Antonio Salazar-Arzola v. Eric Holder, Jr.

585 F. App'x 599

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2014
• Docket: 12-71362
• Status: Unpublished

Opinion

MEMORANDUM **

Petitioner Antonio Salazar-Arzola (“Salazar-Arzola”) petitions this court for review of the Board of Immigration Appeals’s (“BIA”) dismissal of his appeal of the Immigration Judge’s (“IJ”) decision to pretermit his application for adjustment of status. Salazar-Arzola argues that the BIA erred in its determination that his status as an inadmissible alien under 8 U.S.C. § 1182(a)(9)(C)(i)(I) precludes eligibility for adjustment of status. We deny the petition.

We review de novo the BIA’s determinations of questions of law. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir.2010).

In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007), bars individuals who are inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) from seeking adjustment of status under 8 U.S.C. § 1255(i). Salazar-Arzola concedes that this court’s decision in Garfias-Rodriguez v. Holder, 702 F.3d 504, 514 (9th Cir.2012) (en banc), gives Briones deference under Chevron and Brand X and explicitly overrules conflicting precedent in Acosta v. Gonzales, 439 F.3d 550, 556 (9th Cir.2006). Therefore, the BIA did not err in concluding that Briones, rather than Acosta, is the controlling authority.

Moreover, under Garfias-Rodriguez, the BIA did not err in retroactively applying Briones to Salazar-Arzola’s application for adjustment of status. When this court gives Brand X deference to an agency’s statutory interpretation and overrules earlier precedent in response to that interpretation, it considers the retroactive application of the agency interpretation on a case-by-case basis. Garfias-Rodriguez, 702 F.3d at 519-20. Under the retroactivity analysis prescribed in Montgomery Ward & Co., Inc. v. FTC, we must consider the extent to which a new rule departs from well established law, whether the party reasonably relied upon the previous rule, the burden retroactivity imposes on that party, and the statutory interest in retroactive application. 691 F.2d 1322, 1333 (9th Cir.1982).

Montgomery Ward's retroactivity analysis favors the government in this case. Although pretermitting his application for adjustment of status severely burdens Sa lazar-Arzola and his family, retroactivity is proper because he fails to demonstrate that his actions, such as his decision to depart the United States in 2008 and return less than a year later, were based upon a reasonable reliance on a rule that would have deemed him eligible for adjustment of status. The only period during which Salazar-Arzola could have alleged reasonable reliance on such a rule was the brief period between Acosta and Briones, but Salazar did not seek adjustment of status until after that period, in 2008. See Garfias-Rodriguez, 702 F.3d at 522.

Retroactive application of Briones is proper as applied to the facts and timing of Salazar-Arzola’s application. Therefore, the BIA did not err in concluding that his status as an inadmissible alien under 8 U.S.C. § 1182(a)(9)(C)(i)(I) renders him ineligible for adjustment of status.

PETITION DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.