                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FRANCISCO JAVIER GARFIAS-              
RODRIGUEZ,
                                            No. 09-72603
                         Petitioner,
                v.                          Agency No.
                                            A079-766-006
ERIC H. HOLDER, Jr., Attorney
                                             OPINION
General,
                       Respondent.
                                       
         On Petition for Review of an Order of the
              Board of Immigration Appeals

              Argued and Submitted En Banc
            June 20, 2012—Pasadena, California

                   Filed October 19, 2012

 Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
 Susan P. Graber, Raymond C. Fisher, Ronald M. Gould,
Richard A. Paez, Johnnie B. Rawlinson, Richard R. Clifton,
   Jay S. Bybee, Sandra S. Ikuta, and Mary H. Murguia,
                     Circuit Judges.

                 Opinion by Judge Bybee;
          Concurrence by Chief Judge Kozinski;
              Concurrence by Judge Gould;
 Partial Concurrence and Partial Dissent by Judge Graber;
               Dissent by Judge Reinhardt;
                  Dissent by Judge Paez




                            12583
12584            GARFIAS-RODRIGUEZ v. HOLDER
                        SUMMARY

            Immigration/Removal and Asylum

   The court of appeals denied a petition. The court held that
aliens who are inadmissible under § 212(a)(9)(C)(i)(I) are not
eligible for adjustment of status under § 245(i).

   Petitioner Francisco Garfias-Rodriguez—a citizen of Mex-
ico who had married a United States citizen and applied to
adjust his status to that of a lawful permanent resident—was
charged with being removable from the United States as an
alien present in the United States without being admitted or
paroled under § 212(a)(6)(A)(i) of the Immigration and
Nationality Act. Garfias-Rodriguez was also allegedly remov-
able under INA § 212(a)(9)(C)(i) as an alien who had been
unlawfully present in the United States for an aggregate
period of more than one year and reentered without permis-
sion. Garfias-Rodriguez conceded removability but requested
adjustment of status under § 245(i) and voluntary departure.

  The immigration judge denied relief and the Board of
Immigration Appeals dismissed Garfias-Rodriguez’s appeal
pursuant the BIA’s decision in In re Briones, which held that
an alien could not seek status adjustment under § 245(i) if he
was ineligible for admission under § 212(a)(9)(C)(i)(I). The
BIA gave Garfias-Rodriguez 60 days to voluntarily depart,
but informed him that filing a petition for review would auto-
matically terminate the grant of voluntary departure.

  Garfias-Rodriguez petitioned for review. A panel of the
court of appeals denied Garfias-Rodriguez’s petition, but the
court later decided to rehear the case en banc.

   [1] An applicant’s status may be adjusted under § 245(i)
only if the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence. [2]
Section 212 renders inadmissible any alien who has been
                 GARFIAS-RODRIGUEZ v. HOLDER               12585
unlawfully present in the United States for an aggregate
period of more than one year, and who enters or attempts to
reenter the United States without being admitted. [3] Con-
gress has not explained how to handle an alien who is inad-
missible under § 212(a)(9)(C)(i)(I) but otherwise qualified for
adjustment of status under § 245(i).

   [4] In Acosta v. Gonzales, the Ninth Circuit held that aliens
inadmissible under § 212(a)(9)(C)(i)(I) remained eligible for
adjustment of status under § 245(i). [5] However, in Briones,
the BIA concluded that aliens who are inadmissible under
§ 212(a)(9)(C)(i)(I) cannot qualify for § 245(i) adjustment,
absent a waiver of inadmissibility. [6] The BIA’s interpreta-
tion was a permissible reading of the statute. In light of the
BIA’s reasoned opinion, the court of appeals held that Briones
was entitled to deference. The court of appeals concluded that
aliens who are inadmissible under § 212(a)(9)(C)(i)(I) are not
eligible for adjustment of status under § 245(i). The court
overruled Acosta to the extent it holds otherwise.

   [7] An agency may act through adjudication to clarify an
uncertain area of the law, so long as the retroactive impact of
the clarification is not excessive or unwarranted. [8] Garfias-
Rodriguez could not avoid the retroactive effect of Briones on
his case. [9] When he filed his § 245(i) application in 2002,
Garfias-Rodriguez had no reliance interest because the law
was not settled or well established. The court of appeals held
that the BIA properly applied the Briones rule to Garfias-
Rodriguez.

   [10] Under 8 C.F.R. § 1240.26(i), if an alien files a petition
for review of a final removal order, any grant of voluntary
departure shall terminate automatically upon the filing of the
petition or other judicial challenge. [11] Other circuits have
acknowledged that this regulation resolves the question of
whether courts have authority to stay the voluntary departure
period pending review, since it provides for the automatic ter-
mination of that period. [12] The court of appeals agreed with
12586            GARFIAS-RODRIGUEZ v. HOLDER
its sister circuits, concluding that, assuming that § 1240.26(i)
is valid, it had no authority to issue an equitable stay of
Garfias-Rodriguez’s voluntary departure period.

   [13] The Sixth Circuit has squarely held that § 1240.26(i)
is a reasonable interpretation of § 1229c(e). The court of
appeals joined the Sixth Circuit in finding the regulation to be
a valid exercise of delegated power. [14] In light of the broad
grant of discretion over voluntary departure in both
§§ 1229c(b)(1) and 1229c(e), it had to be held that the pro-
mulgation of § 1240.26(i) was a proper exercise of the Attor-
ney General’s authority. [15] Garfias-Rodriguez’s grant of
voluntary departure terminated upon his decision to file a
petition for review. His petition had to be denied.

   Chief Judge Kozinski concurred in part, writing that
because this case involved no retroactive application of law,
there was no reason to discuss retroactivity.

   Judge Gould concurred in the result, disagreeing with the
test the majority applied to determine when an agency’s deci-
sion should be applied retroactively.

   Judge Graber concurred in part, and dissented in part, writ-
ing that under either framework for deciding retroactivity,
retroactive application of the new legal rule was appropriate.

   Judge Reinhardt dissented, writing that the regulation auto-
matically terminating voluntary departure in the event that a
non-citizen has the temerity to file a petition for review of the
BIA’s decision on the underlying issue with the court of
appeals effectively penalizes non-citizens for exercising a
fundamental right in the American legal system; the regula-
tion is an improper exercise of the powers delegated to the
Attorney General.

   Judge Paez dissented, writing that, applying the proper
retroactivity test, Chevron Oil, the rule of Briones should
apply in the Ninth Circuit only prospectively.
                GARFIAS-RODRIGUEZ v. HOLDER             12587
                         COUNSEL

Matt Adams, Northwest Immigrant Rights Project, Seattle,
Washington, for the petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Donald
E. Keener, Deputy Director, and Luis E. Perez, Senior Litiga-
tion Counsel, Department of Justice, Civil Division, Washing-
ton, D.C.; John W. Blakeley, Senior Litigation Counsel,
Department of Justice, Office of Immigration Litigation,
Washington, D.C., for the respondent.

Gary A. Watt, Amicus Curiae, Hastings Appellate Project,
Pro Bono Counsel for Eriberto Errera, San Francisco, Califor-
nia.

Beth Werlon, Amicus Curiae, Named Plaintiffs and Proposed
Redefined Class in Duran Gonzales v. Department of Home-
land Security, No. 09-35174 (9th Cir.), Washington, D.C.

Charles Roth, Amicus Curiae, National Immigration Justice
Center, Chicago, Illinois.

Stephen W. Manning, Amicus Curiae, American Immigration
Lawyers Association, Washington, D.C.


                         OPINION

BYBEE, Circuit Judge:

   In National Cable & Telecommunications Ass’n v. Brand X
Internet Services, the Supreme Court instructed federal courts
to defer to reasonable agency interpretations of ambiguous
statutes, even when those interpretations conflict with the
prior holding of a federal circuit court. 545 U.S. 967, 982-83
(2005). That is the situation we confront here. In Acosta v.
12588            GARFIAS-RODRIGUEZ v. HOLDER
Gonzales, 439 F.3d 550, 553-56 (9th Cir. 2006), we held that
aliens who are inadmissible under § 212(a)(9)(C)(i)(I) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(9)(C)(i)(I), are eligible for adjustment of status
under INA § 245(i), 8 U.S.C. § 1255(i), in spite of the latter
section’s requirement of admissibility. A year later, the Board
of Immigration Appeals (“BIA”) decided that such aliens are
not eligible to apply for adjustment of status under § 245(i) in
In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007). In this
case, we must decide whether to defer to the agency’s inter-
pretation of the INA and overrule Acosta and, if so, whether
the agency’s interpretation may be applied to Garfias retroac-
tively.

   We conclude that we must defer to the BIA’s decision, and
we hold that the BIA’s decision may be applied retroactively
to Garfias. We thus deny his petition for review.

        I.   FACTS AND PROCEDURAL HISTORY

   Francisco Javier Garfias-Rodriguez (“Garfias”) is a native
and citizen of Mexico. He unlawfully entered the United
States in 1996 and briefly departed twice, first to visit his ail-
ing mother in 1999 and then to attend her funeral in 2001. He
reentered the United States without permission both times. In
April 2001, Garfias’s then-current employer filed an applica-
tion for labor certification with the Oregon Employment
Department on his behalf but later withdrew the application
after he ceased working for that employer. Garfias married his
wife Nancy, a United States citizen, in April 2002. He applied
to adjust his status to that of a lawful permanent resident in
June of 2002, paying a total of $1305 in fees. In 2004, United
States Citizenship and Immigration Services issued Garfias a
Notice to Appear (“NTA”) charging him with removability
under INA § 212(a)(6)(A)(i), as “[a]n alien present in the
United States without being admitted or paroled,” and
§ 212(a)(9)(C)(i), as an alien who has been “unlawfully pres-
                      GARFIAS-RODRIGUEZ v. HOLDER                        12589
ent in the United States for an aggregate period” of more than
one year and reentered without permission.

   In proceedings before an immigration judge (“IJ”), Garfias
conceded removability on both grounds charged in the NTA.
He requested relief in the form of adjustment of status and, in
the alternative, voluntary departure. In July 2004, the IJ
denied Garfias’s application for status adjustment, holding
that Garfias was inadmissible under INA § 212 and thus ineli-
gible for adjustment under § 245(i). In a per curiam decision
in March 2006, the BIA sustained Garfias’s appeal. The BIA
noted that “the Ninth Circuit, in whose jurisdiction this pro-
ceeding arises, held that an alien inadmissible under section
212(a)(9)(C)(i) of the Act could apply for adjustment of status
under section 245(i) in conjunction with a request that the
Attorney General retroactively consent to his reapplying for
admission,” and remanded the case to the IJ for reconsidera-
tion in light of those decisions. See Acosta, 439 F.3d at 556;
Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).

   On remand, Garfias renewed his application for adjustment
of status, but in November 2007 the IJ once again denied the
request for adjustment. The IJ found that Garfias could not
establish that his application was filed before § 245(i)’s expi-
ration date of April 30, 2001.1 The IJ reasoned that Garfias’s
application based on his marriage to a U.S. citizen was filed
after April 30, 2001, and he was not grandfathered in by his
application for a labor certification because there was no
proof the labor certification was “properly filed.” Garfias
again appealed to the BIA.

   The BIA dismissed his appeal in July 2009. It did not rule
  1
    Section 245(i) relief is only available to an alien physically present in
the United States “who is the beneficiary . . . of . . . a petition for classifi-
cation . . . filed . . . on or before April 30, 2001; or . . . an application for
a labor certification . . . filed pursuant to the regulations of the Secretary
of Labor on or before such date.” 8 U.S.C. § 1255(i)(1)(B).
12590               GARFIAS-RODRIGUEZ v. HOLDER
on the IJ’s grounds for denying the application. Instead, the
BIA noted that subsequent to the IJ’s decision, it had issued
In re Briones, 24 I. & N. Dec. at 371, which held that an alien
could not seek status adjustment under § 245(i) if he was inel-
igible for admission under § 212(a)(9)(C)(i)(I). The BIA then
explained that since this court had abrogated Perez-Gonzalez
under a Brand X theory, see Duran Gonzales v. Dep’t of
Homeland Sec. (Duran Gonzales I), 508 F.3d 1227, 1241-42
(9th Cir. 2007), the BIA could now apply the Briones rule to
cases arising in the Ninth Circuit. It therefore dismissed the
appeal, granted Garfias sixty days to voluntarily depart,
ordered removal in the event that he failed to depart, and
informed him that filing a petition for review would automati-
cally terminate the grant of voluntary departure.

   Garfias filed a petition for review with this court. He raised
three arguments: (1) that Briones is not entitled to Chevron2
deference, (2) that Briones should not be applied to his case
retroactively, and (3) that 8 C.F.R. § 1240.26(i), which termi-
nates any grant of voluntary departure upon the filing of a
petition for judicial review of a removal order, is an invalid
exercise of statutorily delegated power. A panel of this court
rejected his claims and denied the petition for review.
Garfias-Rodriguez v. Holder, 649 F.3d 942, 953 (9th Cir.
2011). We granted Garfias’s petition for rehearing en banc.
Garfias-Rodriguez v. Holder, 672 F.3d 1125 (9th Cir. 2012).
  2
    Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-44 (1984), held that courts must defer to a reasonable
agency interpretation of an ambiguity in a statute that the agency is
charged with administering. Chevron step one asks “whether Congress has
directly spoken to the precise question at issue”; step two asks whether the
agency’s interpretation is reasonable. Id.
                  GARFIAS-RODRIGUEZ v. HOLDER              12591
                II.   LEGAL BACKGROUND

A.   The Tension Between INA § 212(a)(9)(C) and § 245(i)

   [1] Congress enacted § 245(i) in 1994 to provide an ave-
nue for “aliens who entered without inspection but who have
access to a visa (typically an immigrant spouse of a citizen)
to legalize their status without leaving the country and incur-
ring a long and needless separation from their family.”
Ramirez-Canales v. Mukasey, 517 F.3d 904, 907-08 (6th Cir.
2008); see also Briones, 24 I. & N. Dec. at 359-60. However,
the Attorney General is permitted to adjust an applicant’s sta-
tus under this section only if “the alien is eligible to receive
an immigrant visa and is admissible to the United States for
permanent residence.” 8 U.S.C. § 1255(i)(2)(A).

   [2] When § 245(i) was first enacted, aliens present in the
United States who had entered without inspection were con-
sidered “deportable” aliens under former § 241(a)(1)(B) of the
INA. See Briones, 24 I. & N. Dec. at 362-63 (citing 8 U.S.C.
§ 1251(a)(1)(B) (1994)). Thus, that provision did not impli-
cate § 245(i)’s requirement that the alien be “admissible” to
the United States. However, in 1996, Congress enacted the
Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), which “recharacterized” as “inadmissible” aliens
who had previously been labeled “deportable” for entering the
country without inspection. Briones, 24 I. & N. Dec. at 363.
As a result, § 212 currently renders inadmissible “[a]ny alien
who . . . has been unlawfully present in the United States for
an aggregate period of more than 1 year, . . . and who enters
or attempts to reenter the United States without being admit-
ted.” 8 U.S.C. § 1182(a)(9)(C)(i)(I). IIRIRA did not, however,
address the effect of this change on the status adjustment pro-
vision of § 245(i).

   [3] In short, although § 245(i) ostensibly provides an ave-
nue for aliens eligible to receive a visa but living illegally in
the United States to adjust their status to that of a lawful per-
12592               GARFIAS-RODRIGUEZ v. HOLDER
manent resident, requirement of “admissibility” seems to viti-
ate that purpose for some illegal aliens in light of the
subsequent enactment of § 212(a)(9)(C). Congress has not
explained how to handle an alien who is inadmissible under
§ 212(a)(9)(C)(i)(I) but otherwise qualified for adjustment of
status under § 245(i).3

B.     The Ninth Circuit and the BIA Address the Tension

  1.    The Parting of the Ways

   In Perez-Gonzalez, we held that the inadmissibility provi-
sion of INA § 212(a)(9)(C)(i)(II)4 did not preclude status
adjustment under § 245(i). 379 F.3d at 792-95. We declined
to defer to a guidance memorandum issued by the Immigra-
tion and Naturalization Service (“INS”), which concluded that
status adjustment was unavailable to aliens inadmissible
under § 212(a)(9)(C)(i)(II), because interpretations in the “in-
formal format[ ]” of a guidance memorandum are not entitled
“to the rigorous deference owed formal agency interpretations
under Chevron.” Id. at 792-93. Applying a less deferential
form of review, we found that the memorandum’s interpreta-
tion conflicted with “[t]he regulations at 8 C.F.R. § 212.2,”
which “make the availability of adjustment of status to previ-
ously removed aliens explicit.” Id. at 793.5 Accordingly, we
concluded that “[i]n the absence of a more complete agency
  3
     Because the BIA did not address the issue of whether Garfias applied
for adjustment of status before § 245(i)’s expiration date, we will assume
without deciding that Garfias is otherwise qualified to apply for adjust-
ment of status under § 245(i).
   4
     Section 212(a)(9)(C)(i)(II) is the companion provision of the subsec-
tion at issue in this case, § 212(a)(9)(C)(i)(I). Subsection II makes inad-
missible any alien who has been ordered removed and enters or attempts
to reenter the United States illegally, and subsection I makes inadmissible
any alien who has accrued over a year of unlawful presence in the United
States. See 8 U.S.C. § 1182(a)(9)(C)(i). Thus, subsection II presents the
same conflict with § 245(i) as does subsection I.
   5
     8 C.F.R. § 212.2(e) specifies that applicants for adjustment of status
“must request permission to reapply for entry in conjunction with [their]
application[s] for adjustment of status.” We explained that “8 C.F.R.
§§ 212.2(e) and (i)(2) expressly permit applicants for adjustment of status
who have been previously removed or deported to apply for permission to
reapply from within this country.” Perez-Gonzalez, 379 F.3d at 793.
                 GARFIAS-RODRIGUEZ v. HOLDER              12593
elaboration of how its interpretation of § 212(a)(9) can be rec-
onciled with its own regulations, we must defer to the regula-
tions rather than to the informal guidance memorandum.” Id.
at 794. The panel denied rehearing, over the dissent of Judge
Gould. Perez-Gonzalez v. Gonzales, 403 F.3d 1116, 1117-20
(9th Cir. 2005) (Gould, J., dissenting) (dissenting from denial
of motion to reconsider denial of petition for panel rehearing).

   The BIA subsequently issued In re Torres-Garcia, 23 I. &
N. Dec. 866 (BIA 2006), accepting our invitation to provide
“a more complete agency elaboration,” Perez-Gonzalez, 379
F.3d at 794, of the conflict between these provisions of the
INA. The BIA concluded that “the Ninth Circuit’s analysis
regarding the availability of a retroactive waiver of the ground
of inadmissibility set forth at section 212(a)(9)(C)(i) contra-
dicts the language and purpose of the Act and appears to have
proceeded from an understandable, but ultimately incorrect,
assumption regarding the applicability of 8 C.F.R. § 212.2.”
Torres-Garcia, 23 I. & N. Dec. at 873. The BIA noted that 8
C.F.R. § 212.2 “was not promulgated to implement current
section 212(a)(9) of the Act,” but “implement[ed] statutory
provisions that were repealed by the IIRIRA.” Id. at 874-75.
It further noted that our decision in Perez-Gonzalez effec-
tively allowed § 245(i) to function as a means to “circumvent
the statutory 10-year limitation on section 212(a)(9)(C)(ii)
waivers” by allowing aliens to “simply reenter[ ] unlawfully
before requesting the waiver,” given that “it is the alien’s
unlawful reentry without admission that makes section
212(a)(9)(C)(i) applicable in the first place.” Id. at 876. The
BIA noted that under our reading of § 212, an alien could
obtain a “waiver nunc pro tunc even though such a waiver
would have been unavailable to him had he sought it prospec-
tively, thereby placing him in a better position by asking for-
giveness than he would have been in had he asked
permission.” Id.

  [4] Next, in Acosta v. Gonzales, 439 F.3d at 556, we
extended the reasoning of Perez-Gonzalez to INA
12594             GARFIAS-RODRIGUEZ v. HOLDER
§ 212(a)(9)(C)(i)(I)—the provision at issue in this case—and
held that aliens inadmissible under that section nonetheless
remained eligible for adjustment of status under § 245(i). We
emphasized that “Perez-Gonzalez appears to control the issue
. . . before us” and that “any attempt to distinguish the present
case from Perez-Gonzalez based on the different grounds of
inadmissibility involved would be unpersuasive.” Id. at 554.
We did not take note of the BIA’s contrary decision in
Torres-Garcia, which had been issued just one month earlier.

