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.

U.S. DEPARTMENT OF HOMELAND

SECURITY and JANET NAPOLITANO,

Secretary of the Department of

Homeland Security,

Defendants-Appellees.

No. 09-35174

D.C. No.

2:06-cv-01411-

MJP

ORDER AND

OPINION

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.
2 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY

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

*

been prepared by court staff for the convenience of the reader.

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The panel ordered withdrawn its original October 25,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).
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.
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
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
6 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY

 A recent decision interprets the ten-year bar to require the alien to 1

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).

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
GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 7

 Our 2007 decision in this case stated that: “The I-212 waiver 2

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.

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. 8 U.S.C. 2

§ 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)
8 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY

 The BIA reasoned: 3

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.

 In both of these 2009 district court case captions, Duran Gonzales’s 4

surname is misspelled.

(citation and quotation marks omitted). DHS subsequently

3

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). The district court certified 4

Plaintiffs’ proposed class and issued a preliminary injunction.

Gonzales v. DHS, 239 F.R.D. 620, 627, 629 (W.D. Wash.

2006).
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
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-
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-
12 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY

 Again, by a separate order, issued concurrently herewith, we have 5

withdrawn that prior opinion.

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. Citing Harper v. Virginia

5

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
GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 13

 We noted: 6

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).

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
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.
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
16 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY

 The withdrawn panel decision from this second appeal relied in part on 7

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.

authority.” Accordingly, we will not apply the law-of-the- 7

case 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
GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 17

 See also Carrillo de Palacios, 2013 WL 310387, at *4–5 (applying 8

Montgomery Ward test to petitioner’s case where complete administrative

record was available on petition for review of a BIA decision).

Garfias-Rodriguez, it would not be proper for us to apply 8

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 whetherthe provisions ofRule 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 theirstatus 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
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
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
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
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.
22 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY

 In Garfias-Rodriguez, we noted that the first factor – whether the 1

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.

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, and the fourth factor – the degree of 1
GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 23

 In Garfias-Rodriguez, we noted: 2

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.

 Our opinion in Garfias-Rodriguez notes that the “second and the third 3

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).

 The Supreme Court commented: 4

[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

burden – favors petitioners, they would have to make a 2

strong showing on the second factor, reliance, just to balance

the factors. But petitioners would be hard pressed to make

such a showing. The opinion in Garfias-Rodriguez suggests 3

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). Thus, it does not 4
24 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY

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.

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
GONZALES V. U.S. DEP’T OF HOMELAND SECURITY 25

 The en banc court explained: 5

[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.

 The en banc opinion states: “We conclude that aliens who are 6

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.

agency’s decision. 702 F.3d at 511. Thus, Garfias5

Rodriguez 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. 702 F.3d at 514. 6

The en banc court then applied its ruling to GarfiasRodriguez and in doing so adopted a new rule. But Garfias-
26 GONZALES V. U.S. DEP’T OF HOMELAND SECURITY

 Garfias-Rodriguez did not present a law-of-the-case issue because 7

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).

 The direction that the Montgomery Ward standard is to be applied 8

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.

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. Rather, in 7

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. 702 F.3d 8

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.
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

adjustmentsfor fear theywill 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.