- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 03-29-2013
- Case #: 09-35174
- Judge(s)/Court Below: Circuit Judge Silverman for the Court; Chief District Judge Pechman, Circuit Judges Canby and Callahan
- Full Text Opinion
Aurelio Duran Gonzales and other plaintiffs (“Duran Gonzales”), who seek class certification, are Mexican citizens who challenged the requirement that ten years elapse between the alien’s last departure from the United States and the I-212 waiver application. The Ninth Circuit, which had previously affirmed the district court’s dismissal, deferred to the Board of Immigration Appeals (“BIA”)’s interpretation of the statute requiring satisfaction of the ten-year elapse, even for I-212 waiver applicants already unlawfully in the United States and that this rule would have full retroactive effect. However, due to this Court’s ruling in 2011 in Garfias-Rodriguez, which adopted the Montgomery Ward retroactivity test for cases that give deference to an agency’s statutory interpretation, the first opinion (Duran Gonzales I) was withdrawn and the present opinion supersedes. After Garfias-Rodriguez, Duran Gonzales argued that the retroactive application should be limited to members whose I-212 waiver applications were filed prior to the Duran Gonzales I decision, compelling the court to follow BIA’s statutory interpretation because they had relied on pre-existing Ninth Circuit precedent. The government argued, under the Law-of-the-Case Doctrine, that Duran Gonzales I settled the retroactivity question notwithstanding the intervening Garfias-Rodriguez decision. The Ninth Circuit rejected the government’s argument and held that the Montgomery Ward test should be applied to determine if retroactive application of the statutory interpretation was appropriate under the intervening decision in Garfias-Rodriguez. VACATED and REMANDED.