   [5] The following year, the BIA revisited the question we
answered in Acosta and again rejected our reasoning. Briones,
24 I. & N. Dec. 355. It explained that § 212(a)(9)(C)(i)(I)
applies only to aliens “who have departed the United States
after accruing an aggregate period of ‘unlawful presence’ of
more than 1 year and who thereafter entered or attempted to
reenter the United States unlawfully.” Id. at 365-66. The BIA
observed that § 212(a)(9)(C)(i)(I) could therefore trump
§ 245(i) without rendering the latter provision superfluous. Id.
It noted that “in every other case where Congress has
extended eligibility for adjustment of status to inadmissible
aliens . . . it has done so unambiguously, either by negating
certain grounds of inadmissibility outright or by providing for
discretionary waivers of inadmissibility, or both.” Id. at 367.
Accordingly, the BIA decided that despite our decision in
Acosta, there was “little merit in the . . . argument . . . that it
would be incompatible with the remedial purpose of section
245(i) to make adjustment of status unavailable to . . . aliens
[inadmissible under section 212].” Id. at 370. The BIA con-
cluded that “aliens who are inadmissible under section
212(a)(9)(C)(i)(I) of the [INA] cannot qualify for section
245(i) adjustment, absent a waiver of inadmissibility.” Id. at
371. Briones, however, explicitly declined to decide whether
to apply its interpretation to cases arising in the jurisdiction of
the Ninth and Tenth Circuits, id. at 371 n.9, which had both
reached contrary conclusions. See Padilla-Caldera v. Gon-
zales, 453 F.3d 1237 (10th Cir. 2005).
                 GARFIAS-RODRIGUEZ v. HOLDER              12595
  2.   The Reconciliation

   That same year, we began the process of reevaluating our
prior decisions in light of the BIA’s decisions in Torres-
Garcia and Briones. First, we addressed the effect of Torres-
Garcia in Duran Gonzales I, 508 F.3d 1227. Applying the
framework established by Chevron and Brand X, we deferred
to the BIA’s interpretation of § 212(a)(9)(c) in Torres-Garcia,
and overruled Perez-Gonzalez. Id. at 1242. We found that in
Perez-Gonzalez we had determined that the relevant sections
of the INA were ambiguous and that the BIA had not, at that
time, issued a controlling decision that resolved this ambigu-
ity. Id. at 1237-38; see Brand X, 545 U.S. at 982. We con-
cluded that the BIA’s interpretation of § 212(a)(9)(C)(i)(II) in
Torres-Garcia was “clearly reasonable and is therefore enti-
tled to Chevron deference under Brand X.” Duran Gonzales
I, 508 F.3d at 1242. Accordingly, we concluded that “we are
bound by the BIA’s interpretation of the applicable statutes in
In re Torres-Garcia, even though that interpretation differs
from our prior interpretation in Perez-Gonzalez.” Id.

   In 2010, the BIA issued its most recent published opinion
on this subject. In re Diaz and Lopez rejected the alien’s argu-
ment that Briones should not apply in cases arising in the
jurisdiction of the Ninth Circuit due to our decision in Acosta.
25 I. & N. Dec. 188, 190-91 (BIA 2010). The BIA noted that
the decision in Acosta was “constrained by” our previous
decision in Perez-Gonzalez, which had subsequently been
overruled in Duran Gonzales I. Id. at 190. Citing Brand X, the
BIA therefore concluded that “[n]either the Immigration
Judge nor the Board remains bound by the Ninth Circuit’s
decision in Acosta in light of our subsequently issued decision
in Matter of Briones and the Ninth Circuit’s decision in
[Duran] Gonzales [I] to overrule Perez-Gonzalez.” Id.

  With that background, we now turn to the case before us.
12596               GARFIAS-RODRIGUEZ v. HOLDER
                         III.   DISCUSSION

A.     Whether Briones Is Entitled to Chevron Deference

   We must first determine whether aliens who are inadmissi-
ble under INA § 212(a)(9)(C)(i)(I) may nonetheless apply for
adjustment of status under § 245(i). Deferring to the BIA’s
decision in Briones, we hold that they may not.6

  1.    Statutory Ambiguity

   We begin by asking whether Congress has “spoken to the
precise question at issue.” Chevron, 467 U.S. at 842. Here,
Garfias urges us to reaffirm our holding in Acosta, where we
interpreted the ambiguity between § 212(a)(9)(C)(i)(I) and
§ 245(i) in the absence of an authoritative interpretation by
the BIA. However, we see no basis for distinguishing
§ 212(a)(9)(C)(i)(I) from § 212(a)(9)(C)(i)(II) or for departing
from the reasoning of Duran Gonzales I. In Brand X, the
Supreme Court held that “[a] court’s prior judicial construc-
tion of a statute trumps an agency construction otherwise enti-
tled to Chevron deference only if the prior court decision
holds that its construction follows from the unambiguous
terms of the statute and thus leaves no room for agency dis-
cretion.” 545 U.S. at 982; see Duran Gonzales I, 508 F.3d at
1235-36. We believe that Acosta was not such a decision.

   We wrote in Acosta that “[t]he statutes involved do not
clearly indicate whether the inadmissibility provision or the
penalty-fee adjustment of status provision should take prece-
dence,” and reached our conclusion by relying heavily on our
  6
    We have jurisdiction under 8 U.S.C. § 1252(a)(5). We review de novo
purely legal questions concerning the meaning of the immigration laws.
See Altamirano v. Gonzales, 427 F.3d 586, 591 (9th Cir. 2005). We defer
to the BIA’s interpretation and application of immigration laws unless its
interpretation is “contrary to the plain and sensible meaning of the law at
issue.” Poblete Mendoza v. Holder, 606 F.3d 1137, 1140 (9th Cir. 2010).
                 GARFIAS-RODRIGUEZ v. HOLDER               12597
earlier Perez-Gonzalez decision. Acosta, 439 F.3d at 553-55.
Other circuits have also noted that the tension between
§ 212(a)(9)(C) and § 245(i) creates a statutory ambiguity that
cannot be resolved conclusively by resort to the text. See, e.g.,
Cheruku v. Att’y Gen., 662 F.3d 198, 204 (3d Cir. 2011);
Renteria-Ledesma v. Holder, 615 F.3d 903, 908 (8th Cir.
2010) (“A literal reading of [8 U.S.C.] § 1255(i) would render
the adjustment of status provision a virtual nullity, because
aliens who ‘entered the United States without inspection,’ as
required by § 1255(i)(1)(A)(i), generally are not ‘admissible,’
as required by § 1255(i)(2)(A).”); Ramirez v. Holder, 609
F.3d 331, 335-36 (4th Cir. 2010); Herrera-Castillo v. Holder,
573 F.3d 1004, 1007-08 (10th Cir. 2009); Mora v. Mukasey,
550 F.3d 231, 237-38 (2d Cir. 2008); Ramirez-Canales, 517
F.3d at 907-08; see also Lemus-Losa v. Holder, 576 F.3d 752,
760 (7th Cir. 2009) (“If the question before us were . . . the
relation between [8 U.S.C. § 1182(a)(9)](C)(i)(I) and
§ 1255(i) . . . we would agree that there is sufficient ambigu-
ity in these provisions to require Chevron deference, and we
would find that the BIA has drawn a rational line.”). The BIA
has also acknowledged this ambiguity, noting that “the plain
language of the statute seems to make ‘entry without inspec-
tion’ both a qualifying and a disqualifying condition for
adjustment of status.” Briones, 24 I. & N. Dec. at 362.

   We previously refused to give deference to the BIA’s inter-
pretation only because it came in the form of a guidance
memorandum, which we held was “not entitled to the same
rigorous deference due agency regulations.” Acosta, 439 F.3d
at 554. In deciding Briones, however, the BIA has issued a
formal agency interpretation of the INA and provided a thor-
oughly developed opinion that disagrees with our interpreta-
tion in Acosta. Additionally, our decision in Acosta relied
heavily on our reasoning in Perez-Gonzalez, which we have
since abrogated in light of the BIA’s decision in Torres-
Garcia. See Duran Gonzales I, 508 F.3d at 1242. Because
Acosta did not “unambiguously foreclose[ ]” the BIA’s
authority    to    interpret     the    interplay    between
12598            GARFIAS-RODRIGUEZ v. HOLDER
§ 212(a)(9)(C)(i)(I) and § 245(i), the BIA “remains the
authoritative interpreter (within the limits of reason)” of these
provisions. Brand X, 545 U.S. at 983.

  2.    The Reasonableness of the Agency’s Interpretation

   We now turn to whether the BIA’s interpretation of the
statutory framework is reasonable. Every circuit to have
addressed the issue has concluded that Briones is a reasonable
interpretation of § 212(a)(9)(C)(i)(I) and § 245(i). See
Renteria-Ledesma, 615 F.3d at 908; Ramirez, 609 F.3d at
337; Mora, 550 F.3d at 239; Ramirez-Canales, 517 F.3d at
910. We agree with our sister circuits and hold that the BIA’s
interpretation is reasonable.

   The BIA noted that the current ambiguity between
§ 212(a)(9)(C) and § 245(i) was a consequence of a switch
from the use of the term “deportable” to “inadmissible” to
describe aliens who entered without inspection. See Briones,
24 I. & N. Dec. at 363. The BIA observed that Congress has
generally limited adjustment of status to those aliens who
have been “inspected and admitted” into the United States. Id.
at 359. Section 245(i) authorized a “limited departure from
the general ‘inspection and admission’ requirement.” Id. at
360. Although Congress intended the requirement to discour-
age aliens from moving to the United States before becoming
eligible for permanent residence, Congress found that the “in-
spected and admitted” policy forced relatives of permanent
residents to leave the country just so they could apply for an
immigrant visa at a U.S. embassy or consulate. Id. at 359-60.

   The BIA then resolved the textual ambiguity by explaining
that “the classes of aliens described in sections 245(i)(1)(A)
and 212(a)(9)(C)(i)(I) are [not] coextensive.” Id. at 365. That
is, § 245(i) applies to some aliens who are physically present
in the United States and entered without inspection, but
§ 212(a)(9)(C)(i)(I) precludes its application to those aliens
who entered the country without inspection, stayed for at least
                 GARFIAS-RODRIGUEZ v. HOLDER              12599
one year, departed the country, and then “enter[ed] or attemp-
t[ed] to reenter the United States without being admitted.” 8
U.S.C. § 1182(a)(9)(C)(i). The BIA supported its interpreta-
tion of § 212(a)(9)(C)(i)(I) by pointing out that subsection
(a)(9)(C) is entitled “ ‘Aliens unlawfully present after previ-
ous immigration violations.’ ” Briones, 24 I. & N. Dec. at 366
(quoting 8 U.S.C. § 1182(a)(9)(C)). The BIA emphasized that
“[i]t is the entry or attempted entry of an alien subsequent to
his accrual of more than 1 year of unlawful presence that trig-
gers inadmissibility under section 212(a)(9)(C)(i)(I), and not
mere unlawful presence for more than 1 year.” Id.

   The latter class of aliens—whom the BIA refers to as
“recidivists”—are not eligible for adjustment of status under
§ 245(i) because otherwise § 245(i) status adjustment would
be “available to a whole new class of aliens who had never
been eligible for it.” Id. at 365-67. Additionally, the BIA
deemed it “of crucial importance” to its interpretation “that in
every other case where Congress has extended eligibility for
adjustment of status to inadmissible aliens . . . it has done so
unambiguously, either by negating certain grounds of inad-
missibility outright or by providing for discretionary waivers
of inadmissibility, or both.” Id. at 367.

   [6] This is a permissible reading of the statute. In light of
the BIA’s reasoned opinion, we hold that Briones is entitled
to Chevron deference. See Brand X, 545 U.S. at 982. We con-
clude that aliens who are inadmissible under
§ 212(a)(9)(C)(i)(I) are not eligible for adjustment of status
under § 245(i), and overrule Acosta to the extent it holds oth-
erwise.

B.   Retroactivity of the Briones Rule

   [7] Garfias contends that even if Briones controls the inter-
pretive question in this case, the BIA should not have applied
its conclusion to his case. In general, an agency is free to
implement new administrative policies through adjudicative
12600                GARFIAS-RODRIGUEZ v. HOLDER
procedures instead of rulemaking. See SEC v. Chenery Corp.
(Chenery II), 332 U.S. 194, 201-03 (1947). We have added
that an agency “may act through adjudication to clarify an
uncertain area of the law, so long as the retroactive impact of
the clarification is not excessive or unwarranted.” Montgom-
ery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982).

   However, the Brand X twist here complicates the situation
somewhat: because we have determined that our prior deci-
sion in Acosta must be overruled in light of the BIA’s deci-
sion in Briones, it is not clear whether we, as a judicial
decisionmaker, have changed the law, or whether it is the
agency that has changed the law.7 Thus, there are two possible
answers to the retroactivity question: the analysis in Chevron
Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971), which sets
forth retroactivity factors to consider when a court changes
the law, and the Montgomery Ward test, 691 F.2d at 1333,
which sets forth retroactivity factors to consider when an
agency changes its law. Before turning to this question, we
consider whether the BIA should have the opportunity to
address the retroactivity question first, and whether a retroac-
tivity analysis is even required.

  1.    Exhaustion of Administrative Remedies

   To begin with, we consider whether to address this issue
for the first time on appeal. Garfias did not ask the BIA to
consider the retroactive application of its decision in the first
instance, although the second time his case was before the
Board, the government had raised the argument that the BIA
should follow Briones rather than Acosta.
  7
    We do not mean to say, as Judge Paez argues, that an agency can over-
rule a judicial decision or that the agency “changed the law of this circuit.”
Paez Dissent. Op. at 12654-55. We still retain ultimate authority to deter-
mine whether to defer to the agency’s interpretation. But when we do
defer to an agency’s interpretation of the law, it is not clear for purposes
of determining which retroactivity analysis applies whether we or the
agency effectively brought about the change in the law.
                 GARFIAS-RODRIGUEZ v. HOLDER              12601
   We have said that the exhaustion of administrative reme-
dies with respect to the retroactivity issue is not required,
except to invite the agency to correct its own error, if “record
development is unnecessary and the [agency] has no special
expertise to do the retroactivity analysis.” Chang v. United
States, 327 F.3d 911, 925 (9th Cir. 2003). Some courts have
concluded that retroactivity is a question of law, and no defer-
ence to the agency’s decision regarding retroactivity is appro-
priate, see, e.g., Microcomputer Tech. Inst. v. Riley, 139 F.3d
1044, 1051 (5th Cir. 1998); Mason Gen. Hosp. v. Sec’y of
Dep’t of Health & Human Servs., 809 F.2d 1220, 1224 (6th
Cir. 1987); Retail, Wholesale & Dep’t Store Union v. NLRB
(Retail Union), 466 F.2d 380, 390 (D.C. Cir. 1972), while
others have taken a more deferential approach to the agency’s
determination, NLRB v. W.L. Miller Co., 871 F.2d 745, 748
n.2 (8th Cir. 1989) (collecting cases); Yakima Valley Cablevi-
sion, Inc. v. FCC, 794 F.2d 737, 746 (D.C. Cir. 1986) (an
agency must explain its retroactivity decision before a court
can review it).

   We think that our position in Chang remains a sound one.
If there is no need to defer to an agency’s position on the
issue, there is no particular reason to remand to allow the
agency to consider in the first instance whether the rule
should be applied retroactively. Because no further record
development is necessary and the parties have briefed the
issue thoroughly before this court, we will consider the ques-
tion in the first instance.

  2.   Whether Any Retroactivity Analysis Is Required

   Next, we reject the government’s position that the BIA, as
the authoritative interpreter of an ambiguous statute, has
issued an interpretation in Briones that is comparable to “[a]
judicial construction of a statute” and “is an authoritative
statement of what the statute meant before as well as after the
decision of the case giving rise to that construction.” Rivers
v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994)
12602            GARFIAS-RODRIGUEZ v. HOLDER
(emphasis added). Although it is true that the BIA is the
authoritative arbiter of the meaning of the ambiguous provi-
sions of the INA at issue here, Brand X, 545 U.S. at 983, its
role is considerably more circumscribed than that of an Arti-
cle III court construing federal law (where no agency is enti-
tled to deference) or a state’s high court construing its own
law.

   That principle is vividly illustrated by the present situation.
In Acosta, we issued a binding interpretation of ambiguous
provisions of the INA, which was authoritative in this circuit
at least until the agency issued a reasonable interpretation to
the contrary. If the agency had never done so, Acosta would
still be good law. Cf. Brand X, 545 U.S. at 983. We construed
the statute pursuant to “[t]he judicial Power” vested in us over
“Cases . . . arising under . . . the Laws of the United States.”
U.S. Const. art. III, § 1, § 2, cl. 1. The BIA’s authority to say
what the law means, however, rests on the “executive Power”
vested in the President and his general charge to “take Care
that the Laws be faithfully executed.” U.S. Const. art. II, § 1,
§ 3. We defer to an agency not because it is better situated to
interpret statutes, but because we have determined that Con-
gress created gaps in the statutory scheme that cannot be filled
through interpretation alone, but require the exercise of poli-
cymaking judgment. See Chevron, 467 U.S. at 865 (“[A]n
agency to which Congress has delegated policy-making
responsibilities may, within the limits of that delegation, prop-
erly rely upon the incumbent administration’s views of wise
policy to inform its judgments.”). “Deference under Chevron
to an agency’s construction of a statute that it administers is
premised on the theory that a statute’s ambiguity constitutes
an implicit delegation from Congress to the agency to fill in
the statutory gaps.” FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 159 (2000); see Brand X, 545 U.S. at
980. Thus, the BIA’s interpretation of the INA is not a once-
and-for-always definition of what the statute means, but an act
of interpretation in light of its policymaking responsibilities
that may be reconsidered “on a continuing basis.” Chevron,
                    GARFIAS-RODRIGUEZ v. HOLDER                     12603
467 U.S. at 864. We defer to the agency out of separation-of-
powers concerns for the policymaking function of the execu-
tive because we are “not part of either political branch of the
Government.” Id. at 865. But, for similar reasons, the execu-
tive may not insist that we treat the BIA’s construction of the
INA as though it were a court of last resort exercising “judi-
cial Power”; it is not. Indeed, the BIA equivocated over
whether, post-Briones, it would acquiesce in our decision in
Acosta. See Briones, 24 I. & N. Dec. at 371 n.9 (“We need not
decide here whether to apply our holding in the Ninth and
Tenth Circuits.”).8

   We conclude that we must treat an agency decision that is
contrary to a ruling previously set forth by a court of appeals
and, as a result of Chevron and Brand X, prompts the court
of appeals to defer to the agency, as we would if the agency
had changed its own rules. To do otherwise would ignore the
effect of Chevron and treat the agency decision as though it
had issued from the court itself. To the extent our precedent
suggests the contrary, it is overruled in favor of the analysis
we adopt today. See, e.g., Duran Gonzales v. Dep’t of Home-
land Sec. (Duran Gonzales II), 659 F.3d 930, 939-41 (9th Cir.
2011); Morales-Izquierdo v. Dep’t of Homeland Sec., 600
F.3d 1076, 1087-91 (9th Cir. 2010).

   Chief Judge Kozinski, concurring in the judgment, asserts
that we need not conduct a retroactivity analysis at all. See
Kozinski Concur. Op. at 12626. However, he applies retroac-
tivity principles to conclude that retroactivity analysis does
  8
    Our back-and-forth with the BIA may illustrate the wisdom of remand-
ing to the BIA where the BIA has not previously interpreted the statute
and where we believe the statute is ambiguous. “Generally speaking, a
court of appeals should remand a case to an agency for decision of a mat-
ter that statutes place primarily in agency hands.” INS v. Orlando Ventura,
537 U.S. 12, 16 (2002) (per curiam); see Velazquez-Herrera v. Gonzales,
466 F.3d 781 (9th Cir. 2006) (per curiam) (remanding to the BIA to fill
in a statutory gap). We anticipate that doing so will, in most situations,
avoid the Brand X problem posed in this case.
12604                GARFIAS-RODRIGUEZ v. HOLDER
not apply, effectively resolving the retroactivity question
against Garfias.9 Id. at 12626-28. We disagree with this
approach. It conflates the result of a retroactivity analysis with
the process of conducting it. We will perform the retroactivity
analysis directly instead of applying the same principles to
conclude that the analysis does not apply. See discussion infra
pp. 12612-15.

