               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DAVID CORREO-RUIZ and MIGUEL             No. 12-72126
CORREO-RUIZ,
                     Petitioners,        Agency Nos.
                                         A096-152-845
                v.                       A096-152-846

LORETTA E. LYNCH, Attorney
General,                                  OPINION
                      Respondent.


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

             Argued and Submitted
        November 5, 2015—Portland, Oregon

               Filed December 30, 2015

      Before: Alex Kozinski, Marsha S. Berzon,
        and Paul J. Watford, Circuit Judges.

              Opinion by Judge Watford
2                    CORREO-RUIZ V. LYNCH

                           SUMMARY*


                           Immigration

    The panel granted David and Miguel Correo-Ruiz’s
petition for review of the Board of Immigration Appeals’
decision finding the brothers ineligible for adjustment of
status because they were inadmissible pursuant to 8 U.S.C.
§ 1182(a)(9)(C) under a retroactive application of Matter of
Briones, 24 I. & N. Dec. 355 (BIA 2007).

     The panel applied the balancing test adopted in
Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012)
(en banc), to determine whether Briones could be
retroactively imposed upon the brothers’ applications for
adjustment, filed when Acosta v. Gonzales, 439 F.3d 550 (9th
Cir. 2006), which Garfias-Rodriguez overruled, would have
applied. The panel held that the brothers could establish a
legitimate reliance interest on pre-Briones law by showing
they incurred legal expenses pursuing adjustment during the
21-month period between Acosta and Briones. Because the
record did not reflect expenses the brothers incurred during
the period, the panel remanded to the BIA with instructions
to allow them to supplement the record and to assess in the
first instance under Garfias-Rodriguez whether Briones may
be applied retroactively.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  CORREO-RUIZ V. LYNCH                       3

                         COUNSEL

Stephen W. Manning (argued), Jennifer M. Rotman, Jessica
M. Boell, Immigrant Law Group PC, Portland, Oregon, for
Petitioners.

Anh-Thu P. Mai-Windle (argued), Senior Litigation Counsel;
Stuart F. Delery, Acting Assistant Attorney General; Stephen
J. Flynn, Assistant Director, Office of Immigration Litigation,
United States Department of Justice, Civil Division,
Washington, D.C., for Respondent.


                         OPINION

WATFORD, Circuit Judge:

    Petitioners David Correo-Ruiz and Miguel Correo-Ruiz
are citizens of Mexico who entered the United States
unlawfully in 1995. In 2002, they applied for adjustment of
status under a provision of the immigration laws permitting
certain non-citizens to become lawful permanent residents.
See 8 U.S.C. § 1255(i). In 2007, while petitioners’
applications were pending, the Board of Immigration Appeals
(BIA) held that individuals in petitioners’ shoes are
categorically ineligible for relief under § 1255(i). In re
Briones, 24 I. & N. Dec. 355 (BIA 2007). In Garfias-
Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc),
we upheld the BIA’s interpretation of the law and adopted a
five-factor test for determining whether Briones may be
applied retroactively in a given case. We are asked to decide
whether Briones may be applied retroactively to the
petitioners in this case.
4                 CORREO-RUIZ V. LYNCH

                               I

    Congress enacted 8 U.S.C. § 1255(i) in 1994. Pub. L. No.
103–317, § 506(b), 108 Stat. 1724, 1765–66. The statute, as
amended, allows non-citizens who entered the United States
unlawfully to apply for adjustment of status to that of a lawful
permanent resident if certain conditions are met. One of
those conditions is that an applicant must be “admissible to
the United States for permanent residence.” § 1255(i)(2)(A).

    In 1996, Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, known as IIRIRA.
Pub. L. No. 104–208, Div. C, 110 Stat. 3009–546. Of
particular relevance here, IIRIRA renders “inadmissible” any
non-citizen who, after being unlawfully present in the United
States for more than one year, reenters the United States
without being lawfully admitted. § 1182(a)(9)(C)(i)(I). (For
ease of reference, we will refer to this provision as
§ 1182(a)(9)(C).) Neither the text of IIRIRA nor its
legislative history explains whether an individual who is
inadmissible under this provision remains eligible for relief
under § 1255(i).

