                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


AURELIO DURAN GONZALES; MARIA            No. 09-35174
C. ESTRADA ; MARIA LUISA
MARTINEZ DE MUNGUIA ; IRMA                 D.C. No.
PALACIOS DE BANUELOS; LUCIA             2:06-cv-01411-
MUNIZ DE ANDRADE; KARINA                     MJP
NORIS; ADRIANA POUPARINA ,
              Plaintiffs-Appellants,
                                         ORDER AND
                 v.                       OPINION

U.S. DEPARTMENT OF HOMELAND
SECURITY and JANET NAPOLITANO ,
Secretary of the Department of
Homeland Security,
               Defendants-Appellees.


     Appeal from the United States District Court
        for the Western District of Washington
   Marsha J. Pechman, Chief District Judge, Presiding

               Argued and Submitted
    September 21, 2011—San Francisco, California

                 Filed March 29, 2013

   Before: William C. Canby, Jr., Barry G. Silverman,
       and Consuelo M. Callahan, Circuit Judges.
2    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

                            Order;
                  Opinion by Judge Silverman;
                   Dissent by Judge Callahan


                           SUMMARY*


                           Immigration

    The panel ordered withdrawn its original October 25,
2011 opinion, published at 659 F.3d 930, and filed a
superseding opinion and a new dissent, in plaintiffs’ appeal
of the district court’s dismissal of their action seeking to
adjust status and waive inadmissibility.

    In the superseding opinion, the panel vacated the district
court’s judgment and orders denying plaintiffs’ motions to
amend class certification and to file an amended complaint,
following remand in Duran Gonzales v. Department of
Homeland Security, 508 F.3d 1227 (9th Cir. 2007) (“Duran
Gonzales I”), which held that plaintiffs were ineligible to
adjust status because they were not eligible to receive I-212
waivers because the requisite ten-year period had not elapsed
since they last departed from the United States. The panel
remanded for reconsideration of plaintiffs’ motions to amend
to add a challenge to the retroactive application of Duran
Gonzales I, in light of the new retroactivity test set forth in
the intervening en banc decision in Garfias-Rodriguez v.
Holder, 702 F.3d 504 (9th Cir. 2012).


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY             3

    Dissenting, Judge Callahan would affirm the district
court’s dismissal of petitioners’ case. She would find that
this court’s adoption of a new rule in 2012 in the unrelated
case Garfias-Rodriguez does not change the retroactivity of
the original 2007 opinion in this case. Judge Callahan would
rather hold that under the prudential law-of-the-case doctrine,
Duran Gonzales I remains retroactive and applicable to
petitioners.


                         COUNSEL

Matt Adams (argued), Northwest Immigrant Rights Project,
Seattle, Washington; Trina Realmuto, Beth Werlin, American
Immigration Law Foundation, Washington, D.C.; Marc Van
Der Hout, Stacy Tolchin, Van Der Hout, Brigagliano &
Nightingale, LLP, San Francisco, California, for Plaintiffs-
Appellants.

Elizabeth J. Stevens (argued) and Sherease Pratt, United
States Department of Justice, Washington, D.C.; Priscilla To-
Yin Chan, Office of the United States Attorney, Seattle,
Washington, for Defendant-Appellees.


                          ORDER

   The opinion filed on October 25, 2011, 659 F.3d 930, is
withdrawn. A superseding opinion and dissent will be filed
concurrently with this order. The Petition for Rehearing En
Banc filed on December 9, 2011 is denied as moot.
4   GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

                         OPINION

SILVERMAN, Circuit Judge:

    Plaintiff-Appellants are Aurelio Duran Gonzales and six
other Mexican citizens. Each of these aliens was previously
deported or removed and then subsequently reentered the
United States without inspection. From within the United
States, these individuals applied for an adjustment of status
and an I-212 waiver of their inadmissibility due to their
previous removal and unlawful reentry. Plaintiffs construed
Ninth Circuit law at the time as permitting them to seek such
a waiver, notwithstanding the statutory requirement that ten
years elapse between an alien’s last departure from the United
States and his or her waiver application. See Perez-Gonzalez
v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). They filed suit to
challenge the application of the ten-year requirement to deny
them waivers.