  3.    Which Retroactivity Test Applies: Chevron Oil or
        Montgomery Ward

   We now turn to the question of the appropriate test to apply
to determine if Briones applies to Garfias retroactively. Chev-
ron Oil Co. v. Huson addresses whether a rule changed by a
court should be applied retroactively. 404 U.S. at 106-07.10
   9
     Chief Judge Kozinski considers both Garfias’s reliance interests and
whether Briones represents a change in the law or merely settles it, ulti-
mately coming to many of the same conclusions that we do. See Kozinski
Concur. Op. at 12627 (concluding that remaining in the United States ille-
gally is not a valid reliance interest because “Garfias is not entitled to con-
tinue defying this country’s immigration laws”); id. at 12628 (concluding
that filing an application for adjustment of status did not qualify as a reli-
ance interest because Garfias applied before Acosta was issued); see also
id. at 12626-27 (“Garfias can’t point to any . . . action . . . to which today’s
holding attaches new legal consequences. Nor can [Garfias] point to any
settled law that today’s holding unsettles by imposing an additional burden
on his past conduct.”) (internal citations and quotation marks omitted); id.
at 12628 (“At the time [Garfias] applied for adjustment of status, there
was no law resolving the statutory ambiguity at issue here in his favor . . .
[and] the obvious tension between sections 245(i) and 212(a)(9) meant
that Garfias could have had no assurance that any subsequent interpreta-
tion of their interplay would be in his favor.”) (internal quotation marks
omitted); id. at 12629 (“Briones . . . settled the law”).
   10
      Chevron Oil articulated three factors to consider in making this deter-
mination: (1) whether the decision “establish[es] a new principle of law,
either by overruling clear past precedent on which litigants may have
relied, or by deciding an issue of first impression whose resolution was not
clearly foreshadowed”; (2) a weighing of “the merits and demerits in each
case by looking to the prior history of the rule in question, its purpose and
effect, and whether retrospective operation will further or retard its opera-
                    GARFIAS-RODRIGUEZ v. HOLDER                    12605
Since Chevron Oil was decided, the Supreme Court has
strictly limited its application, see Harper v. Va. Dep’t of Tax-
ation, 509 U.S. 86, 95-96 (1993), and at least one court has
held that Chevron Oil has been overruled altogether, see
United Food & Commercial Workers Int’l Union, Local No.
150-A v. NLRB, 1 F.3d 24, 35 (D.C. Cir. 1993); see also
Nunez-Reyes v. Holder, 646 F.3d 684, 691-92 (9th Cir. 2011)
(en banc) (discussing these developments). The Supreme
Court has emphasized that retroactive application is the pre-
sumptive norm, and implied that any exceptions to this rule
must be narrow. Harper, 509 U.S. at 95-96. It has also
emphasized that we are not to perform a retroactivity analysis
on a case-by-case basis, but that we must decide whether a
rule should be retroactive (or not) as applied to all cases cur-
rently pending. Id. at 96-97.

   Last year, we affirmed the continuing validity of the Chev-
ron Oil rule in this circuit. Nunez-Reyes, 646 F.3d at 692 (“As
a circuit court, even if recent Supreme Court jurisprudence
has perhaps called into question the continuing viability of its
precedent, we are bound to follow a controlling Supreme
Court precedent until it is explicitly overruled by that Court.
We therefore remain bound by Chevron Oil.” (citations omit-
ted) (internal quotation marks omitted)); see also id. at 698
(Ikuta, J., concurring in part and dissenting in part)
(“Although the reasons for severely limiting non-retroactive
decisionmaking are clearly set out in Harper, the Court did
not expressly overrule Chevron Oil. We therefore must con-
tinue to consider Chevron Oil where we are announcing a new
rule of law for the first time and the parties have fairly raised
the issue.” Id. (footnote omitted) (citation omitted)). Thus,

tion”; and (3) “the inequity imposed by retroactive application.” 404 U.S.
at 106-07 (citation omitted) (internal quotation marks omitted). In prac-
tice, we see very little substantive difference between these factors and
those of Montgomery Ward. Cf. Dist. Lodge 64, Int’l Ass’n of Machinists
& Aerospace Workers v. NLRB, 949 F.2d 441, 447 (D.C. Cir. 1991); Dole
v. E. Penn Mfg. Co., 894 F.2d 640, 647 (3d Cir. 1990).
12606                GARFIAS-RODRIGUEZ v. HOLDER
where the party has fairly raised the issue we “apply the three-
pronged test outlined in Chevron Oil (1) in a civil case; (2)
when we announce a new rule of law, as distinct from apply-
ing a new rule that we or the Supreme Court previously
announced; (3) and when the new rule does not concern our
jurisdiction.” Id. at 691 (majority opinion).

   For the reasons we explained in the previous section, how-
ever, we do not think the Chevron Oil test is well adapted to
the Brand X situation. We are not announcing a new rule of
law here because we have changed our mind about the cor-
rectness of our prior rule or because we have been corrected
by a higher court. Rather we are approving and applying a
new rule that the BIA announced in Briones and to which we
must defer under the Brand X framework.11 As we have noted,
the BIA’s decision fills a statutory gap and is an exercise of
its policymaking function. Chevron Oil, as a framework for
deciding when to apply a change in a court’s decision retroac-
tively, is, as a purely threshold matter, not the appropriate
framework.

   We believe Montgomery Ward is the better fit for this situa-
tion. Montgomery Ward addresses the situation when a “new
administrative policy [is] announced and implemented
through adjudication.” 691 F.2d at 1328 (citing Chenery II,
332 U.S. at 202). In such a case, “the agency may act through
adjudication to clarify an uncertain area of the law, so long as
the retroactive impact of the clarification is not excessive or
unwarranted.” Id. We explained that although the agency was
free to change or modify its position, the agency’s interest in
doing so must be “balanc[ed] [against] a regulated party’s
interest in being able to rely on the terms of a rule as it is writ-
ten.” Id. at 1333. To implement this balancing test, we
  11
    As Judge Gould observes, although the BIA may have announced the
rule, it “does not become binding in this circuit until we defer to that inter-
pretation.” Gould Concur. Op. at 12633.
                 GARFIAS-RODRIGUEZ v. HOLDER              12607
adopted the framework set forth by the D.C. Circuit in Retail
Union:

    (1) whether the particular case is one of first impres-
    sion, (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.

Id. at 1333 (quoting Retail Union, 466 F.2d at 390).

   Although the five-factor Montgomery Ward test was devel-
oped in the context of an agency overturning its own rule, it
has also been applied when court decisions formed part of the
background. See, e.g., Miguel-Miguel v. Gonzales, 500 F.3d
941, 951-53 (9th Cir. 2007) (noting that “both the BIA and
this court” had adopted the rule at issue before the BIA
decided to exercise its statutory discretion to change it); ARA
Servs., Inc. v. NLRB, 71 F.3d 129, 135 (4th Cir. 1995) (noting
that “the rule proposed by the Board represents an abrupt
break with well-settled policy” because it “purports to over-
turn numerous court precedents and Board decisions” (inter-
nal quotation marks omitted)); Local 900, Int’l Union of Elec.,
Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1195 (D.C.
Cir. 1984) (“Given the confusion in the Board’s and courts’
decisions over the years, the new rule cannot be called an
abrupt break with a well-settled policy . . . .”). Although none
of these cases actually analyzed the effect of a prior court
decision on the Montgomery Ward framework, they indicate
that the test is flexible enough to account for both agency and
court precedent when considering the relevant legal back-
ground.
12608               GARFIAS-RODRIGUEZ v. HOLDER
   The Montgomery Ward test is more flexible than Chevron
Oil, and allows us to take into account the intricacies of a
Brand X problem, which are typically absent in a case where
we have overruled our own decisions, as in Nunez-Reyes.
Although Montgomery Ward involved an agency amending or
overturning its own precedent and Brand X involved an
agency disagreeing with a court’s prior decision, the consider-
ations in both situations are similar. When an agency con-
sciously overrules or otherwise alters its own rule or
regulation, we presume that it does so as an exercise of its
judgment. Similarly, when an agency expressly considers and
openly departs from a circuit court decision, we must presume
that the agency has considered the court’s reading of the stat-
ute in connection with the policies of the administration and
has consciously disagreed with the court as a matter of its
policymaking function. See, e.g., Torres-Garcia, 23 I. & N.
Dec. at 873 (“[W]e believe the Ninth Circuit’s analysis
regarding the availability of a retroactive waiver of the ground
of inadmissibility set forth at section 212(a)(9)(C)(i) contra-
dicts the language and purpose of the Act . . . .”).

   Importantly, because Chevron and Brand X are grounded in
the deference we owe to agency policymaking, neither the
presumption in favor of retroactive application nor the prohi-
bition on considering retroactivity on a case-by-case basis
applies.12 Our concerns sound in equity. See Chenery II, 332
U.S. at 203 (“[R]etroactivity must be balanced against the
mischief of producing a result which is contrary to a statutory
design or to legal and equitable principles.”). Both the pre-
sumption in favor of retroactive application, and the rule that
a retroactivity analysis is not to be performed on a case-by-
  12
     Judge Paez argues that because we are an Article III court we must
follow Article III principles, which prohibit deciding retroactivity on a
case-by-case basis. See Paez Dissent Op. at 12654-55, 12656-59. As we
have explained, and as Montgomery Ward illustrates, Article III principles
are not always applicable to agency decisions and different concerns are
at stake when we overrule a prior decision based on our duty to defer to
a subsequent agency decision.
                 GARFIAS-RODRIGUEZ v. HOLDER               12609
case basis with regard to judicial adjudications stem from the
Supreme Court’s directive in Harper “prohibit[ing] the erec-
tion of selective temporal barriers to the application of federal
law in noncriminal cases.” 509 U.S. at 97. As the Court
explained,

    [w]hen this Court applies a rule of federal law to the
    parties before it, that rule is the controlling interpre-
    tation of federal law and must be given full retroac-
    tive effect in all cases still open on direct review and
    as to all events, regardless of whether such events
    predate or postdate our announcement of the rule.

Id.; see James B. Beam Distilling Co. v. Georgia, 501 U.S.
529, 540-43 (1991) (plurality opinion).

   Although we have not previously considered whether Har-
per applies with equal force to an agency’s creation of new
law through adjudication, the other circuits to consider this
issue have concluded that it does not. See, e.g., ARA Servs.,
71 F.3d at 135 n.3 (“[T]he fact that Board adjudication has
long existed in the interstices of retroactivity law argues in
favor of a case-by-case approach to such rulings, rather than
an attempt to fit them within one of the above global retroac-
tivity principles.”); Laborers’ Int’l Union v. Foster Wheeler
Corp., 26 F.3d 375, 387 n.8 (3d Cir. 1994) (concluding that
the rationales supporting the retroactivity of judicial decisions
“do not apply analogously to administrative agency adjudica-
tions”); Dist. Lodge 64, Int’l Ass’n of Machinists & Aero-
space Workers v. NLRB, 949 F.2d 441, 447 (D.C. Cir. 1991)
(“These Article III grounds are inapplicable to administrative
adjudications, so Beam does not clearly foreclose selective
retroactivity here.”).

   In every case in which we have applied the Montgomery
Ward test, we have done so on a case-by-case basis, for exam-
ple, by analyzing whether a petitioner actually relied on a past
rule, or by concluding that retroactivity as applied is imper-
12610            GARFIAS-RODRIGUEZ v. HOLDER
missible. See Miguel-Miguel, 500 F.3d at 953 (“[B]ecause the
Montgomery Ward analysis tilts decidedly in Miguel’s favor,
we hold that retroactive application of the [new] test to his
case was impermissible.” (emphasis added)); Chang v. United
States, 327 F.3d 911, 929 (9th Cir. 2003) (“[A]fter applying
the Montgomery Ward factors, we conclude that the applica-
tion of the INS’s intended change . . . is impermissibly retro-
active as applied to Appellants.” (emphasis added)); Great W.
Bank v. Office of Thrift Supervision, 916 F.2d 1421, 1432 (9th
Cir. 1990) (concluding that the bank in that case could not
show justifiable reliance); Oil, Chem. & Atomic Workers Int’l
Union, Local 1-547 v. NLRB, 842 F.2d 1141, 1145 (9th Cir.
1988) (finding a “significant” burden would be imposed on
that litigant by retroactive application of the new rule); Mont-
gomery Ward, 691 F.2d at 1334 (concluding that the new
rule’s retroactive impact would place an “unfair burden” on
the litigant department store as compared to its similarly situ-
ated competitors). In light of this consensus, the absence of
any guidance from the Supreme Court, and our conclusion
that agency decisions are not analogous to court decisions, we
see no need to reevaluate the Montgomery Ward case-by-case
test after Harper.

   Therefore, we hold that when we overturn our own prece-
dent following a contrary statutory interpretation by an
agency authorized under Brand X, we analyze whether the
agency’s statutory interpretation (to which we defer) applies
retroactively under the test we adopted in Montgomery Ward,
if the issue is fairly raised by the parties.

  4.    Applying the Test to Garfias’s Case

   [8] Applying this test to the case before us, we conclude
that Garfias cannot avoid the retroactive effect of Briones on
his case.

   The first factor of the Montgomery Ward test—whether the
issue is one of first impression—was developed in a very dif-
                 GARFIAS-RODRIGUEZ v. HOLDER               12611
ferent context and may not be suited to our situation. Retail
Union, from which this factor was adopted, involved a dispute
before the National Labor Relations Board (“NLRB”)
between a company and union workers with respect to work-
ers who had been on strike, were permanently replaced, and
were not offered the vacancies that opened when their
replacements departed. 466 F.2d at 383-84, 387. Just before
the NLRB’s decision in Retail Union, another union had suc-
ceeded in convincing the Board to overturn “a well settled
rule, enunciated and applied by the Board, that when an
employer permanently replaced an economic striker, he was
under no obligation thereafter to treat that striker other than
as a new applicant for employment.” Id. at 387. For the D.C.
Circuit, a case of “first impression” in this context meant
something different from what we ordinarily refer to as a
“case of first impression.” In the Retail Union context, a case
of “first impression” was a case in which one party had suc-
cessfully urged the NLRB to change its rule; a case of “sec-
ond impression” was any subsequent case brought before the
NLRB. The court was concerned that denying retroactive
effect in a case of first impression would “deny the benefits
of a change in the law to the very parties whose efforts were
largely responsible for bringing it about [and] might have
adverse effects on the incentive of litigants to advance new
theories or to challenge outworn doctrines.” Id. at 390. Addi-
tionally, to deny retroactive effect in a case of first impression
would effectively render the NLRB’s decision an advisory
opinion and raise serious questions as to whether the NLRB
had conducted a rulemaking in the guise of an adjudication.
See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 763-66
(1969) (plurality opinion); see also Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 221 (1988) (Scalia, J., concur-
ring). Instead, the court in Retail Union recognized that it was
in cases of “second impression” before the NLRB that con-
cerns might arise over “lack of notice [to the party against
whom the standard is to be applied retroactively] and the
[party’s] degree of reliance on former standards.” 466 F.2d at
12612            GARFIAS-RODRIGUEZ v. HOLDER
390 n.22; see also Miguel-Miguel, 500 F.3d at 951. In other
words, the court was more likely to apply the new rule in a
case of “first impression,” but less likely to apply it in a case
of “second impression.”

   Retail Union’s concerns over issues of “first impression”
and “second impression” arose in the litigation-intensive con-
text of the NLRB regulating labor disputes between private
parties. These concerns may not be as well suited to the con-
text of immigration law, where one of the parties will always
be the government. Moreover, the NLRB is virtually unique
among agencies in its “long-standing reliance on adjudica-
tion” and the common-law method. See Mark H. Grunewald,
The NLRB’s First Rulemaking: An Exercise in Pragmatism,
41 Duke L.J. 274, 278 (1991). The BIA, by contrast, relies on
a complex combination of regulations promulgated by the
Attorney General, its own interpretative decisions, and a
detailed framework of statutes to establish national immigra-
tion policy. As Garfias is not analogously situated to either
the union or the company in Retail Union because it was the
government who brought about the change in the law, this
Retail Union factor does not weigh in favor of either side. In
any event, any question of unfairness in applying a new rule
in cases of “first impression” or “second impression,” such as
surprise or detrimental reliance, is fully captured in the second
and third Montgomery Ward factors. See Montgomery Ward,
691 F.2d at 1333-34 (considering the first three factors
together as a single criterion).

   The second and the third factors are closely intertwined. If
a new rule “represents an abrupt departure from well estab-
lished 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. Retail Union, 466 F.2d at 390-91. We have
made it clear in this circuit that these two factors will favor
retroactivity if a party could reasonably have anticipated the
change in the law such that the new “requirement would not
                 GARFIAS-RODRIGUEZ v. HOLDER               12613
be a complete surprise.” Montgomery Ward, 691 F.2d at
1333-34; see also Great W. Bank, 916 F.2d at 1432. Decisions
from other circuits, especially the D.C. Circuit, support this
conclusion. In Clark-Cowlitz Joint Operating Agency v.
FERC, an en banc court determined that any reliance interest
was diminished because the previous rule was only in place
for six months, and the rule’s “presumably sunny prospects”
were “beclouded” by the possibility of being overturned on
appeal. 826 F.2d 1074, 1083-84 (D.C. Cir. 1987) (en banc).
In District Lodge 64, International Ass’n of Machinists &
Aerospace Workers v. NLRB, the D.C. Circuit held that multi-
ple changes in the agency’s position regarding the proper rule
precluded reliance because the final decision “was not an
extreme or unpredictable step,” much less a “radical transfor-
mation.” 949 F.2d at 447-48; see also Verizon Tel. Cos. v.
FCC, 269 F.3d 1098, 1111 (D.C. Cir. 2001) (reliance is
“something short of reasonable” ”[i]n light of the ongoing
legal challenges” to the old rule); Gen. Am. Transp. Corp. v.
ICC, 872 F.2d 1048, 1061 (D.C. Cir. 1989) (reliance is dis-
counted because the parties were aware of the precedent’s
vulnerability); Elec., Radio & Mach. Workers, 727 F.2d at
1195 (“Given the confusion in the Board’s and courts’ deci-
sions over the years, the new rule cannot be called an abrupt
break with a well-settled policy . . . .”).

   In this case, Garfias identifies only two specific reliance
interests: the payment of a $1000 penalty fee to file his appli-
cation, and the fact that, by filing for adjustment of status, he
admitted his unlawful presence in this country to the INS. We
conclude that neither of these factors favors Garfias because
he filed his application well in advance of any court or agency
decision holding that inadmissibility under § 212(a)(9)(C) is
not a barrier to status adjustment under § 245(i). Garfias first
filed his application in 2002, but Perez-Gonzalez and Acosta
were not decided until two and four years later, respectively.
Thus, Garfias clearly did not file his application in reliance on
Acosta, or even the analogous decision in Perez-Gonzalez.
12614            GARFIAS-RODRIGUEZ v. HOLDER
   The only window in which Garfias’s reliance interest based
on our previous rule might have been reasonable is the 21-
month period in 2006 and 2007 between the issuance of
Acosta and Briones. After Briones was issued, he was on
notice of Acosta’s vulnerability. At oral argument, Garfias
directed us to the costs he expended when renewing his appli-
cation for status adjustment in front of the IJ on remand,
which occurred during this period between Acosta and
Briones. For example, he had to renew his medical examina-
tion paperwork. However, there is nothing in the record which
discloses the cost to Garfias of such paperwork, and the pri-
mary reliance interest identified—the penalty filing fee—is
not implicated by the proceedings on remand.

   Nor can we give much weight to the fact that Garfias
admitted to his illegal presence within the United States by
filing for adjustment of status. Garfias’s situation is similar to
the petitioner in Fernandez-Vargas v. Gonzales, who “tipped
off the authorities to his illegal presence” by “fil[ing] an
application to adjust his status to that of lawful permanent res-
ident [under 8 U.S.C.] § 1255(i).” 548 U.S. 30, 35 (2006).
The Supreme Court rejected the notion that the expanded pro-
visions of IIRIRA should not be applied to him retroactively
for other reasons, id. at 38-42, but remarked that “retroactivity
law . . . is meant to avoid new burdens imposed on completed
acts, not all difficult choices occasioned by new law,” and the
petitioner only “complain[ed] of . . . the application of new
law to continuously illegal action within his control both
before and after the new law took effect,” id. at 46. The Court
then rejected the petitioner’s position that he had “a right to
continue illegal conduct indefinitely under the terms on which
it began.” Id. Nothing in Briones “impair[s] rights a party pos-
sessed when he acted, increase[s] a party’s liability for past
conduct, or impose[s] new duties with respect to transactions
already completed.” Landgraf v. USI Film Prods., 511 U.S.
244, 280 (1994). Applying this logic to Garfias’s situation, we
cannot help but conclude that we should not be overly solici-
                 GARFIAS-RODRIGUEZ v. HOLDER               12615
tous of Garfias’s interest in continuing to avoid the conse-
quences of his violation of our immigration laws.