    We confronted the tension between §§ 1255(i) and
1182(a)(9)(C) in Acosta v. Gonzales, 439 F.3d 550 (9th Cir.
2006), overruled by Garfias-Rodriguez, 702 F.3d at 513–14.
We held that non-citizens who are inadmissible under
§ 1182(a)(9)(C) nonetheless remain eligible for relief under
§ 1255(i). Id. at 553–56. We issued that decision in February
2006. Twenty-one months later, however, the BIA disagreed
with our interpretation of the law. The BIA held in Briones
that anyone who is inadmissible under § 1182(a)(9)(C) is
ineligible for relief under § 1255(i). 24 I. & N. Dec. at
370–71.
                  CORREO-RUIZ V. LYNCH                       5

    For several years after the BIA’s decision in Briones,
things stood in limbo in our circuit, as it was unclear whether
our decision in Acosta or the BIA’s decision in Briones
controlled. In 2012, we resolved that issue in Garfias-
Rodriguez, where we held that the BIA’s interpretation of
§ 1255(i) is binding under National Cable &
Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967 (2005). We accordingly overruled
Acosta and adopted Briones as the law of the circuit.
702 F.3d at 513–14. Under current law, anyone rendered
inadmissible under § 1182(a)(9)(C) is categorically precluded
from obtaining adjustment of status under § 1255(i).

                              II

    The Correo brothers unlawfully entered the United States
from Mexico in 1995. After living in the United States for
more than one year, both left the United States and returned
a short time later without being lawfully admitted. As a
result, they are inadmissible under § 1182(a)(9)(C).

    In 2002, the Correo brothers applied for adjustment of
status under § 1255(i). The United States Citizenship and
Immigration Services (USCIS) held the brothers’ applications
in abeyance for several years, given the legal uncertainty over
whether individuals rendered inadmissible under
§ 1182(a)(9)(C) remained eligible for relief under § 1255(i).
By the time USCIS acted on the brothers’ applications in
2009, however, the BIA had decided Briones. USCIS denied
their applications and initiated removal proceedings against
them.

    At the ensuing hearing before an immigration judge (IJ),
the Correo brothers renewed their applications for adjustment
6                 CORREO-RUIZ V. LYNCH

of status under § 1255(i), notwithstanding the BIA’s
unfavorable law. The IJ held that under Briones the brothers
were ineligible for relief and ordered them removed to
Mexico if they did not voluntarily depart. The BIA upheld
the IJ’s decision.

                              III

     The Correo brothers concede that if we apply the law as
it currently stands—i.e., the rule established in Briones—they
lose. They are inadmissible under § 1182(a)(9)(C), and
Briones squarely holds that such individuals are ineligible for
relief under § 1255(i). The brothers argue, however, that
Briones should not be applied retroactively to them.

    In Garfias-Rodriguez, we applied a five-factor balancing
test to determine when Briones may be applied retroactively
to petitioners who applied for § 1255(i) relief before Briones
was decided. That test requires us to consider:

       (1) whether the particular case is one of first
       impression, (2) whether the new rule
       represents an abrupt departure from well
       established practice or merely attempts to fill
       a void in an unsettled area of law, (3) the
       extent to which the party against whom the
       new rule is applied relied on the former rule,
       (4) the degree of the burden which a
       retroactive order imposes on a party, and
       (5) the statutory interest in applying a new
       rule despite the reliance of a party on the old
       standard.
                  CORREO-RUIZ V. LYNCH                        7

702 F.3d at 518 (quoting Montgomery Ward & Co. v. FTC,
691 F.2d 1322, 1333 (9th Cir. 1982)). Because the test turns
in part on the extent to which a petitioner relied on the law as
it stood before Briones, we held that the balancing analysis
must be conducted on a case-by-case basis in cases
concerning the retroactivity of Briones. Id. at 519.

    What we said in Garfias-Rodriguez about the first, fourth,
and fifth factors applies with equal force in this case. We
concluded that the first factor was neutral—it did not favor
either the government or the petitioner. The fourth factor
strongly favored the petitioner, since retroactive application
of Briones would result in his almost certain removal from
the United States. The fifth factor leaned somewhat in the
government’s favor in light of the government’s interest in
uniform application of the immigration laws. Id. at 521–23.
All of that is true in this case as well.

    The second and third factors are the decisive ones in this
context, and they are “closely intertwined.” Id. at 521. “If a
new rule represents an abrupt departure from well established
practice, a party’s reliance on the prior rule is likely to be
reasonable, whereas if the rule merely attempts to fill a void
in an unsettled area of law, reliance is less likely to be
reasonable.” Id. (internal quotation marks omitted).

