- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 10-19-2012
- Case #: 09-72603
- Judge(s)/Court Below: En Banc; Circuit Judge Bybee for the Court; Concurrence by Chief Judge Kozinski; Concurrence by Circuit Judge Gould; Partial Concurrence and Partial Dissent by Circuit Judge Graber; Dissent by Circuit Judge Reinhardt; Dissent by Circuit Judge Paez.
- Full Text Opinion
Francisco Javier Garfias-Rodriguez (Garfias) is a Mexican citizen who unlawfully entered the United States. He was charged “with removability under INA § 212(a)(6)(A)(i) … and § 212(a)(9)(C)(i).” Before an immigration judge (IJ), Garfias conceded to both charges and requested adjustment of status. The IJ denied the request because Garfias “was inadmissible under INA § 212 and thus ineligible for adjustment under § 245(i).” Garfias appealed. The BIA sustained his appeal and remanded his case because the Ninth Circuit has “‘held that an alien inadmissible under [§] 212(a)(9)(C)(i) of the Act could apply for adjustment of status under [§] 245(i) in conjunction with a request that the Attorney General retroactively consent to his reapplying for admission.’” The IJ denied Garfias’ request for adjustment again because “Garfias could not establish that his application was filed before § 245(i)” expired. Garfias appealed. The BIA dismissed his appeal because the BIA held in In re Briones that “an alien could not seek status adjustment under § 245(i) if he was ineligible for admission under § 212(a)(9)(C)(i)(I).” Garfias appealed. The Ninth Circuit reasoned that it had to defer to the BIA because the Chevron deference was applicable to Briones. After applying the Montgomery Ward & Co. v. FTC test to Garfias' case, the Court concluded that Briones could retroactively affect Garfias. Thus, the Court held that it must defer to the BIA’s decision that “aliens who are inadmissible under § 212(a)(9)(C)(i)(I) are not eligible for adjustment of status under § 245(i)” and that this decision retroactively applied to Garfias. PETITION DENIED.