   Moreover, the reasons that require us to defer to the BIA’s
decision in Briones also work against Garfias in this case.
From the outset, the tension between § 212(a)(9)(C) and
§ 245(i) was obvious. That ambiguity in the law—which
resulted in a six-year dialogue between the BIA and us—
should have given Garfias no assurances of his eligibility for
adjustment of status. Garfias might have had reason to be
encouraged after our generous reading of the statute in Perez-
Gonzalez and Acosta, but, even then, any reliance he placed
on our decisions held some risk because our decisions were
subject to revision by the BIA under Chevron and Brand X.
Given the specific facts and timing of this case, we conclude
that the second and third factors weigh against Garfias.

   We recognize that the fourth factor—the degree of burden
imposed on Garfias—strongly favors him. Although the relief
he applied for is ultimately discretionary, “ ‘[t]here is a clear
difference, for the purposes of retroactivity analysis, between
facing possible deportation and facing certain deportation.’ ”
Miguel-Miguel, 500 F.3d at 952 (quoting INS v. St. Cyr, 533
U.S. 289, 325 (2001)). Furthermore, “deportation alone is a
substantial burden that weighs against retroactive application
of an agency adjudication.” Id.

   The fifth factor—the statutory interest in applying a new
rule—points in favor of the government because non-
retroactivity impairs the uniformity of a statutory scheme, and
the importance of uniformity in immigration law is well
established. See, e.g., Cazarez-Gutierrez v. Ashcroft, 382 F.3d
905, 912 (9th Cir. 2004) (stressing “the strong interest in
national uniformity in the administration of immigration
laws”). The government’s interest in applying the new rule
retroactively may be heightened if the new rule follows from
the “plain language of the statute,” Great W. Bank, 916 F.2d
at 1432. Here it is clear from the multiple approaches taken
12616              GARFIAS-RODRIGUEZ v. HOLDER
to solving this problem that the answer is anything but
“plain.” The new rule does not follow from the plain language
of the statute because there is an inconsistency between two
statutory provisions. The statutory interest in applying the
new rule retroactively thus favors the government, but
because the government cannot claim that the new rule fol-
lows from the plain language of the statute, the factor only
leans in the government’s direction.

   [9] In sum, although we recognize the burden that retroac-
tivity imposes on Garfias, the second, third, and fifth factors
in this case outweigh that burden. When he filed his § 245(i)
application in 2002, Garfias had no reliance interest because
the law was not settled or well established. Garfias’s is not a
case “where the [agency] had confronted the problem before,
had established an explicit standard of conduct, and now
attempts to punish conformity to that standard under a new
standard subsequently adopted.” Retail Union, 466 F.2d at
391. We hold that the BIA properly applied the Briones rule
to Garfias.13

C.     Voluntary Departure Regulations

   Finally, Garfias challenges the automatic termination of the
BIA’s grant of voluntary departure. First, he argues that not-
withstanding 8 C.F.R. § 1240.26(i), which provides for the
automatic termination of a voluntary departure grant upon the
filing of a petition for review, we retain equitable authority to
stay the voluntary departure period. Second, he argues that the
Attorney General exceeded his authority when he promul-
gated the regulation pursuant to 8 U.S.C. § 1229c(e).

   [10] Section 1229c(e) authorizes the Attorney General “by
regulation [to] limit eligibility for voluntary departure under
this section for any class or classes of aliens.” 8 U.S.C.
  13
    We express no opinion whether other applicants may avoid the retro-
active effect of Briones.
                     GARFIAS-RODRIGUEZ v. HOLDER                      12617
§ 1229c(e).14 The regulation at issue provides, in relevant part,
that if an alien files a petition for review of a final removal
order, “any grant of voluntary departure shall terminate auto-
matically upon the filing of the petition or other judicial chal-
lenge.” 8 C.F.R. § 1240.26(i). However, “an alien granted the
privilege of voluntary departure . . . will not be deemed to
have departed under an order of removal if the alien departs
the United States no later than 30 days following the filing of
a petition for review.” Id. The rule was effective as of January
20, 2009. See Voluntary Departure: Effect of a Motion to
Reopen or Reconsider or a Petition for Review, 73 Fed. Reg.
76,927, 76,927 (Dec. 18, 2008).

  1.    Whether the Court’s Equitable Authority Survived the
        Regulation

   We first consider whether we have equitable authority to
stay Garfias’s voluntary departure period regardless of 8
C.F.R. § 1240.26(i). We conclude that we do not.

   The Supreme Court has explicitly reserved the question of
whether courts retain equitable jurisdiction to grant stays of
voluntary departure periods pending appellate review. See
Dada v. Mukasey, 554 U.S. 1, 10-11 (2008) (“[S]ome Federal
Courts of Appeals have found that they may stay voluntary
departure pending consideration of a petition for review on
the merits. This issue is not presented here, however, and we
   14
      Although § 1229c(e) further provides that “[n]o court may review any
regulation issued under this subsection,” a separate section in the INA pro-
vides that “[n]othing . . . in any other provision of this chapter (other than
this section) which limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of appeals in
accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). Two courts have
held that we may review legal and constitutional challenges to the regula-
tion without addressing § 1129c(e). See Hachem v. Holder, 656 F.3d 430,
438 (6th Cir. 2011); Patel v. Att’y Gen., 619 F.3d 230, 234 (3d Cir. 2010).
The government does not argue otherwise.
12618            GARFIAS-RODRIGUEZ v. HOLDER
leave its resolution for another day.” (citations omitted)). Pre-
viously, we held that we have equitable authority to stay a
petitioner’s voluntary departure period. El Himri v. Ashcroft,
344 F.3d 1261, 1262-63 (9th Cir. 2003). Our sister circuits,
except for the Fourth Circuit, agreed. See, e.g., Thapa v. Gon-
zales, 460 F.3d 323, 332 (2d Cir. 2006); Obale v. Att’y Gen.,
453 F.3d 151, 157 (3d Cir. 2006); Bocova v. Gonzales, 412
F.3d 257, 267-68 (1st Cir. 2005) (rejecting the government’s
argument as “sheer persiflage”); Lopez-Chavez v. Ashcroft,
383 F.3d 650, 654 (7th Cir. 2004); Rife v. Ashcroft, 374 F.3d
606, 615-16 (8th Cir. 2004); Nwakanma v. Ashcroft, 352 F.3d
325, 327 (6th Cir. 2003) (per curiam). But see Ngarurih v.
Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004) (“Having con-
cluded . . . that 8 U.S.C. § 1252(a)(2)(B) precludes judicial
review of the BIA’s order granting voluntary departure, we
cannot evade this statutory directive by resort to equity.”).

   [11] However, each of these decisions was reached before
the Attorney General promulgated 8 C.F.R. § 1240.26(i) in
2008. The First, Third, and Sixth Circuits have recently
acknowledged that this regulation resolves the question of
whether courts have authority to stay the voluntary departure
period pending review, since it provides for the automatic ter-
mination of that period. See Hachem, 656 F.3d at 438 (“Prior
to the promulgation of this regulation, there was a circuit split
on the issue of whether or not a court of appeals had the dis-
cretion to stay voluntary departure. The new regulation
resolved that issue.” (citations omitted)); Patel v. Att’y Gen.,
619 F.3d 230, 234 (3d Cir. 2010) (“Under the plain language
of 8 C.F.R. § 1240.26(i), we cannot stay a grant of voluntary
departure after a petitioner seeks judicial review because the
grant has already terminated.”); Hakim v. Holder, 611 F.3d
73, 78 (1st Cir. 2010) (“That rule amended the voluntary
departure regulation, which now, in part, provides that a grant
of voluntary departure on or after January 20, 2009, automati-
cally terminates with the filing of a petition for review.”).

  [12] We agree with our sister circuits. Garfias has given us
no reason to believe that courts possess equitable authority to
                 GARFIAS-RODRIGUEZ v. HOLDER              12619
stay voluntary departure periods contrary to the Attorney
General’s regulation. In § 1229c(e), Congress granted the
Attorney General the authority to control grants of voluntary
departure, and the Attorney General exercised this authority
by deciding that a grant of voluntary departure terminates
upon the filing of a petition for review. This regulation effec-
tively abrogates our contrary decision in El Himri. 344 F.3d
at 1262; see United States v. Oakland Cannabis Buyers’
Coop., 532 U.S. 483, 496 (2001) (noting that federal courts
have equitable discretion “unless a statute clearly provides
otherwise”). Accordingly, because the filing of a petition now
automatically terminates a petitioner’s grant of voluntary
departure, we conclude that, assuming that 8 C.F.R.
§ 1240.26(i) is valid, we have no authority to issue an equita-
ble stay of Garfias’s voluntary departure period.

  2.   Whether the Regulation Is Authorized by Statute

   [13] The Sixth Circuit has squarely held that 8 C.F.R.
§ 1240.26(i) is a reasonable interpretation of § 1229c(e),
Hachem, 656 F.3d at 438, and several other circuits have
applied the regulation or otherwise noted its existence, see,
e.g., Patel, 619 F.3d at 233-34 (noting that Obale, 453 F.3d
at 157, has been superseded by the regulation); see also
Kimani v. Holder, Nos. 11-1497, 11-2955 2012 WL 3590816
at *1 (7th Cir. Aug. 22, 2012); Qingyun Li v. Holder, 666
F.3d 147, 150 (4th Cir. 2011); Hakim, 611 F.3d at 78;
Sanchez-Velasco v. Holder, 593 F.3d 733, 737 (8th Cir.
2010). We join the Sixth Circuit in finding the regulation to
be a valid exercise of delegated power.

  In determining whether an agency regulation is ultra vires,
we apply the two-step Chevron analysis. See Mejia v. Gon-
zales, 499 F.3d 991, 996 (9th Cir. 2007). We hold that Con-
gress has unambiguously granted the Attorney General
authority to control the scope of voluntary departure grants in
12620                 GARFIAS-RODRIGUEZ v. HOLDER
§ 1229c and that he has reasonably exercised his authority in
promulgating the regulation.15

   Under § 1229c(b)(1), “[t]he Attorney General may permit
an alien voluntarily to depart the United States at the alien’s
own expense if . . . the immigration judge enters an order
granting voluntary departure in lieu of removal.” 8 U.S.C.
§ 1229c(b)(1) (emphasis added). This permissive language
affords the Attorney General discretion to decide whether to
permit voluntary departure after it has been granted by the
immigration judge.16 If the Attorney General makes a decision
not to permit voluntary departure he effectively terminates the
immigration judge’s previous grant. See Van Dinh v. Reno,
197 F.3d 427, 434 (10th Cir. 1999) (noting that “the Attorney
General’s discretion to permit voluntary departure under
§ 1229c(b) is specifically conditioned upon the entry of a sep-
arate order granting voluntary departure by an immigration
judge who must find four conditions to exist before the order
  15
      Judge Reinhardt claims that voluntary departure under § 1229c(b)(1)
“ha[s] not . . . been thought to involve the relinquishment of procedural
rights.” Reinhardt Dissent. Op. at 12642. But the important question is not
whether post-decisional relief has previously “been thought” to involve
relinquishment of procedural rights, but whether the statute permits it. We
conclude that it does.
   16
      In dissent, Judge Reinhardt characterizes the statute as simply granting
“the Attorney General—or, in practical terms, his delegees—discretion to
grant or deny voluntary departure at the completion of the immigration
proceeding.” Reinhardt Dissent. Op. at 12648 (emphasis added). Judge
Reinhardt treats § 1229c(b)(1) as if it read “the Attorney General shall
permit an alien voluntarily to depart . . . if the immigration judge enters
an order . . . .” Such a reading violates both the rules of grammar and the
statutory scheme. Compare 8 U.S.C. § 1158(b)(1) (the Attorney General
“may grant asylum” to qualified aliens), with 8 U.S.C. § 1154(b)(1) (the
Attorney General “shall, if . . . [the alien] is eligible . . . approve the peti-
tion” for a visa); see Spencer Enterprises, Inc. v. United States, 345 F.3d
683, 691 (9th Cir. 2003) (“[The language of § 1154(b)] is very distinct
from the discretionary language in the asylum context [§ 1158(b)(1)],
which allows the Attorney General to deny asylum even to those appli-
cants who meet the statutory eligibility requirements.”).
                 GARFIAS-RODRIGUEZ v. HOLDER              12621
may be granted” and that the Attorney General makes a “sub-
sequent decision to allow the alien to depart voluntarily pur-
suant to that order”); cf. Muigai v. U.S. INS, 682 F.2d 334,
336-37 (2d Cir. 1982) (“The grant or denial of voluntary
departure lies within the broad discretion of the Attorney
General and his delegates in the INS. It is permitted only in
meritorious cases and may be terminated by the Attorney
General upon a showing of abuse.” (citation omitted)). Since
Congress has also granted the Attorney General the general
power to “establish such regulations . . . as [he] determines to
be necessary for carrying out” his authority under the INA, 8
U.S.C. § 1103(g)(2), the Attorney General properly issued 8
C.F.R. § 1240.26(i) pursuant to his discretion to terminate
voluntary departure under 8 U.S.C. § 1229c(b)(1) and his
authority under § 1103(g)(2) to issue regulations he deems
necessary. See Hachem, 656 F.3d at 438 (“The statute makes
clear that the grant of voluntarily departure is a discretionary
matter. No alien is automatically entitled to such a grant. The
Attorney General has reasonably created rules by which this
discretion should be governed, just as the statute empowered
him to do.”).

   Moreover, § 1229c(e), provides additional support for 8
C.F.R. § 1240.26(i). Section 1229c(e) expressly authorizes the
Attorney General “by regulation [to] limit eligibility for vol-
untary departure under [§ 1229c] for any class or classes of
aliens.” 8 U.S.C. § 1229c(e) (emphasis added). This section
gives the Attorney General authority to issue regulations
explaining how he will exercise his discretion under
§ 1229c(b)(1). See, e.g., Dekoladenu v. Gonzales, 459 F.3d
500, 506 n.5 (4th Cir. 2006) (“The statute does not guarantee
voluntary departure even to eligible aliens. Rather, it . . .
authorizes the Attorney General to issue regulations limiting
eligibility for voluntary departure for any class or classes of
aliens. As a practical matter, only a relatively small percent-
age of removable aliens are granted voluntary departure.”
(citation omitted) (internal quotation marks omitted) (alter-
ations omitted)), overruled on other grounds by Dada, 554
12622                GARFIAS-RODRIGUEZ v. HOLDER
U.S. at 6-8; Cervantes-Ascencio v. INS, 326 F.3d 83, 86 (2d
Cir. 2003) (“Promulgating limits on eligibility for voluntary
departure involves broad discretion by the INS, as does grant-
ing or denying voluntary departure. This discretionary compo-
nent not only substantially curtails our review authority, but
also precludes entitlement to such relief as a matter of right.”
(citations omitted)). The Attorney General’s regulation is con-
sistent with § 1229c(e) because it is a limitation on eligibility
for voluntary departure for a class of aliens—those who wish
to remain in the United States while appealing from the BIA’s
decision.

   In his dissent, Judge Reinhardt argues that the Attorney
General’s regulation is not consistent with § 1229c(e) because
the term “eligibility” under § 1229c(e) does not “encompass
a condition . . . predicated on . . . future actions,” such as an
alien’s decision to pursue an appeal. Reinhardt Dissent. Op.
at 12645. For the reasons we have explained, we disagree
with such a narrow and isolated reading of “eligibility;”17 but
  17
     It is not clear, as Judge Reinhardt argues, that by using the term “eligi-
bility” Congress intended to limit the Attorney General’s discretion to an
ex ante determination of whether to permit voluntary departure. For exam-
ple, suppose that the immigration judge makes a determination under
§ 1229c(b)(1) that an alien may voluntarily depart, based on the required
finding that “the alien is, and has been, a person of good moral character
for at least 5 years immediately preceding the alien’s application for vol-
untary departure.” 8 U.S.C. § 1229c(b)(1)(B). If shortly thereafter the
alien commits a crime that clearly disqualifies her as a person of good
moral character, the Attorney General may make the determination that
the alien is ineligible for voluntary departure, despite the IJ’s previous
order.
   The process is similar to the “two-step process” for asylum in which
“the applicant [must] first . . . establish his eligibility for asylum . . . and
second . . . show that he is entitled to asylum as a matter of discretion.”
Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004); see also Silaya
v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008) (“Once eligibility is
established, it is within the Attorney General’s discretion to grant asy-
lum.”); Zi Zhi Tang v. Gonzales, 489 F.3d 987, 992 (9th Cir. 2007) (“Tang
has established asylum eligibility. We remand for the Attorney General to
                    GARFIAS-RODRIGUEZ v. HOLDER                     12623
even assuming that his reading is correct, 8 C.F.R.
§ 1240.26(i) is still valid. Section 1229c does not specify
when the Attorney General must decide eligibility for volun-
tary departure; it states only that he “may permit” an alien to
voluntarily depart after the immigration judge’s grant of vol-
untary departure. Whenever the Attorney General decides not
to permit voluntary departure, and thereby terminates a grant,
it is a determination of the alien’s eligibility for voluntary
departure at that moment in time. The fact that 8 C.F.R.
§ 1240.26(i) automatically terminates voluntary departure
when an alien files a petition for review does not change the
result—it is still a determination within the Attorney Gener-
al’s discretion that the alien cannot voluntarily depart. The
regulation just announces how the Attorney General will exer-
cise his discretion.

   In sum, § 1229c gives the Attorney General discretion
(“may permit”) to prohibit and thereby terminate voluntary
departure in § 1229c(b)(1) and authority to limit eligibility in
§ 1229c(e). Section 1229c does not contain any language that
qualifies this discretion. Indeed, the rest of § 1229c only lists
express limitations on the Attorney General’s authority to
grant voluntary departure. See, e.g., 8 U.S.C.
§ 1229c(a)(2)(A) (imposing a general 120-day maximum on
voluntary departure deadlines); id. § 1229c(b)(1) (imposing
four limitations on the class of aliens eligible for voluntary
departure); id. § 1229c(c) (prohibiting grants of voluntary
departure to aliens “previously permitted to so depart after
having      been     found     inadmissible     under    section
1182(a)(6)(A)”). Contrary to Judge Reinhardt’s view, Con-
gress did not mandate that the voluntary departure require-

exercise discretion in deciding whether to grant asylum.”); Kumar v. Gon-
zales, 444 F.3d 1043, 1056 (9th Cir. 2006) (“[W]e find Raj statutorily eli-
gible for asylum, and we remand for an exercise of discretion on his
asylum claim . . . .”); Khup v. Ashcroft, 376 F.3d 898, 905 (9th Cir. 2004)
(“Khup is eligible for asylum and [we] remand for the Attorney General
to make a discretionary decision regarding whether to grant asylum.”).
12624            GARFIAS-RODRIGUEZ v. HOLDER
ments listed in § 1229c(b)(1) would be exclusive. Reinhardt
Dissent. Op. at 12641, 12643-44. Instead, Congress plainly
contemplated that the Attorney General might further limit
eligibility and prohibit voluntary departure.

   We also note that the Attorney General’s regulation, 8
C.F.R. § 1240.26(i), does not deprive an alien of his funda-
mental right to judicial review or penalize the alien for exer-
cising that right. An alien who files a petition for review is
free to voluntarily depart within 30 days of filing and pursue
the appeal from outside of the United States. See, e.g.,
Contreras-Bocanegra v. Holder, 678 F.3d 811, 813-14, 819
(10th Cir. 2012) (considering an appeal from an alien who
was outside of the country); Jian Le Lin v. U.S. Att’y Gen.,
681 F.3d 1236, 1238 (11th Cir. 2012) (same); Pruidze v.
Holder, 632 F.3d 234, 235 (6th Cir. 2011) (same); Marin-
Rodriguez v. Holder, 612 F.3d 591, 592 (7th Cir. 2010)
(same); see also Nken v. Holder, 556 U.S. 418, 424-25 (2009)
(explaining that Congress has “lifted the ban on adjudication
of a petition for review once an alien has departed”); Dada,
554 U.S. at 22 (noting that Congress has permitted aliens who
have departed the United States to seek judicial review, but
not a motion to reopen); Patel v. Att’y Gen. of U.S., 619 F.3d
230, 235 (3d Cir. 2010) (“[U]nder 8 C.F.R. § 1240.26(i), an
alien does not necessarily lose her right to file a petition for
review. If she voluntarily departs within 30 days of filing a
petition for review and provides evidence that she remains
outside of the United States, she . . . can thus pursue her peti-
tion for review”). If an alien chooses to remain in the United
States to pursue the appeal, the regulation does not penalize
the alien for exercising the fundamental right to judicial
review; rather, it penalizes the alien for remaining in the
United States illegally while the appeal is pending.