    After our decision in Perez-Gonzalez, however, the Board
of Immigration Appeals had in fact disagreed with aspects of
that decision and construed the statutory scheme to require
satisfaction of the ten-year requirement, even for I-212
waiver applicants already unlawfully present in the United
States. On the first appeal in this matter, we deferred to the
BIA’s reasonable statutory interpretation, citing National
Cable & Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967, 981–85 (2005). Duran Gonzales v.
DHS, 508 F.3d 1227, 1235–39, 1242 (9th Cir. 2007) (“Duran
Gonzales I”). Ninth Circuit law thereby became consistent
with the agency’s position.

    On remand, rejecting Plaintiffs’ objections and motions,
the district court concluded the BIA’s rule would have full
    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY               5

retroactive effect, denied motions to amend the complaint and
class definition as futile, and dismissed this class action. We
affirmed this ruling in October 2011, but stayed the mandate
pending the resolution of en banc proceedings in Garfias-
Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).
Ultimately, that decision changed the retroactivity test for
cases in which Brand X mandates deference to an agency’s
statutory interpretation, even if there is a contrary prior Ninth
Circuit case. Because the mandate never issued for our
opinion on this appeal and there has been an intervening
change in authority, we decline to apply the putative law of
the case, vacate the district court’s judgment, and remand for
reconsideration of the motions to amend the complaint and
class definition in light of the new retroactivity test set forth
in Garfias-Rodriguez.

                      BACKGROUND

    Plaintiffs were all previously deported or removed and
then unlawfully reentered the United States. After returning
to the United States, they filed applications for adjustment of
status under 8 U.S.C. § 1255. That statute “allowed the
Attorney General to adjust the status of an alien who had
entered the United States without inspection to that of a legal
permanent resident provided that the alien (1) was admissible
to the United States and the beneficiary of an immediately
available immigrant visa, and (2) paid an application fee five
times the usual fee.” Duran Gonzales I, 508 F.3d at 1230.

    Plaintiffs’ path to adjustment of status was complicated
by two provisions of the Illegal Immigration Reform and
Immigration Responsibility Act of 1996. The first appeared
to deny Plaintiffs relief. 8 U.S.C. § 1231(a)(5) provides “for
automatic reinstatement of an alien’s prior removal or
6       GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

deportation order when an alien has reentered the United
States illegally,” and further provides that “‘the alien is not
eligible and may not apply for any relief’ from removal.”
Duran Gonzales I, 508 F.3d at 1230 (quoting 8 U.S.C.
§ 1231(a)(5)).

    The second section suggested a possible exception to this
bar. Although 8 U.S.C. § 1182(a)(9)(C)(i)(II) renders
inadmissible any previously removed alien “who enters or
attempts to reenter the United Sates without being admitted,”
Section 1182(a)(9)(C)(ii) creates an exception for:

          an alien seeking admission more than 10 years
          after the date of the alien’s last departure from
          the United States if, prior to the alien’s
          reembarkation at a place outside the United
          States or attempt to be readmitted from a
          foreign contiguous territory, the Secretary of
          Homeland Security has consented to the
          alien’s reapplying for admission.

8 U.S.C. § 1182(a)(9)(C)(ii). Two apparent requirements for
this exception became the subject of litigation in this Circuit:
(1) that the application be made from outside the United
States; and (2) that the alien request the waiver more than ten
years after his or her last departure from the United States.1

   Plaintiffs sought Form I-212 waivers of inadmissibility
pursuant to 8 U.S.C. § 1182(a)(9)(C)(ii) and 8 C.F.R. § 212.2
from within the United States, and applications for


