Oscar Martinez Ramirez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2021
• Docket: 20-70075
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR MARTINEZ RAMIREZ, No. 20-70075

Petitioner, Agency No. A077-289-010

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted December 9, 2021** Pasadena, California

Before: KELLY,*** M. SMITH, and FORREST, Circuit Judges.

Oscar Martinez Ramirez seeks review of the Board of Immigration Appeals’

(BIA) order denying his application for adjustment of status. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. pursuant to 8 U.S.C. § 1252, and we affirm. Because the parties are familiar with the

facts, we do not recount them here, except as necessary to provide context to our

ruling.

In 2007, the BIA held in In re Briones, 24 I. & N. Dec. 355 (BIA 2007), that

noncitizens who are inadmissible pursuant to 8 U.S.C. § 1182(a)(9)(C)(i)(I) are

ineligible for adjustment of status pursuant to 8 U.S.C. § 1255(i). Martinez concedes

that he is inadmissible pursuant to § 1182(a)(9)(C)(i)(I), but argues that the BIA

erred by applying Briones retroactively to deny his application for adjustment of

status because he relied on our decision in Acosta v. Gonzales, 439 F.3d 550 (9th

Cir. 2006), which held that noncitizens who are inadmissible pursuant to §

1182(a)(9)(C)(i)(I) are still eligible for adjustment of status.

The Government, citing our unpublished memorandum disposition in

Hernandez v. Sessions, 697 F. App’x 492 (9th Cir. 2017), argues that because

Martinez applied for adjustment of status after the BIA decided Briones, the BIA did

not apply Briones retroactively, and we therefore need not analyze retroactivity

pursuant to Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982). But

unpublished memorandum dispositions are not precedent, 9th Cir. R. 36-3(a), and

we analyzed retroactivity in a published opinion in directly analogous circumstances

in Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013). Therefore, we will

analyze retroactivity here.

2 Even so, the result is the same: The BIA properly determined that Martinez is

ineligible for adjustment of status pursuant to § 1255(i) and Briones. In Garfias-

Rodriguez v. Holder, we held that it is not reasonable for noncitizens applying for

adjustment of status after Briones to rely on Acosta. 702 F.3d 504, 522 (9th Cir.

2012) (en banc). Therefore, it was not reasonable for Martinez to rely on Acosta

here, and the second, third, and fifth Montgomery Ward factors weigh in favor of

applying Briones retroactively, while only the fourth factor weighs against it. See id.

at 521–23. Therefore, the BIA properly applied Briones to Martinez’s application

for adjustment of status and properly denied the application pursuant to § 1255(i).

See id.

PETITION FOR REVIEW DENIED.