   The Attorney General’s regulation may alter the alien’s
incentives to appeal, but it ultimately balances the interests of
the alien and those of the government. Voluntary departure
represents a quid pro quo between the alien and the govern-
                 GARFIAS-RODRIGUEZ v. HOLDER              12625
ment. Dada v. Mukasey, 554 U.S. 1, 11 (2008). As the
Supreme Court explained, “[i]f the alien is permitted to stay
in the United States past the departure date to wait out the
adjudication of the motion to reopen, he or she cannot then
demand the full benefits of voluntary departure; for the bene-
fit to the Government—a prompt and costless departure—
would be lost.” Id. at 19-20. That same benefit is lost to the
government if an alien files a petition for review. The Attor-
ney General’s regulation restores the quid pro quo between
the government and the alien.

   [14] In light of the broad grant of discretion over voluntary
departure in both § 1229c(b)(1) and § 1229c(e), we hold that
the promulgation of 8 C.F.R. § 1240.26(i) was a proper exer-
cise of the Attorney General’s authority.

                    IV.   CONCLUSION

   [15] We defer to the BIA’s holding that aliens who are
inadmissible under INA § 212(a)(9)(C)(i)(I) may not seek
adjustment of status under § 245(i). Furthermore, we hold that
under the five-factor test of Montgomery Ward, this rule can
properly be applied to Garfias because he filed his § 245(i)
application before any court ruled he was eligible to do so.
Finally, we hold that 8 U.S.C. § 1229c(e) unambiguously pro-
vides the Attorney General with the authority to promulgate
8 C.F.R. § 1240.26(i), and that Garfias’s grant of voluntary
departure terminated upon his decision to file a petition for
review.

  PETITION DENIED.
12626            GARFIAS-RODRIGUEZ v. HOLDER
Chief Judge KOZINSKI, disagreeing with everyone:

   The law is unsettled in many areas and parties often don’t
know the precise rule that applies to their past conduct until
their case is decided. Thus, retroactivity issues lurk in many,
perhaps all cases, yet we don’t routinely conduct retroactivity
analysis. Before we go into retroactivity mode, we must first
determine whether this case involves a retroactive application
of law. Because it doesn’t, we have no reason to discuss retro-
activity.

   A law is retroactive when it “attaches new legal conse-
quences to events completed” before it went into effect—a
determination guided by considerations of “fair notice, rea-
sonable reliance, and settled expectations.” Vartelas v.
Holder, 132 S. Ct. 1479, 1491 (2012) (internal quotation
marks omitted). INS v. St. Cyr, 533 U.S. 289 (2001), illus-
trates a classic example of a retroactive law. The petitioner
there pled guilty “almost certainly” in reliance that doing so
would preserve his chance to seek section 212(c) relief—a
“waiver of deportation” granted “at the discretion of the
Attorney General.” Id. at 293-94, 323, 325. St. Cyr thus took
an action in the real world—giving up his rights to a fair trial,
to a jury of his peers, to the presumption of innocence, to
proof beyond a reasonable doubt—in exchange for a limited
punishment that did not include losing his eligibility for
212(c) relief. Id. at 325. It was that completed act—the guilty
plea—that animated the Court’s conclusion that the statute
was impermissibly retroactive. Id.; see also Vartelas, 132 S.
Ct. at 1483-84 (holding that an IIRIRA provision was imper-
missibly retroactive because it “attached a new disability” to
Vartelas’s pre-IIRIRA guilty plea and conviction).

   Garfias can’t point to any similar action that he is “helpless
to undo,” see Vartelas, 132 S. Ct. at 1489 (internal quotation
marks omitted), to which today’s holding attaches new legal
consequences. Nor can he point to any settled law that today’s
holding unsettles by imposing an additional burden on his
                 GARFIAS-RODRIGUEZ v. HOLDER               12627
past conduct. See id. at 1490-92. There are, in fact, three sepa-
rate reasons why retroactivity analysis has no place in today’s
opinion.

   1. Garfias has done absolutely nothing in the real world that
would trigger a retroactivity analysis, even if there had been
settled law he could have counted on. But see p. 12628 infra
(no settled law). Garfias entered and remains in the United
States illegally, and that kind of ongoing conduct is certainly
not entitled to solicitude under retroactivity analysis. See
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 46 & n.13
(2006). The only completed act Garfias can point to that
might trigger retroactivity concerns is his application for
adjustment of status, which required Garfias to bring himself
out of the shadows and thereby increased his chances of being
deported. But Garfias is not entitled to continue defying this
country’s immigration laws by keeping himself hidden from
the authorities; he has no “right to continue illegal conduct
indefinitely under the terms on which it began.” See id. If fil-
ing his application “risked awakening the sleeping bureau-
cratic giant who might then resolve to initiate deportation
proceedings,” that is “a risk [ ]he always faced.” Hernandez
de Anderson v. Gonzales, 497 F.3d 927, 946 (9th Cir. 2007)
(Tallman, J., concurring in part and dissenting in part); cf.
Duran Gonzales v. U.S. Dep’t of Homeland Sec., 659 F.3d
930, 940-41 (9th Cir. 2011).

   I am aware of Ixcot v. Holder, 646 F.3d 1202, 1210-14 (9th
Cir. 2011), which holds that an illegal alien’s decision to
apply for discretionary relief is a sufficient past event to trig-
ger retroactivity analysis. Ixcot echoes the reasoning of Her-
nandez de Anderson, where Judge Tallman quite properly
dissented. See supra. We should take this opportunity to extir-
pate the Hernandez-Ixcot heresy, rather than perpetuating it.
But cf. maj. op. at 12614 (“Nothing in [In re Briones, 24 I. &
N. Dec. 355 (BIA 2007),] ‘impair[s] rights a party possessed
when he acted, increase[s] a party’s liability for past conduct,
or impose[s] new duties with respect to transactions already
12628            GARFIAS-RODRIGUEZ v. HOLDER
completed.”’ (quoting Landgraf v. USI Film Prods., 511 U.S.
244, 280 (1994)).

   2. There is another, independent reason Garfias’s case
doesn’t trigger retroactivity analysis: At the time he applied
for adjustment of status, there was no law resolving the statu-
tory ambiguity at issue here in his favor. Briones thus didn’t
create a new legal burden that didn’t exist under “[t]he law
then in effect.” Landgraf, 511 U.S. at 282 n.35. Garfias claims
that Briones changed the law from our ruling in Acosta v.
Gonzales, 439 F.3d 550, 556 (9th Cir. 2006), but Acosta was
issued four years after he applied to become a permanent resi-
dent pursuant to INA section 245(i). See maj. op. at 12588-89.
His only guidance when deciding whether to apply was the
text of the INA, which included section 212(a)(9)(C)—a pro-
vision that seemed on its face to make him inadmissible. See
maj. op. at 12588, 12591-92, 12615. The “obvious” tension
between sections 245(i) and 212(a)(9)(C) meant that Garfias
could have had no assurance that any subsequent interpreta-
tion of their interplay would be in his favor. Maj. op. at
12615.

   Briones thus doesn’t attach a new legal consequence to
Garfias’s decision to apply for adjustment of status. See Var-
telas, 132 S. Ct. at 1491; cf. Judulang v. Holder, 132 S. Ct.
476, 489 n.12 (2011) (rejecting alien’s argument that two BIA
decisions were impermissibly retroactive on the grounds that
the agency’s “prior practice” in that area of the law was “so
unsettled”). He is not situated similarly to the class of individ-
uals who applied for adjustment of status after Acosta and
before Briones. Accordingly, we have no occasion to consider
the impact of applying Briones to everyone “who sought
adjustment of status in reliance on Acosta,” as Judge Paez
urges. See Paez dissent at 12659-60, 12666, 12668. We can
make that decision when we get a petitioner who filed for
relief after Acosta. See Singh v. Napolitano, 649 F.3d 899,
901 n.1 (9th Cir. 2011) (per curiam).
                 GARFIAS-RODRIGUEZ v. HOLDER               12629
   3. But even if Garfias had applied to adjust his status during
the twenty-one month window between Acosta and Briones,
his case still wouldn’t merit retroactivity analysis because
Briones didn’t change the law; it settled the law. See Nunez-
Reyes v. Holder, 646 F.3d 684, 691-92 (9th Cir. 2011) (en
banc); Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333
(9th Cir. 1982) (balancing test applies when necessary to pro-
tect “a regulated party’s interest in being able to rely on the
terms of a rule as it is written” (emphasis added)). An agency
is the “authoritative interpreter” “of an ambiguous statute [it]
is charged with administering” so long as its interpretation is
“within the limits of reason.” Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005).
No one should have been surprised by the interpretation
announced in Briones. It was clearly foreshadowed by the
BIA’s earlier ruling in In re Torres-Garcia, 23 I. & N. Dec.
866 (BIA 2006), which predated Acosta by a month and held
that an alien who was inadmissible under another provision of
section 212(a)(9)(C) couldn’t apply for adjustment of status
under section 245(i). See generally maj. op. at 12592-94.
Acosta’s interpretation of the statutory ambiguity clarified in
Briones was provisional, not authoritative, for purposes of
retroactivity analysis. See Brand X, 545 U.S. at 982-83.
Authoritative interpreters operate by the Highlander principle:
“There can be only one.”

   The majority opinion at least recognizes that the BIA is the
“authoritative arbiter of the meaning of the ambiguous provi-
sions of the INA at issue here,” but then goes astray in sug-
gesting that our interpretation of the provisions was
“authoritative . . . at least until” the BIA issued Briones. Maj.
op. at 12602. Thus, Garfias and the majority contend, the
BIA’s interpretation that contradicts our earlier interpretation
in Acosta “brought about [a] change in the law.” Maj. op. at
12600 n.7, 12603. Bosh. Brand X makes it perfectly clear that
“a court’s opinion as to the best reading of an ambiguous stat-
ute an agency is charged with administering is not authorita-
12630            GARFIAS-RODRIGUEZ v. HOLDER
tive.” Brand X, 545 U.S. at 983 (emphasis added). Briones
didn’t change the law; it set it.

   Nor can I agree with the majority’s gratuitous discussion of
separation of powers and its conclusion that “we must treat an
agency decision that is contrary to a ruling previously set
forth by a court of appeals and, as a result of Chevron and
Brand X, prompts the court of appeals to defer to the agency,
as we would if the agency had changed its own rules.” Maj.
op. at 12601-03. I find this discussion opaque and confusing
—and not the least bit helpful.

   The Supreme Court has made it clear that, in those areas
where agencies have been delegated interpretive responsibil-
ity by Congress, they and they alone can speak with the
authority as to what the law means. See, e.g., Brand X, 545
U.S. at 982-83; Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842-45 (1984); see also Peter L.
Strauss, “Deference” is Too Confusing—Let’s Call Them
“Chevron Space” and “Skidmore Weight,” 112 Colum. L.
Rev. 1143, 1145-48 (2012). It’s as if Congress gave these
agencies magic fountain pens that they can use to interlineate
the statutory text in order to fill gaps and resolve ambiguities.
Our job is to apply the law to individual cases, based on the
normal rules of construction, which include the requirement
that we follow the authoritative interpretation of an agency.
Where the agency has not yet spoken, our ruling is necessarily
provisional and subject to correction when the agency chooses
to adopt its own interpretation of the statute. See Kathryn A.
Watts, Adapting to Administrative Law’s Erie Doctrine, 101
Nw. U. L. Rev. 997, 1000-01 (2007).

   We do, of course, set the law of the circuit, which is bind-
ing on all the courts—until the agency speaks. At that point
we, along with every other court, are bound by a reasonable
interpretation adopted by the agency. It is sophistry to claim,
as the majority does, that this amounts to an agency changing
its own rules—as if we were speaking on behalf of the agency
                 GARFIAS-RODRIGUEZ v. HOLDER               12631
when we adopted our earlier interpretation. It’s far simpler
and more correct to say that we took an educated guess as to
what the statute meant, just as we often guess what state laws
mean in the absence of authoritative guidance from the state
supreme court. Cf. Brand X, 545 U.S. at 983-84; United Gas
Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 135 (1962)
(per curiam). But when a state supreme court later contradicts
us, we surely wouldn’t say that the state court changed its
mind. I see no point in adopting this fiction, and cannot join
the rest of the panel in overruling our precedents cited on
page 12603 of the majority opinion.

                             ***

   The majority claims that I “conflate[ ] the result of a retro-
activity analysis with the process of conducting it.” Maj. op.
at 12604. But we’ve held that where an agency’s decision
“would not have a retroactive effect . . . , we need not reach
the less stringent standard set forth in Montgomery Ward.”
Singh, 649 F.3d at 901 n.1; see also Judulang, 132 S. Ct. at
489 n.12. The majority fails to acknowledge that there are
cases that don’t require retroactivity analysis because they
don’t involve a retroactive application of the law. The major-
ity also doesn’t give us any way to distinguish cases that raise
a legitimate retroactivity question from those that do not, or
even bother to explain why this case falls into the former cate-
gory rather than the latter. What are those charged with apply-
ing our law to gather from this? That it’s up to every judge
and every panel to conduct a retroactivity analysis whenever
they feel it in their guts that the law is being applied retroac-
tively?

   The majority is also wrong when it suggests that my
approach is equivalent to its own. See maj. op. at 12603-04 &
n.9. I’ve advanced three separate reasons why I believe this
case doesn’t involve retroactive application of the law, but I
don’t need all three to reach that conclusion; any one, stand-
ing alone, would be enough. I engage in no balancing and
12632            GARFIAS-RODRIGUEZ v. HOLDER
weighing of factors against each other, whereas my col-
leagues do.

   Balancing involves uncertainty because you have to predict
how different judges will assess the factors, which is not
always an easy task. This case illustrates my point: Having
launched themselves into retroactivity mode, six of my col-
leagues pick one test while three others pick a different test.
Compare maj. op. at 12625, with Paez dissent at 12668-69,
and Gould conc. at 12632. One judge believes that either test
comes to the same result, see Graber partial conc. at 12635,
and another agrees with the majority’s conclusion while
applying the test favored by the dissent, see Gould conc. at
12632-33. As an en banc court, we have a responsibility to
bring clarity to our law. By the time lawyers in this circuit get
through reading all of our opinions, they’ll be thoroughly con-
fused.

   I concur in Subsection III.B, maj. op. at 12599-12616, only
to the extent that I agree Briones applies to Garfias. I join in
the rest of the opinion.



GOULD, Circuit Judge, concurring:

   I concur in the outcome of the majority opinion, and could
join most of its analysis except for its decision in part III.B.3
to apply the test from Montgomery Ward & Co. v. FTC, 691
F.2d 1322, 1328 (9th Cir. 1982) for when agency decision
should be applied retroactively. I also agree with most of the
reasoning in the dissent of Judge Paez as to why the retroac-
tivity test of Chevron Oil v. Huson, 404 U.S. 97 (1971) should
be applied rather than Montgomery Ward. But I part company
with Judge Paez’s dissent as to its application of the Chevron
Oil standard.

   I would apply the three-factor test for retroactivity set forth
in Chevron Oil to conclude that the rule of In re Briones, 24
                 GARFIAS-RODRIGUEZ v. HOLDER               12633
I. & N. Dec. 355 (BIA 2007), that we adopt today, should be
applied retroactively. We have said that we must apply the
Chevron Oil test where “we announce a new rule of law that
does not concern our jurisdiction.” Nunez-Reyes v. Holder,
646 F.3d 684, 692 (9th Cir. 2011) (en banc) (emphasis
added). Even though we now change our interpretation of the
interplay between §§ 1182(a)(9)(C)(i)(I) and 1255(i) because
the Supreme Court, in National Cable & Telecommunications
Association v. Brand X Internet Services, 545 U.S. 967
(2005), has told us to defer to the BIA’s authoritative interpre-
tation of the ambiguities in the INA, it is our court that is
announcing a new rule of law for our circuit, not the BIA.
Indeed, although Brand X characterizes the subsequent and
contrary agency interpretation here as authoritative, the BIA’s
interpretation does not become binding in this circuit until we
defer to that interpretation. See Nunez-Reyes, 646 F.3d at 692
(“There is no question that our decision today establishes a
new principle of law . . . by overruling clear past precedent
on which litigants may have relied.”) (internal quotation
marks and alterations omitted).

   Brand X does not transform the nature of our decision into
an agency decision. Whether we adopt a new rule because of
changed views on a complex analysis of underlying law, or
because of a simple flash of insight accepted and followed, or
because of our duty to abide Supreme Court precedent, our
decision remains a judicial decision. The judicial power under
Article III is in the courts, not in an agency with responsibili-
ties relating to the decision.

   I would apply the Chevron Oil test to conclude that the rule
of Briones that we adopt today should apply retroactively.
“The three Chevron Oil factors are: (1) whether the decision
establishes a new principle of law; (2) whether retrospective
operation will further or retard the rule’s operation in light of
its history, purpose, and effect; and (3) whether our decision
could produce substantial inequitable results if applied retro-
actively.” Id. at 692 (internal quotation marks, alterations, and
12634            GARFIAS-RODRIGUEZ v. HOLDER
citations omitted). How does that test apply to the circum-
stances presented here?

   First, it is unmistakable that our decision establishes a new
principle of law because we overrule clear precedent estab-
lished by Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006).
Second, I conclude that a “retrospective operation” of the
Briones rule would “further . . . the rule’s operation in light
of its history, purpose, and effect,” because § 1255(i) aims to
give relief to a narrow group of aliens instead of to all those
who have been deemed inadmissible for any reason. See
Briones, 24 I. & N. Dec. at 359-60. Third, because the BIA
clarified its position on the interplay between
§§ 1182(a)(9)(C)(i)(I) and 1255(i) about 21 months after our
decision in Acosta, I conclude that our decision here would
not produce substantial inequitable results if applied retroac-
tively. See Nunez-Reyes, 646 F.3d at 692-94 (describing a 10-
year period during which aliens may have relied on our deci-
sion in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000) to forego their right to a jury trial by pleading guilty to
simple possession charge with the expectation of no adverse
immigration consequences). As the majority points out, an
alien who relied on our decision in Acosta had notice of its
vulnerability as soon as Briones was issued. And, unlike in
Nunez-Reyes where there was detrimental reliance because
the alien waived important constitutional rights by relying on
Lujan-Armendariz which we then overruled, here the main
interest implicated is the alien’s prerogative to continue to
conceal his unlawful presence, an interest that, the majority
points out, is of no legal significance. See Nunez-Reyes, 646
F.3d at 693-94. For these reasons, I conclude that our decision
today should apply retroactively, hence my concurrence in the
majority’s result.
                 GARFIAS-RODRIGUEZ v. HOLDER               12635
GRABER, Circuit Judge, concurring in part and dissenting in
part:

   I join Parts III-A and III-B of the majority opinion. It is a
close question whether Chevron Oil Co. v. Huson, 404 U.S.
97 (1971), or Montgomery Ward & Co. v. FTC, 691 F.2d
1322 (9th Cir. 1982), provides the better framework for decid-
ing the retroactivity issue when both an agency and a court
(deferring to the agency’s interpretation) change their con-
struction of an ambiguous statute. Even if the Chevron Oil
test applied here, however, I agree with Judge Gould’s analy-
sis of it. That is, under either framework, retroactive applica-
tion of the new legal rule is appropriate.

   I also join Part II of Judge Reinhardt’s dissent, which con-
cludes that 8 C.F.R. § 1240.26(i) exceeds the Attorney Gener-
al’s statutory authority.



REINHARDT, Circuit Judge, with whom PAEZ, Circuit
Judge, joins, and with whom GRABER, Circuit Judge, joins
as to Part II, dissenting:

  I join in Judge Paez’s dissent, which ably explains why the
Chevron Oil test should guide our analysis regarding the
adjustment of status issue, and why today’s holding in that
regard should apply prospectively only.

   I write separately to express my disagreement with the
majority’s decision, in Part III(C) of its opinion, to uphold the
Attorney General’s regulation automatically terminating vol-
untary departure in the event that a non-citizen has the temer-
ity to file a petition for review of the BIA’s decision on the
underlying issue with the court of appeals. 8 C.F.R.
§ 1240.26(i). The Attorney General’s regulation effectively
penalizes non-citizens for exercising a fundamental right in
the American legal system: the right to judicial review of
12636            GARFIAS-RODRIGUEZ v. HOLDER
executive action. The regulation is incompatible with the stat-
utory scheme establishing voluntary departure and thus an
improper exercise of the powers delegated to the Attorney
General. The majority’s decision to uphold the regulation is
not only erroneous as a matter of law, but also, ultimately,
renders our justice system less worthy of its name.

                               I.

   “The very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws.”
So proclaimed Chief Justice John Marshall in Marbury v.
Madison, one of our country’s earliest cases reviewing execu-
tive action. 5 U.S. (1 Cranch) 137, 163 (1803). In the years
since, the presumption of judicial review over administrative
actions has become a fundamental principle of American law.
See INS v. St. Cyr, 533 U.S. 289, 298 (2001).