    1
    A recent decision interprets the ten-year bar to require the alien to
spend ten years outside the United States. Carrillo de Palacios v. Holder,
No. 09-72059, 2013 W L 310387, at *6 (9th Cir. Jan. 28, 2013).
       GONZALES V . U.S. DEP’T OF HOMELAND SECURITY                      7

adjustment of status under 8 U.S.C. § 1255(i). United States
Citizenship and Immigration Services denied three of the
Plaintiffs’ applications on the ground that the ten-year period
had not elapsed since the dates of the applicants’ last
departures from the United States. 2                8 U.S.C.
§ 1182(a)(9)(C)(ii). Allegedly, Plaintiffs took these steps to
secure waivers in reliance on our opinion in Perez-Gonzalez
v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). Perez-Gonzalez
held that an alien could apply for a Form I-212 waiver from
within this country: “[T]he INS committed legal error when
it concluded that Perez-Gonzalez could not apply for a Form
I-212 waiver from within this country.” 379 F.3d at 789.
Perez-Gonzalez also “concluded that an alien who was
inadmissible under section 212(a)(9)(C)(i) of the Act could
apply for a waiver under 8 C.F.R. § 212.2 even though the
alien’s last departure from the United States occurred . . . less
than 10 years prior to the date of his request for consent to
reapply for admission.” Matter of Torres-Garcia, 23 I. & N.
Dec. 866, 876 (BIA 2006) (citing Perez-Gonzalez, 379 F.3d
at 794 n.10); see also Duran Gonzales I, 508 F.3d at 1241.

    In January 2006, the Board of Immigration Appeals ruled
in Matter of Torres-Garcia that individuals such as Plaintiffs
were not eligible for relief, since an I-212 waiver of
inadmissibility requires the alien’s compliance with the
statutory “ten-year bar,” even if that alien is applying from
within the United States. 23 I. & N. Dec. at 876; Morales-
Izquierdo v. DHS, 600 F.3d 1076, 1079 (9th Cir. 2010)



   2
     Our 2007 decision in this case stated that: “The I-212 waiver
application is pending in four of the cases and has been denied, along with
the adjustment of status applications, in the remaining three cases.”
Duran Gonzales I, 508 F.3d at 1231.
8        GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

(citation and quotation marks omitted).3 DHS subsequently
issued a “memorandum direct[ing] field officers that an alien
inadmissible under § 212(a)(9)(C) could not file for consent
to reapply until that alien had lived abroad for 10 years.”
Gonzalez v. DHS, No. C06-1411-MJP, 2009 WL 302283, at
*2 (W.D. Wash. Feb. 6, 2009). In September 2006, Plaintiffs
filed suit to challenge this memorandum as a violation of
Perez-Gonzalez and sought injunctive and declaratory relief,
a temporary restraining order, and class certification.
Gonzalez v. DHS, No. C06-1411-MJP, 2009 WL 506848, at
*2 (W.D. Wash. Feb. 27, 2009).4 The district court certified
Plaintiffs’ proposed class and issued a preliminary injunction.
Gonzales v. DHS, 239 F.R.D. 620, 627, 629 (W.D. Wash.
2006).



    3
        The BIA reasoned:

             Perez-Gonzalez allows an alien to obtain a section
             212(a)(9)(C)(ii) waiver nunc pro tunc even though such
             a waiver would have been unavailable to him had he
             sought it prospectively, thereby placing him in a better
             position by asking forgiveness than he would have been
             in had he asked permission. Such an interpretation
             c o ntra d icts th e clear lan g u ag e o f se c tion
             212(a)(9)(C)(ii) and the legislative policy underlying
             section 212(a)(9)(C) generally. W e find that the more
             reasonable interpretation of the statutory framework
             discussed above is that an alien may not obtain a waiver
             of the section 212(a)(9)(C)(i) ground of inadmissibility,
             retroactively or prospectively, without regard to the
             10-year limitation set forth at section 212(a)(9)(C)(ii).

Matter of Torres-Garcia, 23 I. & N. Dec. at 876.

