                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 29 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ANTONIO SALAZAR-ARZOLA,                          No. 12-71362

              Petitioner,                        Agency No. A095-565-261

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,

              Respondent.


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

                            Submitted October 10, 2014**
                                Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

       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

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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, 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, 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


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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 Salazar-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

2003 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, 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.




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