   This commitment to judicial review is particularly impor-
tant in the review of decisions regarding removal. Few deci-
sions will be more consequential in an individual’s life than
the decision to forcibly remove him from the country. The
relief that a non-citizen seeks from immigration authorities is
the last resort that a non-citizen has before being returned,
against his will, to a country where he may have no ties or
family, or where he may be subjected to imprisonment, tor-
ture, or certain death. Recognizing the gravity of such pro-
ceedings, we have asserted numerous times that non-citizens
in removal hearings are entitled to due process protections
under the Fifth Amendment. See Campos-Sanchez v. INS, 164
F.3d 448, 450 (9th Cir. 1999). We have explained that, con-
sistent with that entitlement, non-citizens “must receive a ‘full
and fair hearing.’ ” Id.

   Our court has joined the chorus of circuit courts lamenting
frequent errors by Immigration Judges and the Board of
Immigration Appeals in the handling of these important cases.
See, e.g., Cruz Rendon v. Holder, 603 F.3d 1104, 1111 n.3
                 GARFIAS-RODRIGUEZ v. HOLDER              12637
(9th Cir. 2010) (“We are deeply troubled by the IJ’s conduct
in this case, which exhibits a fundamental disregard for the
rights of individuals who look to her for fairness.”); Mohamed
v. Ashcroft, 400 F.3d 785, 792 (9th Cir. 2005) (“Not only was
the BIA’s opinion an example of sloppy adjudication, it con-
travened considerable precedent.”); Colemnar v. INS, 210
F.3d 967, 973 (9th Cir. 2000) (“Judges do little to impress the
world that this country is the last best hope for freedom by
displaying the hard hand and closed mind of the forces asy-
lum seekers are fleeing.”); see also, e.g., Benslimane v. Gon-
zales, 430 F.3d 828, 829-30 (7th Cir. 2005) (noting criticism
of the BIA and IJ’s by other circuit courts and concluding that
the “adjudication of [immigration] cases at the administrative
level has fallen below the minimum standards of legal jus-
tice”). It is thus not surprising that both the Supreme Court
and our court frequently reject interpretations that would
eliminate judicial review of these decisions. See, e.g., Kucana
v. Holder, 130 S. Ct. 827, 839-40 (2010) (“When a statute is
reasonably susceptible to divergent interpretation, we adopt
the reading that accords with traditional understandings and
basic principles: that executive determinations generally are
subject to judicial review.” (internal quotation omitted)); Bar-
rios v. Holder, 581 F.3d 849, 857 (9th Cir. 2009); but see
Planes v. Holder, 686 F.3d 1033, 1037 (9th Cir. 2012) (Rein-
hardt, J., dissenting from denial of rehearing en banc) (noting
the panel’s “inexplicable” decision to permit non-citizens to
“be deported immediately after a trial court enters a judgment
of guilt against them in a criminal case, before they have had
the opportunity to obtain appellate review of their convic-
tions”).

   Despite all this, the Attorney General’s new regulation
imposes drastic consequences on those non-citizens who seek
nothing more than to have a court review what may be the
single most significant legal action that will ever affect them.
Prior to this regulation, a non-citizen who was granted volun-
tary departure at the conclusion of his removal proceedings
was free to seek judicial review of the order requiring him to
12638               GARFIAS-RODRIGUEZ v. HOLDER
leave the country, without jeopardizing his voluntary departure.1
We held that we had the equitable authority to stay the volun-
tary departure period while a non-citizen’s petition for review
was pending before our court. El-Himri v. Ashcroft, 344 F.3d
1261, 1262-63 (9th Cir. 2003); see also Dada v. Mukasey, 554
U.S. 1, 10 (2008) (noting agreement of some other circuits
and declining to address the question). The new regulation,
which went into effect on the last day of Attorney General
Mukasey’s tenure in office,2 punishes those non-citizens who
have been granted voluntary departure for seeking judicial
review, by terminating the grant of voluntary departure: “If,
prior to departing the United States, the alien files a petition
for review . . . or any other judicial challenge to the admin-
istratively final order, any grant of voluntary departure shall
terminate automatically upon the filing of the petition or other
judicial challenge . . . .” 8 C.F.R. § 1240.26(i) (emphasis
added).

   The disability imposed by the Attorney General’s new
regulation—forcing non-citizens to forgo their voluntary
departure and instead depart under an order of removal, sim-
ply because they have exercised their right to judicial review
—is substantial. A non-citizen gains numerous benefits from
not being forcibly removed from the country. Voluntary
departure not only permits non-citizens the time and freedom
to organize their affairs in the United States before departing,
but also provides legal benefits. Non-citizen who depart under
an order of removal are barred for ten years from being admit-
ted to the country. See 8 U.S.C. § 1182(a)(9)(A)(ii). Non-
citizens who are ordered removed, who have accumulated at
  1
     As explained below, non-citizens who are granted “pre-decisional”
voluntary departure (that is, either prior to or during removal proceedings),
and who forgo all other claims for relief, necessarily waive their right to
appeal.
   2
     See Voluntary Departure: Effect of a Motion To Reopen or Reconsider
or a Petition for Review, 73 Fed. Reg. 76,927, 76,927 (Dec. 18, 2008)
(final rule) (“This rule is effective January 20, 2009.”).
                    GARFIAS-RODRIGUEZ v. HOLDER                      12639
least one year of illegal presence in the country, and who later
re-enter the country are subject to a life-long bar on their pres-
ence in the United States. 8 U.S.C. § 1182(a)(9)(C)(i).3 Those
who are ordered removed and re-enter are also subject to
criminal prosecution. 8 U.S.C. § 1326. None of these conse-
quences, however, apply to individuals who are granted vol-
untary departure.

   It is particularly perverse that the Attorney General, in
attempting to deter non-citizens from seeking judicial review,
has chosen to target those non-citizens who are granted volun-
tary departure at the conclusion of their proceedings. The
qualifications for such “post-decisional” departure are not
easy to meet: non-citizens who have been granted that form
of relief must establish that they have been present in the
United States for at least one year, that they have been of
good moral character for at least the previous five years, that
they have not committed certain criminal or other offenses,
and that they have both the financial means to depart the
country and the intent to do so. 8 U.S.C. § 1229c(b)(1). Of all
non-citizens, those present in the country for a substantial
period of time, who have been of good moral character, and
who have not committed crimes would seem to be those
whom the government might want to take the most care to
prevent from being erroneously removed, and thus to ensure
that they are not dissuaded from seeking judicial review. Yet
it is these non-citizens, and only these non-citizens, who are
being required to forfeit their right to judicial review under
the Attorney General’s regulation.

   The Attorney General and the majority defend the regula-
tion by arguing that non-citizens are perfectly free to pursue
their petitions for review from abroad. This argument is spe-
  3
    Both of these bars are subject to waiver, although only at the discretion
of the Attorney General or the Secretary of Homeland Security, and, in the
case of the lifetime bar, only after 10 years. See 8 U.S.C.
§ 1182(a)(9)(A)(iii), (a)(9)(C)(ii).
12640               GARFIAS-RODRIGUEZ v. HOLDER
cious at best. For many non-citizens, the ability to pursue a
petition for review from abroad is entirely meaningless. Many
non-citizens face persecution, torture, or even death if they
return home to their country. For them, the option to return
home to face such horrors while a court of appeals considers
rectifying any error by the BIA is no option at all.4 Further,
it is far from clear that the Attorney General actually has the
capability to effectively return such a non-citizen to the
United States in the event that a court (or the BIA upon
remand from judicial review) were to grant relief to a non-
citizen who departed. The Solicitor General’s office recently
admitted that its prior representations to that effect were less
than forthcoming. See Letter of April 24, 2012, from Deputy
Solicitor General Michael R. Dreeben at 4, Nken v. Holder,
556 U.S. 418 (2009) (No. 08-681) (“[T]he government is not
confident that the process for returning removed aliens, either
at the time its brief was filed or during the intervening three
years, was as consistently effective as the statement in its
brief in Nken implied.”).5

                                   II.

   One need not agree with all of the above legal criticisms of
the Attorney General’s regulation, however, in order to find
that it was not within his authority to enact it. As set forth
below, the Attorney General’s regulation is neither a reason-
able interpretation of the voluntary departure statute nor, as
the Attorney General argues, a permissible exercise of his
power to limit “eligibility” for voluntary departure. The regu-
  4
     In addition, this defense offers no answer to the other regulation,
enacted as part of the same rule-making process, that terminates voluntary
departure upon a non-citizen’s filing of a motion to reopen. 8 C.F.R.
§ 1240.26(e)(1). Motions to reopen terminate automatically upon a non-
citizen’s departure from the country. See Dada v. Mukasey, 554 U.S. 1,
5 (2008) (“departure has the effect of withdrawing [a] motion to reopen”).
   5
     Available online at http://online.wsj.com/public/resources/documents/
return.PDF.
                 GARFIAS-RODRIGUEZ v. HOLDER               12641
lation must be struck down as ultra vires and unreasonable,
and the majority errs in holding to the contrary.

                               A.

   The statutory provision that creates voluntary departure for
certain individuals who have been ordered removed (“post-
decisional” voluntary departure) nowhere mentions the relin-
quishment of procedural rights. See 8 U.S.C. § 1229c(b). The
Attorney General argues that his interpretation of the statute
as containing such a requirement is a permissible exercise of
his interpretive authority. Even assuming that the Attorney
General’s regulation is entitled to Chevron deference, how-
ever, it may be upheld only to the extent that it is “reasonable
in light of the legislature’s revealed design.” Ariz. Health
Care Cost Containment Sys. v. McClellan, 508 F.3d 1243,
1249 (9th Cir. 2007) (quoting United States v. Haggar
Apparel Co., 526 U.S. 380, 392 (1999)) (internal quotations
omitted). Viewed in this light, it is clear that the Attorney
General’s regulation cannot be said to be consistent with Con-
gress’s revealed design of the voluntary departure statute.

   Voluntary departure is the name given to two distinct types
of statutorily-provided relief from removal. See 8 U.S.C.
§ 1229c(a), (b). Each type of voluntary departure reflects a
careful, congressionally-crafted balance of incentives and
obligations. The first form of voluntary departure is available
to non-citizens either “in lieu of being subject to [removal]
proceedings . . . or prior to the completion of such proceed-
ings.” 8 U.S.C. § 1229c(a)(1). This pre-decisional voluntary
departure, as suggested by the fact that it must occur before
the completion of removal proceedings, necessarily involves
the relinquishment of certain procedural rights, including the
right to petition for review. Thus, as the Attorney General has
made clear, eligibility for this type of pre-decisional voluntary
departure naturally requires that a non-citizen forgo the
opportunity to apply for other types of relief from removal,
such as an application for asylum, relief under the Convention
12642              GARFIAS-RODRIGUEZ v. HOLDER
Against Torture, or cancellation of removal. See In re
Arguelles-Campos, 22 I. & N. Dec. 811, 814-16 (BIA 1999)
(“If an alien applies for voluntary departure before the conclu-
sion of removal proceedings, no additional relief may be
requested. If additional relief has been requested, such a
request must be withdrawn.”); 8 C.F.R. § 1240.26(b)(1)(i)(B).
This also naturally requires that a non-citizen waive his right
to petition for review of any issues regarding the removal pro-
ceedings. See 8 C.F.R. § 1240.26(b)(1)(i)(D).

   The second form of voluntary departure, however, had not
—at least, until the time of Attorney General Mukasey’s
regulation—been thought to involve the relinquishment of
procedural rights. Rather, this second, post-decisional form of
voluntary departure was available to all non-citizens “at the
conclusion” of removal proceedings, regardless of whether
they subsequently decided to seek judicial review. 8 U.S.C.
§ 1229c(b). As explained above, our circuit joined many oth-
ers in finding that such voluntary departure was entirely con-
sistent with judicial review. In accordance with the fact that
post-decisional voluntary departure requires the government
to expend additional resources pursuing a non-citizen’s
removal, the eligibility requirements for such post-decisional
voluntary departure are significantly heightened. Although the
eligibility requirements for pre-decisional voluntary departure
are not particularly onerous,6 Congress rendered the eligibility
requirements for post-decisional voluntary departure substan-
tially more difficult to meet, requiring a mandatory length of
presence in the United States and good moral character, and
imposing other significant conditions. 8 U.S.C. § 1229c(b)(1).
Congress thus limited post-decisional voluntary departure to
  6
   The only non-citizens rendered ineligible for such departure are those
who have been convicted of an aggravated felony or those who have
engaged in (or been associated with) terrorist activities. 8 U.S.C.
§ 1229c(a)(1). In addition, non-citizens who are arriving in the United
States and who are placed in removal proceedings may not apply for pre-
hearing voluntary departure, although they may voluntarily withdraw their
applications for admission. 8 U.S.C. § 1229c(a)(4).
                 GARFIAS-RODRIGUEZ v. HOLDER              12643
only a small subset of the non-citizens who complete removal
proceedings. Consistent with this principle, Congress also dif-
ferentiated between the forms of relief available under each
type of voluntary departure. Whereas non-citizens granted
pre-decisional voluntary departure may be given up to 120
days to voluntarily depart the country, and are not categori-
cally required to post a bond, 8 U.S.C. § 1229c(a)(2)(A),
(a)(3), non-citizens granted post-decisional voluntary depar-
ture are given only 60 days to depart, and are required by stat-
ute to post a bond for the costs of their departure, 8 U.S.C.
§ 1229c(b)(2)-(3).

   The BIA has recognized the important distinction between
these two statutory forms of relief, despite the fact that they
have the same name:

    It is clear from the significant differences between
    voluntary departure under sections 240B(a) and
    240B(b) of the Act [respectively, 8 U.S.C.
    § 1229c(a) and (b)] that Congress intended the two
    provisions to be used for different purposes. While
    the requirements for voluntary departure under sec-
    tion 240B(b) resemble those of voluntary departure
    under former section 244(e) in deportation proceed-
    ings, section 240B(a) requires much less from the
    alien. Under section 240B(a), an alien need not show
    that he has good moral character or that he has the
    financial means to depart the United States. An alien
    must request section 240B(a) relief either in lieu of
    being subject to proceedings, or early in removal
    proceedings. He must also voluntarily forego all
    other forms of relief. Thus, Immigration Judges can
    use section 240B(a) relief to quickly and efficiently
    dispose of numerous cases on their docket, where
    appropriate. We accept the need for such a tool and
    support its purpose.

Arguelles-Campos, 22 I. & N. Dec. at 817. The BIA thus has
recognized that not only did Congress purposefully intend to
12644            GARFIAS-RODRIGUEZ v. HOLDER
draw an important distinction between these two types of
relief, but that the relinquishment of procedural rights was
central to the distinction between the two.

   With this new regulation, however, the Attorney General
has violated that congressional design, by inserting a require-
ment for the relinquishment of procedural rights into the post-
decisional voluntary departure process. Although, in some
instances, it might be appropriate for an agency to read sub-
stantive provisions into congressional silence, here, Con-
gress’s “revealed design” forbids the Attorney General from
doing so. See Haggar Clothing, 526 U.S. at 392 (“[A] court
may conclude the regulation is inconsistent with the statutory
language or is an unreasonable implementation of it. In those
instances, the regulation will not control.”). The Attorney
General could not subvert the statutory design by, for exam-
ple, limiting pre-decisional voluntary departure to only those
non-citizens who are eligible for post-decisional voluntary
departure, so as to essentially eliminate the distinction
between eligibility for the two forms of statutory relief. See
Arguelles-Campos, 22 I. & N. Dec. at 817 (enumerating the
different eligibility requirements as a hallmark of the “differ-
ent purposes” Congress intended for each form of voluntary
departure). The Attorney General is equally barred from elim-
inating the distinction between the procedural prerequisites
for these two forms of relief, by requiring the relinquishment
of the right to judicial review as part of exercising the statu-
tory entitlement to post-decisional voluntary departure.

   Thus, the Attorney General’s regulation automatically ter-
minating voluntary departure is simply inconsistent with the
statutory scheme. It cannot be upheld as a permissible exer-
cise of the Attorney General’s authority to interpret the volun-
tary departure statute.

                              B.

  The Attorney General seeks to defend his regulation by
pointing to 8 U.S.C. § 1229c(e), which permits him, by regu-
                    GARFIAS-RODRIGUEZ v. HOLDER                      12645
lation, to “limit eligibility for voluntary departure under this
section for any class or classes of aliens.” The majority essen-
tially suggests that this provision constitutes carte blanche for
the Attorney General to prohibit voluntary departure in any
way he pleases and at any time he pleases, including after
final administrative action affirming a grant of voluntary
departure. In doing so, it errs.

   The majority’s reading is contrary to the unambiguous
command of the statute, which, by its very terms, grants the
Attorney General authority to limit only “eligibility” for vol-
untary departure. The plain meaning of the term “eligibility”
simply does not encompass a condition, such as the one here,
predicated on a non-citizen’s future actions—that is, a condi-
tion predicated on events that are unknown and unknowable
at the time that a determination is made. Rather, the meaning
generally implies some ascertainable state of being at the time
that the particular decision for which eligibility is relevant is
made. Thus, for example, Black’s defines the term as “[f]it
and proper to be selected or to receive a benefit.” Black’s Law
Dictionary 597 (9th ed. 2009) (emphasis added). The use of
the present tense in that definition is no mistake, because “eli-
gibility” simply does not encompass the fitness to have been
selected, or to have received a benefit. “Eligibility” might
encompass events that will occur in the future but whose sta-
tus is presently determinable. It cannot, however, encompass
the type of future condition in the Attorney General’s regula-
tion, which can only be described as a ground for termination
of voluntary departure.7
  7
   The Attorney General does not contend that he has the authority to ter-
minate voluntary departure, separate from his ability to create conditions
on eligibility. He does not assert—as the majority does, without citing any
support for the proposition—that his discretion over the grant of such
departure would permit him to terminate it on any ground, once it has been
granted. Rather, the Attorney General contends that “the authority for this
regulation is clearly rooted in the Attorney General’s explicit statutory
power to limit the class of aliens who are eligible for voluntary departure”
(emphasis added).
12646              GARFIAS-RODRIGUEZ v. HOLDER
   Under the plain meaning of the term, the determination of
“eligibility” is made when the immigration judge grants vol-
untary departure. If the Attorney General has exercised his
discretion to limit eligibility for a “class” of which the non-
citizen is a member, the individual seeking voluntary depar-
ture will be ineligible to be awarded that relief. Otherwise, he,
like the non-citizen here, is eligible and may be granted such
relief, if he otherwise qualifies.

   Although the distinction may occasionally be elusive, the
difference between a condition for “eligibility” and a condi-
tion for “termination” is not as trivial as the majority suggests.
Neither the majority nor the government contends that a vio-
lation of the other eligibility criteria for voluntary departure
(e.g., good moral character) after the immigration judge has
granted the non-citizen voluntary departure would constitute
grounds for a determination that the non-citizen is not eligi-
ble. Nor does either point to any case to that effect.8 In fact,
another regulation issued by the Attorney General suggests
just the opposite: that “eligibility” refers to a condition identi-
fiable at the time that voluntary departure is granted. The reg-
ulation permits the Attorney General to revoke voluntary
departure—that is, to declare it as having been improperly
granted in the first place—but only upon finding that the
application “should not have been granted.” 8 C.F.R.
§ 240.25(f) (emphasis added). This regulation provides no
permission to revoke voluntary departure for a newly-arising
condition which, if originally present, would have kept a non-
citizen from receiving voluntary departure. If “eligibility” had
the broad meaning ascribed to it by the majority, there would
be no need for this regulation to be so circumscribed.
  8
   When, if ever, an award of voluntary departure may be terminated
prior to its expiration date for wrong-doing or misrepresentation (aside
from grounds existing at the time voluntary departure was granted) is
another matter, one that is not raised by the Attorney General. See n.7,
supra.
                 GARFIAS-RODRIGUEZ v. HOLDER               12647
   Indeed, our procedural due process jurisprudence recog-
nizes that the distinction between the conditions relevant to
eligibility and to termination is an important one, fundamental
to the very existence of vested interests in life, liberty, and
property. As the Supreme Court held in Logan v. Zimmerman
Brush, “While the legislature may elect not to confer a prop-
erty interest, it may not constitutionally authorize the depriva-
tion of such an interest, once conferred, without appropriate
procedural safeguards.” 455 U.S. 422, 432 (1982) (internal
quotations marks and alterations omitted). Permitting the
executive to eliminate the distinction between the two legal
concepts would “allow the State to destroy at will virtually
any state-created [ ] interest” by claiming that its deprivation
was simply a condition of the right having been granted in the
first place. Id.