  4
    In both of these 2009 district court case captions, Duran Gonzales’s
surname is misspelled.
    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY              9

    The government filed an interlocutory appeal, and in
Duran Gonzales I, we held that, pursuant to the Supreme
Court’s decision in Brand X, 545 U.S. at 981–85, we were
compelled to follow the BIA’s 2006 opinion in Torres-
Garcia. In Brand X, the Supreme Court “held that the circuit
court must apply Chevron deference to an agency’s
interpretation of a statute regardless of the circuit court’s
contrary precedent, provided that the court’s earlier precedent
was an interpretation of a statutory ambiguity.” Duran
Gonzales I, 508 F.3d at 1235–36 (citing Brand X, 545 U.S. at
980–82). In our 2007 opinion in Duran Gonzales I, we held
that because the BIA’s Torres-Garcia ruling was a “clearly
reasonable” interpretation of a statute by the agency charged
with interpreting and enforcing the statute, and because our
prior opinion in Perez-Gonzalez was based on the statute’s
ambiguity, Brand X required that we defer to the BIA’s
interpretation. Id. at 1237–39, 1242. Our opinion stated that,
“[p]ursuant to In re Torres-Garcia, plaintiffs as a matter of
law are not eligible to adjust their status because they are
ineligible to receive I-212 waivers.”           Id. at 1242.
Accordingly, we vacated the district court’s injunction and
remanded the matter. Id. at 1242–43.

    Plaintiffs filed a petition for rehearing and suggestion for
rehearing en banc which included an argument that the
opinion should not be applied retroactively. The panel denied
the petition for rehearing, a majority of the active judges
declined the suggestion for rehearing en banc, and our
mandate issued in January 2009, over a year after the opinion
was filed.

   On remand, Plaintiffs sought to prevent the retroactive
application of Duran Gonzales I to class members whose I-
212 waiver applications were filed prior to that decision and
10 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

in purported reliance on preexisting Ninth Circuit precedent.
Gonzalez, 2009 WL 302283, at *4; Gonzalez, 2009 WL
506848, at *4. To this end, they filed a motion to amend the
complaint to add a challenge to Duran Gonzales I’s
retroactive application as well as a motion to amend the class
definition and narrow it to a subset of the certified class. Id.
at *3. In the first of a pair of orders, the district court held
that Duran Gonzales I was binding and denied Plaintiffs’
motion for provisional class certification and preliminary
injunctive relief. Gonzalez, 2009 WL 302283, at *4. It
rejected Plaintiffs’ argument against retroactivity because
“[t]he Circuit Court stated conclusively that the BIA’s
interpretation of the statute applied to Plaintiffs,” and held
that “[t]he retroactive application of Torres Garcia is simply
not an open question before this Court.” Id. The district
court proceeded to deny Plaintiffs’ motions to amend the
class definition and for leave to file an amended complaint as
futile because neither amendment could change the
presumptive retroactive effect of Duran Gonzales I.
Gonzalez, 2009 WL 506848, at *4. The court then dismissed
the action. Id. Plaintiffs timely appealed, arguing that Duran
Gonzales I should be given prospective effect only.

    On October 25, 2011, we issued Duran Gonzales II, the
original version of this opinion, expressly holding that Duran
Gonzales I would have full retroactive effect. Duran
Gonzales v. DHS, 659 F.3d 930, 939–41 (9th Cir. 2011)
(“Duran Gonzales II”). However, we stayed the mandate
pending the resolution of the en banc proceedings in Garfias-
Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).
Ultimately, that en banc decision issued and set forth a
different test for retroactivity in Brand X cases, the multi-
factor inquiry articulated in Montgomery Ward & Co., Inc. v.
FTC, 691 F.2d 1322, 1333 (9th Cir. 1982). Garfias-
    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 11

Rodriguez, 702 F.3d at 517–20. The government urges us to
apply the law-of-the-case doctrine and hold that Duran
Gonzales I has already settled the retroactivity question for
this case. We reject that argument and hold that the
intervening en banc decision in Garfias-Rodriguez requires
us to withdraw our prior opinion, vacate the district court’s
judgment, and remand the case for further proceedings. The
district court must decide in the first instance whether or not
Plaintiffs’ dual motions to amend are still futile in light of this
Court’s adoption of the Montgomery Ward retroactivity test
for cases in which Brand X compels our deference to an
agency’s statutory interpretation.

   JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction pursuant to 28 U.S.C. § 1291.
Although the district court’s denial of leave to amend is
reviewed for abuse of discretion, Gardner v. Martino,
563 F.3d 981, 990 (9th Cir. 2009), as is an order on class
certification, Parra v. Bashas’, Inc., 536 F.3d 975, 977 (9th
Cir. 2008), the essence of Plaintiffs’ appeal is that the district
court erred in holding that Duran Gonzales I applied to them.
This underlying conclusion of law is reviewed de novo. See
Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647,
650 (9th Cir. 2007).

                        DISCUSSION

    A. Whether Duran Gonzales I May Be Retroactively
       Applied Under Garfias-Rodriguez and Montgomery
       Ward.

   This brings us to the question of whether Duran Gonzales
I may still be retroactively applied in light of Garfias-
12 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

Rodriguez. Duran Gonzales I did not expressly address
retroactivity. Instead, the panel merely stated that Plaintiffs
“as a matter of law are not eligible to adjust their status
because they are ineligible to receive I-212 waivers.”
508 F.3d at 1242. But reaching this conclusion did not
explicitly resolve the retroactivity question, and retroactivity
was clearly presented to us on this second appeal, which
resulted in an initial opinion affirming the retroactive
application of Duran Gonzales I.5 Citing Harper v. Virginia
Department of Taxation, 509 U.S. 86, 97–98 (1993), we
stated that “[b]ecause this court applied its holding in [Duran
Gonzales I] to the parties before it, the ruling is retroactive.”
Duran Gonzales II, 659 F.3d at 939. We added that even if
Duran Gonzales I could not be read as “clearly holding that
it had retroactive application (by applying its ruling to the
parties before it), the fact that [Duran Gonzales I] did not
otherwise ‘reserve the question whether its holding should be
applied to the parties before it’ would be dispositive.” Id.
(quoting Harper, 509 U.S. at 97–98).

    Our recent en banc opinion in Garfias-Rodriguez adopts
a different test for retroactivity that is now the law of the
Ninth Circuit. Although recognizing that when we decided
Duran Gonzales I, the controlling Supreme Court rule held




  5
    Again, by a separate order, issued concurrently herewith, we have
withdrawn that prior opinion.
       GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 13

that retroactive application was the presumptive norm,6
Garfias-Rodriguez adopted a different approach, holding:

          [W]hen we overturn our own precedent
          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 [& Co., Inc. v FTC,
          691 F.2d 1322, 1333 (9th Cir. 1982)] if the
          issue is fairly raised by the parties.

702 F.3d at 520. Garfias-Rodriguez held that such instances
of Brand X deference must be treated as “if the agency had
changed its own rules,” id. at 516, and thus changed the
presumptive norms for cases such as this one to “allow[] us
to take into account the intricacies of a Brand X problem.”
Id. at 518. We explained that in applying the Montgomery
Ward test, “we have done so on a case-by-case basis, for
example, by analyzing whether a petitioner actually relied on



 6
     W e noted:

          The Supreme Court has emphasized that retroactive
          application is the presumptive 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 currently
          pending. Id. at 96–97.

Garfias-Rodriguez, 702 F.3d at 517 (parallel citations omitted).
14 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

a past rule, or by concluding that retroactivity as applied is
impermissible.” Id. at 519 (emphasis in original).

  We then proceeded to apply the five-factor Montgomery
Ward test to Garfias-Rodriguez himself. The factors include:

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

Id. at 518 (quoting Montgomery Ward, 691 F.2d at 1333).
We nonetheless concluded that Garfias-Rodriguez was not
entitled to relief because the balance of factors favored the
government. Id. at 523.

    Plaintiffs argue that we should apply Garfias-Rodriguez
to their case, vacate the district court’s dismissal of their
action, and remand the case to the district court to apply the
Montgomery Ward test in the first instance.
    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 15

   B. The Law-of-the-Case Doctrine Will Not Be
      Applied Here Where There Has Been An
      Intervening Change in Authority.

