Correo brothers renewed their applications f or adjustmentC O R R E O -R U I Z V

. L Y

N C H 6

of status under § 125 5 ( i), notwithstanding the B I A ’s unfavorable law. The I J held that under Briones the brothers

were inelig ible for relief and ordered them r e m oved to Mex ico if they did not voluntarily depart. T he B I A up h eld the I J ’s decision.

I I I

The Correo brothers c o ncede that if we apply the law a s it currently stands— i.e.
, the rule established in Briones —they lo s e

. They are inadmissible under § 1182(a)(9)(C), a nd Briones squarely holds that such individuals are inelig ible for relief under § 1255(i). The b rothers arg ue, h o w ev e r, that Briones should not be applied retroactively to them.

I n Garfias-Rodriguez
, w e a pplied a f ive-factor b alancing
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 impressi o n, (2) whether the new rule represents a

n abrupt departure from well established practice or merely attempts to fill

a void in an unsettl e d area of law, (3) the

ex tent to which the p art y ag ainst whom the

n ew rule is applied relied on the former rule
, (4) the deg ree o f the burden which a retroactive order impo s e s o n a party , a nd (5) the statutory interest in apply ing a new rule d espite the reliance o f a p ar ty on the old standard.C O R R E O -R U I Z V

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N C H 7

702 F .3d at 518 (quoting Mont g o me r y W ard & Co. v. F TC
, 691 F .2d 1322, 1333 (9th Cir. 1982)). B ecause the test turns in part on the ex tent to which a petitioner relied on the law a s it stood before Briones
, we held that the balancing analy sis
must be conducted on a case -b y -case basis in cases concerning the retroactivity of Briones

. Id. at 519.

W h at we said in Garfias-Rodriguez about the first, fourth, and fifth factors applies with equal force in this case. W e concluded that the first factor was neutral—it did not favor either t h e go vernment o r the petitioner. The fourth factor
st r o n gly favored the petitioner, since r etroactive a pplication of Briones would result in his almost certain removal from
t h e U n ited States. The fifth f actor leaned somewhat in t h e g overnment’s favor in lig ht of the g o v ernment’s interest in uniform application of the immig ration laws. Id. a t 521–23. All of that is true in this case as well.

The second and third factors are the decisive ones in this
contex t, and they

are “closely

intertwined.” Id. at 521. “I f a

new rule represents an abrupt departure from well e stablished practice, a p arty ’s reliance on the p r i o r rule is likely to be reasonable, whereas if the rule merely a ttempts to fill a void in an unsettled area of law, relia n c e is less likely to be reasonable.” I

d. (internal quotation marks omitted).

I n Garfias-Rodriguez
, the petitioner a sserted two separate reliance interests, neither of which we found leg itimate. The petitioner arg ued that he had reasonably relied on pre- Briones law (1) in d eciding to apply for r e lief under § 1255(i), which had the effect of alerting the g overnment to his u n l a wful
presence in the United S t a t e s; and (2) in deciding to pay the $1,000 f iling fee. W e h eld that the only pre- Briones law that

c o uld h a ve trig g ered a

n y leg itimate r eliance interest w a sC O R R E O -R U I Z V

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N C H 8

A costa

. Since the petitioner had f iled his § 1255( i ) application in 2002, four y ears b efore Acosta was decided, he obviously could not have r elied o n that case in deciding to take either of the actions he identified. I d. at 522.

However, we sug g ested in Garfias-Rodriguez that the petitioner mig ht h a v e been able to show a leg itimate reliance intere s t h ad he incurred ex penses pursuing his § 1 255(i) application d

uring the 21-month period between Acosta a nd Briones

. The petitioner’s c o uns el asserted at oral arg ument that his client had indeed incurred such ex penses, but nothing in the record supported the c laim, and c ounsel did not request

a remand to supplement the record. As a result, we h e ld that the second and third factors weig h ed ag ainst the petitioner, which meant the g overnment’s inter e s t in apply ing Briones retroactively

prevailed. Id. at 521–23.

L ike the p etitioner in Garfias-Rodriguez
, the Correo brothers fi l e d t h e ir applications for § 1255(i) relief in 2002,

so they c ould not have relied on Acosta in deciding to pay the $1,000 filing fee. B ut they contend that they relied on Acosta in two other respects that g ive r i se to leg itimate reliance interests.

F irst, they assert that they relied o n Acosta by deciding to remain in the United States unlawfully so tha t they could continue p ursuing their pending § 1255(i) applications. Had they r eturned t o M e x ico in 2006, they point out, they would by now have satisfied almost all of the 10-y ear period fo r a

w a i v e r o f t h e i n a d m i s s i b i lity b ar, see 8 U

. S

. C

. § 1182(a)(9)(C)(ii), which in turn would have allowed them
to file new applications f o r § 1255(i) relief unimpeded b y Briones

. W e do not think that qualifies as a leg itimate

r e liance interest. The c hang e in law occasioned by Brio n e sC O R R E O -R U I Z V

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N C H 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 Ac osta ’s

v ulnerability .” Garfias-Rodriguez
, 702 F .3d a t 522. O n c e Briones was decided, the brothers could have left the United S tates immediately a

n d started the 10-y ear clock ticking under § 1182(a)(9)(C)(ii), but they chose instead to stay a

nd hope f or the best. Deciding to leave the United States at that point and abandon their pending applications for § 1 255(i) relief no d o u b t “would have come at a hig h p ersonal price.” Fernandez-Vargas v. Gonzales
, 548 U .S. 30, 46 (2006). “B ut the branch of retroactivity law that concerns us here is meant to avoid new b u rdens imposed on completed acts, not all difficult choices occasioned by new law.” Id.

Second, the Correo brothers assert that they incurred leg al

ex p enses p ursuing § 1255(i) relie f during the 21-month period between Acosta a

nd Briones

. A s n o t e d, in GarfiasRodriguez we sug g ested that incurring s u c h ex penses could potentially tilt the second a nd third factors in the petitioner’s favor. 702 F .3d a t 522. W e made g ood on that sug g estion in Acosta-Olivarria v. Lynch
, 799 F .3d 1271 (9 t h Cir. 2015), where we held that apply ing fo r § 1255(i) relief and pay ing the $1,000 filing fee during the 21-month window betwe en Acosta a nd Briones established a leg itimate reliance interest for purposes of the second and third factors. Id. at 1275–77.

The record does not reflect the a mount of the ex penses the Correo b rothers incurred during the relevant 21-month window. They

have asked us to remand the case to the B I A

so that they can supplement t h e r e c ord in that reg ard. W e g rant their request. W hen the brothers appeared before the I J and the B I A, w e had not y et decided Garfias-Rodriguez

. No

one kne w a t that time what test for retroactivity wouldC O R R E O -R U I Z V

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N C H 10

g overn, let alone t h a t proof of ex penses incurred during the 21-month window between Acosta and Briones mig ht prove critical to the outcome of the retroactivity analy sis. W e therefore r emand to the B I A with instructions to g rant the b r o thers an opportunity to supplement the record. Th e BI A

can then assess in the f

irst instance, under the five-factor test

we adopted in Garfias-Rodriguez
, w het h e r Briones may be applied retroactively

in this case.

P ETITION FOR REVIEW G RANTED; CASE REMANDED.