   This majority’s decision is contrary to the plain text of 8
U.S.C. § 1229c(e). There is simply nothing in that provision,
or any other statutory provision to which the majority or the
Attorney General can point, to suggest that, when Congress
permitted the Attorney General to regulate eligibility require-
ments for voluntary departure, it also intended to permit him
to terminate voluntary departure once it was granted, or to
enact a regulation to that effect. The majority errs in granting
the Attorney General that authority—and, in the process, by
eviscerating the important distinction between eligibility for
a right and the termination of that right.

                               C.

   Perhaps in recognition of the weakness of the Attorney
General’s rationale, the majority offers its own interpretation
of the voluntary departure statute as support for the Attorney
General’s authority to promulgate the regulation. Its reading
of the statute, however, is, in my view, unreasonable, clearly
in error, and directly contrary to the manner in which the
Attorney General construes the statute. Certainly, the Attor-
ney General does not—and in all likelihood would not—urge
12648            GARFIAS-RODRIGUEZ v. HOLDER
the adoption of the majority’s rationale, and the majority errs
in sua sponte making it the law of this circuit.

   The majority reads the voluntary departure statute as
requiring two different actions at two different times by two
different actors—despite the fact that this is not, and has
never been, the law; nor has it ever been the manner in which
voluntary departure has been implemented. The majority
states that the immigration judge must first enter an order
granting voluntary departure upon finding that the non-citizen
meets the statutory requirements and is “eligible” for relief.
The majority then states that there is a second and subsequent
step, which, it contends, occurs “after [voluntary departure]
has been granted by the immigration judge” (emphasis
added), at which the Attorney General “may permit” the non-
citizen to voluntarily depart. The majority contends, as a
result of this second step, that the Attorney General “may” for
any reason “permit” or deny voluntary departure after it has
been granted by the immigration judge and/or the Board of
Immigration Appeals. According to the majority, the Attorney
General may do so for any reason and at any time until the
non-citizen has actually departed the country (or even, poten-
tially, afterward). It is on the basis of this definition of “per-
mit” that the majority argues that the statute affords the
Attorney General the right to “terminate” the grant of volun-
tary departure—an authority that the Attorney General him-
self does not purport to possess, other than to the extent that
he may do so by “limit[ing] eligibility . . . for any class or
classes of aliens.” See discussion supra Part II(B).

   The majority entirely misapprehends the voluntary depar-
ture scheme. The language in the voluntary departure statute
stating that the Attorney General “may permit” a non-citizen
to voluntarily depart simply affords the Attorney General—or,
in practical terms, his delegees—discretion to grant or deny
voluntary departure at the completion of the immigration pro-
ceeding to the non-citizen if he has been determined to be eli-
gible for that relief under the statute. See Bazua-Cota v.
                  GARFIAS-RODRIGUEZ v. HOLDER               12649
Gonzales, 446 F.3d 747, 748 n.1 (9th Cir. 2006) (noting that,
under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to
review the Attorney General’s discretionary decision regard-
ing voluntary departure). There are not two steps in this pro-
cess separate in time and determined by two different
government officials. Rather, the immigration judge, the
Attorney General’s delegee, both determines whether the non-
citizen has satisfied the statutory requirements for voluntary
departure and is therefore “eligible” for such relief and, at the
same time, under the authority delegated to him by the Attor-
ney General, exercises that official’s discretion to grant or
deny that relief. See 8 C.F.R. § 1240.26(c) (providing for
grant of voluntary departure by an immigration judge). If the
immigration judge determines that the non-citizen is eligible
and decides to exercise the discretionary authority to grant
relief, an order of voluntary departure is issued. In fact, there
can be no grant of voluntary departure until the Attorney Gen-
eral has exercised his discretion and decided to grant the non-
citizen that relief. The Board of Immigration Appeals (another
of the Attorney General’s delegees) may, on appeal, review
the grant of voluntary departure and may either affirm the
order or reverse it after determining either that the non-citizen
is not, in fact, eligible for that relief under the statute or that
the immigration judge improperly exercised his discretion in
granting the relief (an administrative review that, incidentally,
is not mentioned in the majority’s description of the voluntary
departure scheme). Often, however, the only and administra-
tively final decision regarding voluntary departure will be the
one made by the immigration judge, finding that the non-
citizen is eligible for such relief and exercising the Attorney
General’s discretion to “permit” the non-citizen to voluntarily
depart.

   The majority errs in converting language that does nothing
more than confer discretion on the Attorney General to grant
voluntary departure when a non-citizen is found to be eligible
for that relief into a free-floating power to terminate voluntary
departure at any time, even after the grant of that relief has
12650               GARFIAS-RODRIGUEZ v. HOLDER
become administratively final following his exercise of his
discretion. One might imagine that such broad authority pos-
sessed by the Attorney General would find ample support in
numerous precedents in our jurisprudence. It does not; nor
does the underlying reading of the statute that the majority
advances.9 The majority points to no case recognizing the
  9
   The majority offers two out-of-circuit cases to buttress its reading of
the voluntary departure statute as involving two distinct steps. Neither
does so.
   The Second Circuit’s decision in Muigai holds only that, after voluntary
departure has been granted and the time period for departing has expired,
the Attorney General (or his delegees) may make a discretionary and unre-
viewable decision whether to extend that period. Muigai v. INS, 682 F.3d
334, 337 (2d Cir. 1982). Muigai thus says nothing about the sequence of
decision-making in the ordinary administrative proceeding (that is, when
the time for voluntary departure has not expired, and thus provides no sup-
port at all for the majority’s reading of the statute. (Muigai is, of course,
even less relevant today, now that the Attorney General’s authority to
extend the voluntary departure period has been eliminated (a fact the
majority is acutely aware of). See Dada, 554 U.S. at 9-10.)
   The Tenth Circuit’s decision in Van Dinh, admittedly, does make the
distinction that the majority urges between an order by the Immigration
Judge and a later, and discretionary, decision by the Attorney General.
However, it does so in language that we have squarely recognized as dicta,
see Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 691 (9th Cir.
2003) (“this interpretation was entirely unnecessary to the Tenth Circuit’s
holding”), in support of two propositions that we have squarely rejected:
(1) that subsection (f) of the voluntary departure statute, 8 U.S.C.
§ 1229c(f), does not strip us of jurisdiction over the discretionary aspect
of the decision to deny voluntary departure, see Esquivel-Garcia v.
Holder, 593 F.3d 1025, 1030 (9th Cir. 2010) (citing that provision for the
proposition that we “lack jurisdiction to review” the Attorney General’s
“discretionary determination” regarding voluntary departure), and (2) that
8 U.S.C. § 1252(a)(2)(B)(ii)’s jurisdiction-stripping provision extends to
decisions for which the discretionary authority is not established by stat-
ute, see Kucana, 130 S. Ct. at 839-40 (“To read § 1252(a)(2)(B)(ii) to
apply to matters where discretion is conferred on the Board by regulation,
rather than on the Attorney General by statute, would ignore [ ] congres-
sional design.”); Spencer, 345 F.3d at 691. I strongly doubt the majority
wishes to reverse these well-established holdings rejecting the conse-
quences of the Tenth Circuit’s decision.
                    GARFIAS-RODRIGUEZ v. HOLDER                      12651
broad and sweeping authority it gives the Attorney General to
terminate voluntary departure after it has been finally granted.10

   The majority reads the words in the voluntary departure
statute beyond their sensible meaning, in the hope of support-
ing its dubious account of the Attorney General’s powers that
it must in order for the voluntary departure regulation to
stand. Its reading is in error, and its decision, based upon this
erroneous reading, would aggrandize the powers of the Attor-
ney General beyond even his own desired reach, in a manner
that is as unsupported as it is unwise.

                                     D.

   Another provision in the Attorney General’s regulation
raises an important question that goes unaddressed by the
majority. A subsequent portion of 8 U.S.C. § 1240.26(i) pro-
vides that a non-citizen who seeks judicial review, and whose
voluntary departure is, as a result, automatically terminated,
“will not be deemed to have departed under an order of
removal if the alien departs the United States no later than 30
  10
     The majority’s analogy to asylum highlights the very distinction
between discretion and termination that it refuses to recognize. The Attor-
ney General may, in fact, terminate a grant of asylum—not because he has
discretion to grant or deny that benefit, but because Congress has specifi-
cally authorized the Attorney General to “terminate[ ]” asylum in certain
circumstances. 8 U.S.C. § 1158(c)(2). No such authorization can be found
in the voluntary departure statute.
   The asylum cases cited by the majority do not support its argument; to
the contrary, they prove our point. The cases simply recognize that, when
the Attorney General (or one of his delegees) finds, at the end of an asy-
lum proceeding, that a non-citizen does not meet the eligibility criteria for
asylum, there is no need for him to decide in that proceeding whether the
non-citizen merits the favorable exercise of his discretion. Accordingly,
when we reverse the Attorney General’s determination regarding lack of
statutory eligibility, we must remand for him to exercise in the remanded
proceeding the discretion that he failed to exercise, but otherwise would
have, in the initial proceeding. These cases say nothing about the Attorney
General’s ability to terminate asylum after it has been granted.
12652                GARFIAS-RODRIGUEZ v. HOLDER
days following the filing of a petition for review,” id., in other
words, not later than 30 days after his entitlement to voluntar-
ily depart has automatically terminated.11 If such an individual
has not voluntarily departed,12 and has not departed pursuant
to an order of removal, what statutory provision governs his
departure, and what conditions govern his future rights and
disabilities?

   It is far from clear that the Attorney General possesses the
authority to create this new form of departure. The Attorney
General did not cite to any such authority in its rule-making
or its briefs before this court. See generally 73 Fed. Reg.
76,927 (Dec. 18, 2008) (final rule); 72 Fed. Reg. 67,674
(Nov. 30, 2007) (proposed rule). This lack of express author-
ity is troubling in light of Congress’s statement that the statu-
tory procedures governing removal are the “sole and
exclusive” procedures by which a non-citizen may be
removed from the country. 8 U.S.C. § 1229a(a)(3).

   Finally, I note that I do not read the majority opinion to
foreclose the possibility that the 30-day departure period fol-
lowing automatic termination, created as part of this new form
of departure, may be stayed. The regulation clearly intends
that we would have no authority to stay voluntary departure
  11
      A non-citizen who departs under this provision must also “provide[ ]
to DHS such evidence of his or her departure as the ICE Field Office
Director may require, and provide[ ] evidence DHS deems sufficient that
he or she remains outside of the United States.” Id.
   12
      Any grant of voluntary departure has been “terminated” automatically
upon filing of the petition for review. See Patel v. Att’y Gen., 619 F.3d
230, 234 (3d Cir. 2010) (noting lack of authority to stay voluntary depar-
ture under the new regulation because “the grant has already terminated”);
Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a
Petition for Review, 72 Fed. Reg. 67,674, 67,682 (Nov. 30, 2007) (pro-
posed rule) (“Under this rule, since the grant of voluntary departure would
be terminated automatically if the alien elects to file a petition for review,
there would no longer be any period of voluntary departure to be stayed
or tolled during the pendency of the judicial review.”).
                 GARFIAS-RODRIGUEZ v. HOLDER             12653
because, by virtue of the automatic termination, “there would
no longer be any period of voluntary departure to be stayed
or tolled during the pendency of the judicial review.” 72 Fed.
Reg. at 67,682. This logic would seem insufficient, however,
to constrain our authority with regard to the new, 30-day
departure period, which follows the automatic termination of
the voluntary departure period. As the majority concedes, we
retain equitable discretion “unless a statute clearly provides
otherwise.” United States v. Oakland Cannabis Buyers’
Coop., 532 U.S. 483, 496 (2001). The same principles that
caused us to find that voluntary departure could be stayed in
the first place might well support an argument that this new,
30-day departure period could also be stayed pending judicial
review. Because Garfias-Rodriguez sought only a stay of his
voluntary departure, however, and did not seek a stay of the
new, unacknowledged, and unnamed 30-day departure period
provided under this new form of departure, the question does
not appear to be properly presented to us at this time. It will
assuredly arise in the future, however.

                             III.

   The majority fails to recognize that there is, quite simply,
no statutory authority for the Attorney General’s regulation.
The regulation conflicts with the congressional design, as
expressed in the statutory scheme creating two distinct forms
of voluntary departure, and finds no source in the statutory
provision permitting the Attorney General to limit “eligibili-
ty” for voluntary departure. Further, there remains a serious
question regarding the Attorney General’s ability to create a
new form of departure permitting non-citizens to depart, after
their voluntary departure has terminated, without being
removed. The majority thus errs in upholding this regulation
as a legitimate exercise of the Attorney General’s power.

   I do not envy the immigration lawyer who must explain to
his client the unconscionable logic inherent in the Attorney
General’s regulation. An immigrant’s experience with our
12654               GARFIAS-RODRIGUEZ v. HOLDER
legal system is likely to be among his last—and most lasting
—impressions of our country. It hardly becomes a nation that
pledges its allegiance to providing “liberty and justice for all”
to forfeit the rights of non-citizens who do no more than seek
a decision from our court.

  I respectfully dissent.



PAEZ, Circuit Judge, joined by REINHARDT, Circuit Judge,
dissenting:

   I respectfully dissent. I agree with the en banc panel major-
ity’s conclusion in Part III(A) that the Board of Immigration
Appeals’s (“BIA”) decision in In re Briones, 24 I. & N. Dec.
355 (BIA 2007), is entitled to Chevron deference. I part com-
pany with the majority in its analysis of whether our holding
to defer to Briones should be applied retroactively. The
majority contends that, in light of the deference we owe
agency decisions under National Cable & Telecommunica-
tions Association v. Brand X Internet Services, 545 U.S. 967
(2005), “it is not clear whether we, as a judicial decision-
maker, have changed the law, or whether it is the agency that
has changed the law.”1 Maj. Op. at 12600. I do not agree. I
therefore dissent from the analysis and conclusions contained
in Parts III(B)(3) and (4) of the majority opinion.

   Brand X makes it clear that an agency cannot overrule a
judicial decision, and that a court’s first-in-time interpretation
of an ambiguous statute is binding unless and until that court
issues a judicial decision changing its rule of law in deference
to an agency’s permissible, alternative interpretation. Brand
  1
   Judge Bybee’s qualification of this statement, namely, that “it is not
clear for purposes of determining which retroactivity analysis applies
whether we or the agency effectively brought about the change in the law,”
does not alter my view. Maj. Op. at 12600 n.7 (emphasis added).
                 GARFIAS-RODRIGUEZ v. HOLDER               12655
X, 545 U.S. at 983-84. It follows from this principle that, in
deferring to Briones and overruling our holding in Acosta v.
Gonzales, 439 F.3d 550 (9th Cir. 2006), we have changed the
law of this circuit. We are bound, therefore, to follow the con-
stitutional principles applicable to Article III courts, including
“the principle that litigants in similar situations should be
treated the same, a fundamental component of stare decisis
and the rule of law generally.” James B. Beam Distilling Co.
v. Georgia, 501 U.S. 529, 537 (1991). Indeed, the Supreme
Court has admonished that “we can scarcely permit ‘the sub-
stantive law [to] shift and spring’ according to ‘the particular
equities of [individual parties’] claims’ of actual reliance on
an old rule and of harm from a retroactive application of the
new rule.” Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97
(1993) (alterations in original) (quoting Beam, 501 U.S. at
543 (Souter, J., concurring)).

   The majority’s adoption of the retroactivity analysis we
apply to an agency’s articulation of a new rule, see Montgom-
ery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982),
violates these fundamental principles. In light of our recent
decision in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011) (en banc), I would conclude that Chevron Oil Co. v.
Huson, 404 U.S. 97 (1971) supplies the proper rule of deci-
sion. Applying the Chevron Oil test, I conclude that our hold-
ing today should apply purely prospectively.

                                I.

   The Supreme Court explained in Brand X that Chevron def-
erence is owed to an agency’s interpretation of an ambiguous
statute that contradicts a court’s prior construction since agen-
cies, not courts, fill “gaps” in the statues they are charged
with administering. 545 U.S. at 992. Therefore, compelling
agencies to follow judicial interpretations would “ ‘lead to the
ossification of large portions of our statutory law,’ by preclud-
ing agencies from revising unwise judicial constructions of
ambiguous statutes.” Id. (quoting United States v. Mead
12656            GARFIAS-RODRIGUEZ v. HOLDER
Corp., 533 U.S. 218, 247 (2001) (Scalia, J., dissenting)). In
response to the dissent’s concern that the majority’s rule
would allow agencies to effectively overrule judicial deci-
sions, the Court cautioned that, where deference to an agen-
cy’s reasonable interpretation is not required,

    the court’s prior ruling remains binding law . . . .
    The precedent has not been “reversed” by the
    agency, any more than a federal court’s interpreta-
    tion of a State’s law can be said to have been “re-
    versed” by a state court that adopts a conflicting (yet
    authoritative) interpretation of state law.

Id. at 983-84 (emphasis added).

   As the foregoing passage reveals, Brand X did not alter the
fundamental balance of legislative and judicial power. It cre-
ated nothing more than a new scenario wherein a court may,
or sometimes must, change its prior rule of decision. Whether
a court adopts a new rule because of revised views about the
underlying law, because of intervening statutory changes, or
because of its duty to decide in accord with Supreme Court
precedent, its decision remains a judicial one. The same is
true when a court overrules past precedent in deference to an
agency.

                              II.

   It is axiomatic that Article III vests judicial power in the
federal courts, not in agencies, and that our decisions are
therefore constrained by its dictates. The Supreme Court’s
decisions in Harper and Beam elucidate the contours of this
principle. In Beam, a Georgia distilling company brought a
Commerce Clause challenge to an excise tax that distin-
guished between imported and local alcoholic products under
the Commerce Clause. See 501 U.S. at 532. The Supreme
Court had previously sustained a Commerce Clause challenge
to a substantially similar Hawaii statute in Bacchus Imports,
                     GARFIAS-RODRIGUEZ v. HOLDER                      12657
Ltd. v. Dias, 468 U.S. 263 (1984). Id. The Supreme Court of
Georgia agreed with the distillery that Bacchus established
that the Georgia tax violated the Commerce Clause, but
refused to apply Bacchus retroactively to afford the distillery
relief. Id. at 533. The Supreme Court granted certiorari to
consider the question of whether a rule of law, once
announced and applied to the parties to the controversy, must
be given full retroactive effect by all courts adjudicating fed-
eral law. Id. at 534.

   Although the decision did not produce a unified opinion for
the Court, a majority of Justices agreed that once a case has
announced a rule of federal law and applied “that rule with
respect to the litigants” before the court, no court may “refuse
to apply [that] rule . . . retroactively after the case announcing
the rule has already done so.” Id. at 540. In reaching this con-
clusion, the Court eschewed such “selective prospectivity”
because it results in unequal treatment of similarly situated lit-
igants, in violation of fundamental principles of judicial adju-
dication. Id. at 537-38 (“[S]elective prospectivity . . . breaches
the principle that litigants in similar situations should be
treated the same . . . . ‘We depart from this basic judicial tra-
dition when we simply pick and choose from among similarly
situated defendants those who alone will receive the benefit
of a ‘new’ rule of constitutional law.’ ”) (quoting Desist v.
United States, 394 U.S. 244, 258-259 (1969) (Harlan, J., dis-
senting)) (additional citation omitted); see also id. at 540 (not-
ing that the “equality principle, that similarly situated litigants
should be treated the same” in the criminal context “carries
comparable force in the civil context”).2 For these reasons, the
Court determined that “[t]he applicability of rules of law is
not to be switched on and off according to individual hard-
ship.” Id. Courts may, however, conduct a “generalized enqui-
ry” into “the equitable and reliance interests of parties absent
but similarly situated.” Id.
  2
  The Court also criticized the rule of selective prospectivity because it
“would only serve to encourage the filing of replicative suits[.]” Id. at 543.
12658                GARFIAS-RODRIGUEZ v. HOLDER
   In Harper, faced with a similar retroactivity question,3 the
Court “adopt[ed] a rule that fairly reflect[ed] the position of
a majority of Justices in Beam: When this Court applies a rule
of federal law to the parties before it, that rule is the control-
ling interpretation of federal law and must be given full retro-
active effect in all cases still open on direct review and as to
all events, regardless of whether such events predate or post-
date our announcement of the rule.” 509 U.S. at 96. The court
rested its holding on a line of precedent affirming, in the crim-
inal context,

     two “basic norms of constitutional adjudication.”
     First . . . that “the nature of judicial review” strips us
     of the quintessentially “legislat[ive]’ prerogative to
     make rules of law retroactive or prospective as we
     see fit. Second . . . that ‘selective application of new
     rules violates the principle of treating similarly situ-
     ated [parties] the same.”