    Before we can apply the Montgomery Ward test to
Plaintiffs, we must consider whether the holding in Garfias-
Rodriguez should be applied to this case. The government
argues that the law-of-the-case doctrine should be invoked to
preclude its application here. We disagree.

    In this context, the prudential law-of-the-case doctrine
precludes one panel of an appellate court from reconsidering
questions which have already been decided on a prior appeal
in the same case. Hegler v. Borg, 50 F.3d 1472, 1475 (9th
Cir. 1995). However, we have noted that there are exceptions
to this prudential rule:

       Although an appellate panel’s observance of
       the doctrine is discretionary, a prior decision
       should be followed unless (1) the decision is
       clearly erroneous and its enforcement would
       work a manifest injustice, (2) intervening
       controlling authority makes reconsideration
       appropriate, or (3) substantially different
       evidence was adduced at a subsequent trial.

Id. Having announced a retroactivity test for Brand X cases
that is at odds with the analytical framework invoked in
Duran Gonzales I, we are compelled to conclude that the
legal change effected by Garfias-Rodriguez falls squarely
within the second exception for “intervening controlling
16 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

authority.”7 Accordingly, we will not apply the law-of-the-
case doctrine to bar application of Garfias-Rodriguez.

     C. Application of The Montgomery Ward Test on
        Remand

    We have withdrawn our prior opinion on this appeal and
hereby vacate the district court’s judgment. We will not
decertify the class, since no such motion was made below.
Instead, upon remand, the government will have an
opportunity to file such a motion, if it so chooses. Plaintiffs
will also have an opportunity to re-file any motions to amend
the complaint and the class definition, as well as any motion
for a preliminary injunction, if they so choose. If these
motions are filed, the district court shall reconsider whether
amendments to the complaint and class definition are still
futile in light of the Montgomery Ward test and Federal Rule
of Civil Procedure 23’s requirements for class actions.

    We express no opinion on the viability of any claims or
any class or subclass definitions under the analytical
framework announced in Garfias-Rodriguez–i.e., whether the
Montgomery Ward factors can be adjudicated on a class-wide
basis. Particularly given the stage of this litigation and the
fact that the record has not been fully developed, as in




 7
   The withdrawn panel decision from this second appeal relied in part on
Morales-Izquierdo, 600 F.3d at 1089, which rejected the application of the
multi-factor Montgomery Ward test for retroactivity where the courts defer
to the BIA’s interpretation of a statute. Duran Gonzales II, 659 F.3d at
935–36 & n.3. That case and our reliance on it were expressly overruled
by the en banc court in Garfias-Rodriguez. 702 F.3d at 516.
      GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 17

Garfias-Rodriguez,8 it would not be proper for us to apply
that test in the first instance. Cf. Local Joint Exec. Bd. of
Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,
244 F.3d 1152, 1161 (9th Cir. 2001) (holding that where “the
factual record is sufficiently well developed . . . we may
evaluate for ourselves whether the provisions of Rule 23 have
been satisfied” and no remand is necessary).

                         CONCLUSION

    The district court’s judgment is VACATED, and this case
is REMANDED for further proceedings consistent with this
opinion.



CALLAHAN, Circuit Judge, dissenting:

    In 2007, we held that petitioners “as a matter of law are
not eligible to adjust their status because they are ineligible to
receive I-212 waivers.” Duran Gonzales v. DHS, 508 F.3d
1227, 1242 (9th Cir. 2007) (“Duran Gonzales I”). In January
2009, we denied petitioners’ request for rehearing and
rehearing en banc, which included an argument that our
opinion should not be applied retroactively; our mandate
issued on January 23, 2009. In October 2011, we issued an
opinion reiterating that Duran Gonzales I had full retroactive
effect, Duran Gonzales v. DHS, 659 F.3d 93 (9th Cir. 2011),
and petitioners filed a petition for rehearing and rehearing en
banc. Thereafter, in October 2012, we issued an en banc

  8
   See also Carrillo de Palacios, 2013 W L 310387, at *4–5 (applying
Montgomery Ward test to petitioner’s case where complete administrative
record was available on petition for review of a BIA decision).
18 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

opinion in Garfias-Rodriguez, 702 F.3d 504 (9th Cir. 2012),
adopting a new rule for retroactivity in certain cases. I
respectfully disagree with my colleagues that our adoption of
a new rule in 2012 in an unrelated case changes the
retroactivity of our 2007 opinion. Rather, I would hold that
under the prudential law-of-the-case doctrine, Duran
Gonzales I remains retroactive and applicable to the
petitioners.