    In Garfias-Rodriguez, the petitioner asserted two separate
reliance interests, neither of which we found legitimate. The
petitioner argued that he had reasonably relied on pre-Briones
law (1) in deciding to apply for relief under § 1255(i), which
had the effect of alerting the government to his unlawful
presence in the United States; and (2) in deciding to pay the
$1,000 filing fee. We held that the only pre-Briones law that
could have triggered any legitimate reliance interest was
8                 CORREO-RUIZ V. LYNCH

Acosta. Since the petitioner had filed his § 1255(i)
application in 2002, four years before Acosta was decided, he
obviously could not have relied on that case in deciding to
take either of the actions he identified. Id. at 522.

     However, we suggested in Garfias-Rodriguez that the
petitioner might have been able to show a legitimate reliance
interest had he incurred expenses pursuing his § 1255(i)
application during the 21-month period between Acosta and
Briones. The petitioner’s counsel asserted at oral argument
that his client had indeed incurred such expenses, but nothing
in the record supported the claim, and counsel did not request
a remand to supplement the record. As a result, we held that
the second and third factors weighed against the petitioner,
which meant the government’s interest in applying Briones
retroactively prevailed. Id. at 521–23.

    Like the petitioner in Garfias-Rodriguez, the Correo
brothers filed their applications for § 1255(i) relief in 2002,
so they could not have relied on Acosta in deciding to pay the
$1,000 filing fee. But they contend that they relied on Acosta
in two other respects that give rise to legitimate reliance
interests.

    First, they assert that they relied on Acosta by deciding to
remain in the United States unlawfully so that they could
continue pursuing their pending § 1255(i) applications. Had
they returned to Mexico in 2006, they point out, they would
by now have satisfied almost all of the 10-year period for a
waiver of the inadmissibility bar, see 8 U.S.C.
§ 1182(a)(9)(C)(ii), which in turn would have allowed them
to file new applications for § 1255(i) relief unimpeded by
Briones. We do not think that qualifies as a legitimate
reliance interest. The change in law occasioned by Briones
                   CORREO-RUIZ V. LYNCH                        9

did not impose new burdens on their past act of remaining in
the United States in reliance on Acosta’s status as the then-
prevailing law. Briones put them “on notice of Acosta’s
vulnerability.” Garfias-Rodriguez, 702 F.3d at 522. Once
Briones was decided, the brothers could have left the United
States immediately and started the 10-year clock ticking
under § 1182(a)(9)(C)(ii), but they chose instead to stay and
hope for the best. Deciding to leave the United States at that
point and abandon their pending applications for § 1255(i)
relief no doubt “would have come at a high personal price.”
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 46 (2006). “But
the branch of retroactivity law that concerns us here is meant
to avoid new burdens imposed on completed acts, not all
difficult choices occasioned by new law.” Id.

    Second, the Correo brothers assert that they incurred legal
expenses pursuing § 1255(i) relief during the 21-month
period between Acosta and Briones. As noted, in Garfias-
Rodriguez we suggested that incurring such expenses could
potentially tilt the second and third factors in the petitioner’s
favor. 702 F.3d at 522. We made good on that suggestion in
Acosta-Olivarria v. Lynch, 799 F.3d 1271 (9th Cir. 2015),
where we held that applying for § 1255(i) relief and paying
the $1,000 filing fee during the 21-month window between
Acosta and Briones established a legitimate reliance interest
for purposes of the second and third factors. Id. at 1275–77.

    The record does not reflect the amount of the expenses the
Correo brothers incurred during the relevant 21-month
window. They have asked us to remand the case to the BIA
so that they can supplement the record in that regard. We
grant their request. When the brothers appeared before the IJ
and the BIA, we had not yet decided Garfias-Rodriguez. No
one knew at that time what test for retroactivity would
10                 CORREO-RUIZ V. LYNCH

govern, let alone that proof of expenses incurred during the
21-month window between Acosta and Briones might prove
critical to the outcome of the retroactivity analysis. We
therefore remand to the BIA with instructions to grant the
brothers an opportunity to supplement the record. The BIA
can then assess in the first instance, under the five-factor test
we adopted in Garfias-Rodriguez, whether Briones may be
applied retroactively in this case.

  PETITION FOR REVIEW GRANTED; CASE
REMANDED.