Id. at 95 (quoting Griffith v. Kentucky, 479 U.S. 314, 322-23
(1987)). In affirming Beam’s holding and extending this prin-
ciple to the civil context, the court commented that its “ap-
proach to retroactivity heeds the admonition that ‘[t]he Court
has no more constitutional authority in civil cases than in
criminal cases . . . to treat similarly situated litigants different-
ly.” Id. at 97 (quoting Am. Trucking Ass’n, Inc. v. Smith, 496
U.S. 167, 214 (1990) (Stevens, J., dissenting)).

   The Court’s holding limited Chevron Oil to the extent that
state and lower federal courts had relied upon it to curtail the
retroactive application of rules already applied to the parties
to the case announcing the rule, in consideration of the partic-
ular equities of each case:
  3
    In Harper, the Supreme Court of Virginia refused to apply the
Supreme Court’s prior decision in Davis v. Michigan Department of Trea-
sury, 489 U.S. 803 (1989), to the parties before it, denying relief to retired
federal employees seeking refunds for state income taxes. 509 U.S. at 90-
92. The Supreme Court granted certiorari and reversed.
                    GARFIAS-RODRIGUEZ v. HOLDER                      12659
      [O]ur decision today makes it clear that “the Chev-
      ron Oil test cannot determine the choice of law by
      relying on the equities of the particular case” and
      that the federal law applicable to a particular case
      does not turn on “whether [litigants] actually relied
      on [an] old rule [or] how they would suffer from
      retroactive application” of a new one.

Id. at 95 n.8 (quoting Beam, 501 U.S. at 543 (Souter, J., con-
curring)).

                                    III.

   This precedent compels my conclusion that, as an Article
III court, we should be guided by the fundamental principles
of judicial adjudication. We may not weigh the retroactive
effect of the rule we announce today in light of the equities
of Mr. Garfias’s particular circumstances, nor may we con-
sider his individual reliance on Acosta. To do so would be
contrary to the nature of judicial review, which prohibits our
selective application of rules that we adopt, under Brand X
deference or otherwise, to the parties before us based on our
sympathies to particular litigants.4 To do so would also no
doubt threaten to encourage “replicative suits,” since parties
who have yet to file may try their hand, in the hope that we
would look more favorably upon their circumstances. Beam,
501 U.S. at 543. Where equitable considerations play a role
in our retroactivity analysis, therefore, we must conduct only
a “generalized enquiry” into “the equitable and reliance inter-
ests of parties absent but similarly situated.” Id.
  4
    I am mindful that the Court in Beam and Harper addressed the weigh-
ing of equitable and reliance interests in a particular case in a different
context, one in which a new rule of law had already been announced at
the time its application to the litigants before the court was questioned.
Nonetheless, Harper and Beam’s recitation of the fundamental principles
of judicial review cannot be lightly cast aside, and should, I believe, guide
our choice of a retroactivity principle appropriate to the judicial decision-
making we must engage in under Brand X deference.
12660              GARFIAS-RODRIGUEZ v. HOLDER
    The rule of Montgomery Ward inherently involves—indeed
requires—an individualized inquiry into the equitable and
reliance interests of the litigants. See 691 F.2d at 1333 (stating
that the third factor considers “the extent to which the party
against whom the new rule is applied relied on the former
rule” while the fourth factor considers “the degree of the bur-
den which a retroactive order imposes on a party”). For this
reason, it creates the anomalous result that similarly situated
litigants will face different resolutions of their claims where
some relied on the old rule of law to their detriment while oth-
ers did not. Indeed, even the majority acknowledges the odd
result that the Montgomery Ward rule creates. See Maj. Op.
at 12616 n.13 (“We express no opinion whether other appli-
cants may avoid the retroactive effect of Briones.”).5

   But this is not the only reason that Montgomery Ward’s
retroactivity analysis appears inappropriate to the Brand X
scenario. Montgomery Ward struck a delicate balance
between an agency’s prerogative to develop and implement
administrative policy through adjudication, and the need to
protect litigants from the unfair surprise of applying a newly
developed interpretation to their case. See 691 F.2d at 1328-
29; see also Morales-Izquierdo v. Dep’t of Homeland Sec.,
600 F.3d 1076, 1090 (9th Cir. 2010) (“Montgomery Ward and
its progeny deal with the problems of retroactivity created
when an agency, acting in an adjudicative capacity, so alters
an existing agency-promulgated rule that it deprives a regu-
lated party of the advance notice necessary to conform its
conduct to the rule.”) (citations omitted).

  In Montgomery Ward, Wards department store challenged
a Federal Trade Commission cease and desist order which
found that it had failed to comply with a rule requiring that
customers have ready access to written warranty information.
691 F.2d at 1324-26. In reviewing the Commission’s deci-
  5
    I have no doubt that judicious immigration attorneys will heed this
thinly veiled invitation to attempt a different result.
                  GARFIAS-RODRIGUEZ v. HOLDER               12661
sion, the court first considered whether the order constituted
an amendment of the rule, in which case the affected parties
were entitled to adequate notice under the Administrative Pro-
cedure Act, or a mere adjudicatory restatement of the rule
through application to unique facts. Id. at 1329. Having deter-
mined that certain portions of the order constituted a permissi-
ble interpretation of the rule, the court considered its
retroactive effect. Id. at 1332.

   The court stated that its task, in adopting the five retroactiv-
ity factors the majority now seeks to import to Brand X defer-
ence cases, was to “balanc[e] a regulated party’s interest in
being able to rely on the terms of a rule as it is written, against
an agency’s interest in retroactive application of an adjudica-
tory decision . . . .” Id. at 1333. The agency contended that its
interest in retroactive application stemmed from its “inherent
authority to interpret rules” and that any limit on the retroac-
tive application of a rule announced through adjudication
would “vitiate[ ]” the agency’s essential policymaking func-
tion. Id. at 1334. In other words, the court sought to balance
the agency’s need to engage in an evolving process of statu-
tory interpretation against the harms wrought against individ-
ual litigants who attempted to comply with the agency’s rules,
only to find that those rules were as-yet ill defined. See id. at
1328 (“ ‘Not every principle essential to the effective admin-
istration of a statute can or should be cast immediately into
the mold of a general rule. Some principles must await their
own development, while others must be adjusted to meet par-
ticular, unforeseeable situations. In performing its important
functions in these respects, therefore, an administrative
agency must be equipped to act either by general rule or by
individual order.’ ”) (quoting SEC v. Chenery Corp., 332 U.S.
194, 203 (1947)).

   These same concerns simply do not inhere in a court’s deci-
sion to overrule past precedent applying Brand X deference.
While an agency’s interpretive flexibility is essential to its
policymaking functions, stare decisis ensures the stability of
12662               GARFIAS-RODRIGUEZ v. HOLDER
judicial rules and mandates that our interpretations of statutes
do not evolve in each case via the same dialectic process. See
Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26
F.3d 375, 386 n.8 (3d Cir. 1994) (noting that the retroactivity
rationales articled in Harper and Beam “do not apply analo-
gously to administrative agency adjudications, primarily
because the doctrine of stare decisis is far less rigorous in that
. . . . [A]n agency boasts both judicial and legislative powers.
When an agency exercises its legislative powers, neither the
‘cases’ or ‘controversies’ prerequisite, nor the rule of stare
decisis, rears its head.”) (internal citations omitted); Dist.
Lodge 64, Int’l Ass’n of Machinists and Aerospace Workers
v. NLRB, 949 F.2d 441, 447 (D.C. Cir. 1991) (noting that “Ar-
ticle III grounds” such as stare decisis and the principle that
litigants in similar situation should be treated the same “are
inapplicable to administrative adjudications”); see also NLRB
v. Seven-Up Co., 344 U.S. 344, 349 (1953) (“The constant
process of trial and error, on a wider and fuller scale than a
single adversary litigation permits, differentiates perhaps
more than anything else the administrative from the judicial
process.”).6

  For these reasons, the Montgomery Ward framework is ill
suited to resolving the retroactivity questions posed by Brand
X deference.
  6
    The majority’s concession that the first Montgomery Ward factor “may
not be . . . well suited to the context of immigration law” underscores my
conclusion. Maj. Op. at 12612. As the majority explains, the first factor
“arose in the litigation-intensive context of the NLRB regulating labor dis-
putes between private parties” and “the NLRB is virtually unique among
agencies in its ‘long-standing reliance on adjudication’ and the common-
law method.” Id. While the first Montgomery Ward factor indeed may not
be well suited to the immigration law context, it is decidedly inapposite
to the retroactivity concerns facing Article III courts. For this additional
reason, therefore, I would not import the standard we apply to agency
adjudication into our Brand X retroactivity analysis.
                 GARFIAS-RODRIGUEZ v. HOLDER               12663
                              IV.

   The proper rule of decision stems not from Montgomery
Ward but from the three-factor test articulated in Chevron Oil.
Although, as the majority notes, Chevron Oil’s continued
validity has been questioned in light of Beam and Harper, we
recently reaffirmed in Nunez-Reyes v. Holder, 646 F.3d 684
(9th Cir. 2011) (en banc), that Chevron Oil retains full force
and effect “(1) in a civil case; (2) when we announce a new
rule of law, as distinct from applying a new rule that we or
the Supreme Court previously announced; (3) and when the
new rule does not concern our jurisdiction.” Id. at 691; see
also id. at 691-92 (discussing cases that call Chevron Oil’s
continuing validity into question). We must, of course, consis-
tent with Beam and Harper, apply our rule of decision either
purely prospectively or purely retroactively, and may not
engage in the “selective prospectivity” that inheres in consid-
ering the equitable and reliance interests of individual liti-
gants. See id. at 690.

   Applying the Chevron Oil factors to the case at hand, I con-
clude that the rule of Briones, which we adopt today as the
law of our circuit, should apply purely prospectively.

                               A.

   “The three Chevron Oil factors are: (1) whether the deci-
sion ‘establish[es] a new principle of law’; (2) ‘whether retro-
spective operation will further or retard [the rule’s] operation’
in light of its history, purpose, and effect; and (3) whether our
decision ‘could produce substantial inequitable results if
applied retroactively.’ ” Nunez-Reyes, 646 F.3d at 692 (quot-
ing Chevron Oil, 404 U.S. at 106-07).

  The first factor weighs against retroactivity. There is no
question that we announce a new rule of law in overruling
Acosta in deference to Briones. Nunez-Reyes, 646 F.3d at 692
(“There is no question that our decision today ‘establish[es]
12664               GARFIAS-RODRIGUEZ v. HOLDER
a new principle of law . . . by overruling clear past precedent
on which litigants may have relied.’ Lujan-Armendariz [v.
INS, 222 F.3d 728 (9th Cir. 2000)] clearly announced the rule
that equal protection required that we treat expunged state
drug convictions as we do expunged federal drug convictions.
Just as clearly, we overrule that holding today.”) (quoting
Chevron Oil, 404 U.S. at 106).7 The majority acknowledges
as much. See Maj. Op. at 12602 (“In Acosta, we issued a
binding interpretation of ambiguous provisions of the INA,
which was authoritative in this circuit at least until the agency
issued a reasonable interpretation to the contrary. If the
agency had never done so, Acosta would still be good law.”).

   The government argues that “there was no established prac-
tice or authoritative interpretation of the INA prior to
Briones” because Acosta constituted a “non-authoritative
interpretation” of the interplay between §§ 212(a)(9)(C)(i)(I)
and 245(i), and because, “[i]n light of Brand X, aliens were
on notice that Acosta’s interpretation was not authoritative
and could not have foreclosed Briones’s subsequent authorita-
tive interpretation of the statutes . . . .” Gov’t Supp. Br. at 23.
As the majority discusses in detail in Part III(B)(2) of the
opinion, these arguments are premised on the novel, and
equally unsupported notion that judicial interpretations of
ambiguous statutes are not an authoritative statement of the
law where an agency with policymaking expertise has yet to
issue its own interpretation. I agree with the majority’s
detailed analysis rejecting this argument, and do not revisit it
here. See Maj. Op. at 12601-04.
  7
     Cf. United States v. City of Spokane, 918 F.2d 84, 89 (9th Cir. 1990)
(“Our decision striking down this tax does not meet the tests of non-
retroactivity. We overrule no precedent here and we do not decide an issue
of first impression. As we have shown, our determination . . . does not
proceed from some obscure and half-formed idea only now wrested into
the light of day. Rather, it proceeds from a long, if sometimes wavy, line
of Supreme Court authority.”).
                 GARFIAS-RODRIGUEZ v. HOLDER               12665
   Moreover, I find wholly unpersuasive the government’s
contention that Brand X put undocumented immigrants on
notice that Acosta might not be the law of this circuit at some
point in the future. As the majority acknowledges, even the
BIA “equivocated over whether, post-Briones, it would acqui-
esce in our decision in Acosta.” Maj. Op. at 12603 (citing
Briones, 24 I. & N. Dec. at 371 n.9 (“We need not decide here
whether to apply our holding in the Ninth and Tenth Cir-
cuits.”)). Given that the BIA itself was unclear about the legal
landscape and the proper course to follow, it is unreasonable
to presume that undocumented immigrants would foresee the
decision that we reach today.

   For these reasons, I conclude that our decision to overrule
Acosta is a new rule of law and that this factor weighs against
retroactivity.

                               B.

   The second Chevron Oil factor is more ambiguous. We
explained in Acosta that “[t]he statutory terms of § 245(i)
clearly extend adjustment of status to aliens living in this
country without legal status. This broad statement was based
on a recognition that the statute’s purpose is to allow relatives
of permanent residents to avoid separation from their loved
ones.” 439 F.3d at 554 (internal quotation marks and citations
omitted); see also id. at 555 (“[P]enalty-fee adjustment of sta-
tus is intended to prevent the needless separation of fami-
lies.”) (citation omitted). The BIA has concluded, by contrast,
that § 245(i) was not intended to make adjustment of status
available to recidivist offenders. See Briones, 24 I. & N. Dec.
at 365-67. As the Supreme Court explained in Brand X, the
BIA’s “decision to construe th[e] statute differently . . . does
not say that [our] holding was legally wrong. Instead, the
[BIA] may . . . choose a different construction, since the
agency remains the authoritative interpreter (within the limits
of reason) . . . .” 545 U.S. at 983.
12666            GARFIAS-RODRIGUEZ v. HOLDER
   In light of these two alternative, yet correct, interpretations
of § 245(i)’s purpose, it is unclear whether retroactive appli-
cation will further the rule’s operation. Nonetheless, because
we owe deference to the BIA’s reasonable interpretation of
§ 245(i), I conclude that this factor weighs in favor of retroac-
tivity.

                               C.

   The third factor, like the first, weighs against retroactivity.
Our precedent suggests that, in the usual case, where the first
factor is met, so is the third, because inequity necessarily
results from litigants’ reliance on a past rule of law. See Holt
v. Shalala, 35 F.3d 376, 380-81 (9th Cir. 1994) (finding the
third Chevron Oil factor to be met “for the same reasons” as
the first, since inequity would result from applying the new
rule retroactively to the class of litigants who “reasonably
relied on this Court’s previous rule”); see also Nunez-Reyes,
646 F.3d at 692-93 (discussing inequities resulting from the
court’s abandonment of clear past precedent under the first
Chevron Oil factor and stating that these inequities compel
the conclusion that the third factor weighs against retroactiv-
ity since “[i]t would be manifestly unfair effectively to hood-
wink aliens into waiving their constitutional rights on the
promise of no legal consequences and, then, to hold retroac-
tively that their convictions actually carried with them the
‘particularly severe “penalty” ’ of removal”) (citation omit-
ted).

   More fundamentally, there is little question that our deci-
sion, if applied retroactively, could produce substantial ineq-
uitable results for the class of undocumented immigrants who
applied for adjustment of status in reliance on Acosta. Depor-
tation, particularly for an undocumented immigrant with a
United States citizen spouse, is among the harshest of out-
comes, rending families and threatening permanent separation
from loved ones. Cf. Nunez-Reyes, 646 F.3d at 693 (“For
those aliens who relied on Lujan-Armendariz, . . . ‘[t]he
                  GARFIAS-RODRIGUEZ v. HOLDER               12667
potential for unfairness in the retroactive application’ of
today’s decision ‘is significant and manifest.’ ”) (quoting INS
v. St. Cyr, 533 U.S. 289, 323 (2001) (alteration in original)).
The Supreme Court has described deportation as a “harsh
measure,” INS v. Cardoza-Fonseca, 480 U.S. 421, 448
(1987), that “may result in loss of . . . all that makes life worth
living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

   In our own circuit, we have held that the third Chevron Oil
factor was met where a change in the statute of limitations
would have barred the cause of action, Duncan v. Sw. Air-
lines, 838 F.2d 1504, 1507-08 & n.4 (9th Cir. 1987), where
a change in the rules regarding preservation of issues for
appeal would have deprived litigants of the right to appeal,
States v. Givens, 767 F.2d 574, 577-79 (9th Cir.), cert. denied,
474 U.S. 953 (1985), and where a change in the law would
have expanded the scope of potential criminal liability, United
States v. Goodheim, 651 F.2d 1294, 1297-98 (9th Cir. 1981),
abrogated on other grounds as recognized by United States v.
Mulloy, 3 F.3d 1337, 1340 n.2 (9th Cir. 1993). Compare Gib-
son v. United States, 781 F.2d 1334, 1339 (9th Cir. 1986)
(“The final Chevron factor weighs dispositively against retro-
active application, for it would yield substantial inequitable
results to hold that the respondent slept on his rights at a time
when he could not have known the time limitation that the
law imposed upon him.”) (internal quotations and citation
omitted), with Orozco v. United Air Lines, Inc., 887 F.2d 949,
953 (9th Cir. 1989) (finding that substantial injustice would
not result from application of de novo, rather than arbitrary
and capricious, standard of review to plan administrator’s
benefits determination, and therefore that the third Chevron
Oil factor was not met). In my view, deportation, at a mini-
mum, has a potential for injustice comparable to those events
at issue in Duncan, Givens, and Goodheim.

  For these reasons, I find that the third factor weighs decid-
edly against retroactivity.
12668            GARFIAS-RODRIGUEZ v. HOLDER
                               D.

   Balancing the factors, I conclude that the rule we adopt
today should not apply retroactively. “The first criterion is the
most important. It is ‘the threshold test for determining
whether or not a decision should be applied nonretroactive-
ly.’ ” Jackson v. Bank of Haw., 902 F.2d 1385, 1390 (9th Cir.
1990) (quoting United States v. Johnson, 457 U.S. 537, 550
n.12 (1982)). The third factor, likewise, appears from our pre-
cedent to carry great weight, on balance, in the court’s ulti-
mate determination. See Int’l Ass’n of Machinists and
Aerospace Workers v. Aloha Airlines, Inc., 790 F.2d 727, 736
(9th Cir. 1986) (“Although the second Chevron Oil factor
does favor retroactivity because it promotes the prompt reso-
lution of labor disputes, the strength of the considerations
relating to the first and third factors outweighs those relating
to the second factor in this case.”); cf. NLRB v. Buckley
Broad. Corp. of California, 891 F.2d 230, 234 (9th Cir. 1989)
(giving dispositive weight to the third factor, noting, “Buck-
ley’s argument fails under the third factor. There is no possi-
bility of an inequitable result from retroactive application of
the Board’s new standard because the new standard works to
Buckley’s advantage.”).

   Our decision to overrule Acosta amounts to a complete
reversal of a settled rule of law upon which a vulnerable class
of litigants reasonably and detrimentally relied. The equities
tip heavily in their favor, since those who sought adjustment
of status in reliance on Acosta will face deportation if our rule
applies retroactively. Though the second factor weighs in
favor of retroactivity, in light of the strength of the first and
third factors, I conclude that the rule of Briones should apply
in this circuit purely prospectively.

                               V.

  For these reasons, I respectfully dissent. The rule of Chev-
ron Oil, not Montgomery Ward, should govern our retroactiv-
                    GARFIAS-RODRIGUEZ v. HOLDER                      12669
ity analysis in Brand X deference cases. Applying that rule
here, our decision should apply prospectively, and Garfias’s
petition should be granted.8




  8
   Because I would grant the petition, I have no occasion to address the
merits of Garfias’s challenge to the automatic termination of the BIA’s
grant of voluntary departure, addressed in Part III(C) of the majority opin-
ion. Were I required to do so, I would agree with Judge Reinhardt’s con-
clusion that 8 C.F.R. § 1240.26(i) is not “a permissible exercise of the
Attorney General’s authority to interpret the voluntary departure statute.”
Reinhardt dissent at 12644. I therefore join his dissent.
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