                              I

    The prudential law-of-the-case doctrine precludes one
panel of an appellate court from reconsidering questions that
have already been decided on a prior appeal in the same case.
In Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995), we
explained:

       “Under the law of the case doctrine, one panel
       of an appellate court will not as a general rule
       reconsider questions which another panel has
       decided on a prior appeal in the same case.”
       Merritt v. Mackey, 932 F.2d 1317, 1320 (9th
       Cir. 1991) (internal quotations and brackets
       omitted). Although an appellate panel’s
       observance of the doctrine is discretionary, a
       prior decision should be followed unless (1)
       the decision is clearly erroneous and its
       enforcement would work a manifest injustice,
       (2) intervening controlling authority makes
       reconsideration appropriate, or (3)
       substantially different evidence was adduced
       at a subsequent trial. Id. The doctrine,
       however, applies only to issues considered
       and actually decided by the first court. United
    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 19

       States v. Cote, 51 F.3d 178, 181 (9th Cir.
       1995).

We reiterated our understanding of the doctrine in Ranchers
Cattlemen Action Legal Fund United Stockgrowers of
America v. U.S. Department of Agriculture, 499 F.3d 1108,
1114 (9th Cir. 2007), stating:

       [T]he district court should abide by “the
       general rule” that our decisions at the
       preliminary injunction phase do not constitute
       the law of the case. See id.; see also City of
       Anaheim v. Duncan, 658 F.2d 1326, 1328 n.2
       (1981). Any of our conclusions on pure
       issues of law, however, are binding. See This
       That And The Other Gift And Tobacco, Inc. v.
       Cobb County, 439 F.3d 1275, 1284–85 (11th
       Cir. 2006); 18 Charles Alan Wright & Arthur
       R. Miller, Federal Practice and Procedure
       § 4478.5 (2002) (“A fully considered
       appellate ruling on an issue of law made on a
       preliminary injunction appeal . . . become[s]
       the law of the case for further proceedings in
       the trial court on remand and in any
       subsequent appeal.”).

    The prudential considerations underlying the law-of-the-
case doctrine support its application here. In Christianson v.
Colt Industries Operating Corp., 486 U.S. 800, 815–16
(1988), the Supreme Court noted that:

       “As most commonly defined, the doctrine [of
       the law of the case] posits that when a court
       decides upon a rule of law, that decision
20 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

        should continue to govern the same issues in
        subsequent stages in the same case.” Arizona
        v. California, 460 U.S. 605, 618, 103 S. Ct.
        1382, 1391, 75 L. Ed.2d 318 (1983) (dictum).
        This rule of practice promotes the finality and
        efficiency of the judicial process by
        “protecting against the agitation of settled
        issues.” 1B J. Moore, J. Lucas, & T. Currier,
        Moore’s Federal Practice ¶ 0.404[1], p. 118
        (1984).

                               II

     Duran-Gonzales was decided in 2007. Its holding is
clear: “plaintiffs as a matter of law are not eligible to adjust
their status because they are ineligible to receive I-212
waivers.” 508 F.3d at 1242. There is no reasonable argument
that the decision was not clear and dispositive. Indeed, the
district court properly found it to be clear and dispositive, and
it has been cited by numerous courts.

   Although the majority relies on the second exception in
Hegler to jettison the law-of-the-case doctrine in this case,
none of the three exceptions require or justify such a course.
See Hegler, 50 F.3d at 1475.

    First, the decision in Duran Gonzales I is not clearly
erroneous, nor will its enforcement work a manifest injustice.
Garfias-Rodriguez, 702 F.3d at 511, affirmed Duran
Gonzales I’s underlying decision to apply the BIA’s decision
in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006),
rather than the Ninth Circuit’s prior opinion in Perez-
Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).
Moreover, Garfias-Rodriguez recognizes that Duran
    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 21

Gonzales I properly applied the then-applicable standard for
retroactivity. Garfias-Rodriguez, 702 F.3d at 517. Citing
such Supreme Court cases as Chevron Oil Co. v. Huson,
404 U.S. 97 (1971), and Harper v. Virginia. Department of
Taxation, 509 U.S. 86 (1993), the en banc opinion noted:

       The Supreme Court has emphasized that
       retroactive application is the presumptive
       norm, and implied that any exceptions to this
       rule must be narrow. Harper, 509 U.S. at
       95–96, 113 S. Ct. 2510. 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
       currently pending. Id. at 96–97, 113 S. Ct.
       2510.

Garfias-Rodriguez, 702 F.3d at 517. The opinion then
explicitly states that it is adopting a “new rule” that it
believed to be a “better fit for this situation,” where National
Cable & Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967 (2005) (“Brand X”), mandates
deference to an agency’s statutory interpretation, that is
contrary to a prior Ninth Circuit opinion. Id. at 518. Thus,
Garfias-Rodriguez does not suggest that either the substantive
decision in Duran Gonzales I or its retroactive application
was “clearly erroneous.”

    Nor does a review of Garfias-Rodriguez’s application of
the multi-factor inquiry in Montgomery Ward & Co. v. FTC,
691 F.2d 1322, 1333 (9th Cir. 1982), suggest that applying
Duran Gonzales I’s substantive holding to the petitioners
“would work a manifest injustice.” Hegler, 50 F.3d at 1475.
22 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

In Garfias-Rodriguez, we applied the Montgomery Ward
criteria to Garfias-Rodriguez and concluded that he did not
qualify for relief. Garfias-Rodriguez, 702 F.3d at 523.
Because the policies behind the application of the criteria are
similar for both cases, the result here is likely to be the same.
As in Garfias-Rodriguez, the second and fifth factors favor
the government. Id. at 521–23. In light of the government’s
interpretation of the underlying statutes, the support for that
position by other circuit courts, and the BIA’s decision in
Torres-Garcia, Duran Gonzales I was neither “an abrupt
departure from well established practice” nor a “complete
surprise.” Id. at 521. Also, the statutory interest in applying
the new rule is at least as great here as in Garfias-Rodriguez,
which recognized that “non-retroactivity impairs the
uniformity of a statutory scheme and the importance of
uniformity in immigration law is well established.” Id. at
523. Assuming that here, as in Garfias-Rodriguez, the first
factor does not apply,1 and the fourth factor – the degree of




  1
     In Garfias-Rodriguez, we noted that the first factor – whether the
particular case is one of first impression – “may not be as well suited to
the context of immigration law,” and noted that 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.” 702 F.3d at
521. However, if the first factor is applied, it favors the government
because the agency has consistently held that an alien could not apply for
reinstatement from within the United States within ten years of having
been removed. Thus, neither Perez-Gonzalez nor Duran Gonzales I was
a case of first impression, but rather represented different stages in the
continuing dialogue between the agency and the Ninth Circuit.
       GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 23

burden – favors petitioners,2 they would have to make a
strong showing on the second factor, reliance, just to balance
the factors. But petitioners would be hard pressed to make
such a showing.3 The opinion in Garfias-Rodriguez suggests
that incurring an additional filing fee and disclosing one’s
illegal presence in the United States may not constitute
reliance. See 702 F.3d at 522; see also Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 44–46 (2006).4 Thus, it does not


 2
     In Garfias-Rodriguez, we noted:

          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 [v. Gonzales], 500 F.3d [941], 952
          (quoting INS v. St. Cyr, 533 U.S. 289, 325, 121 S. Ct.
          2271, 150 L. Ed.2d 347 (2001)). Furthermore,
          “deportation alone is a substantial burden that weighs
          against retroactive application of an agency
          adjudication.” Id.

702 F.3d at 523.

 3
   Our opinion in Garfias-Rodriguez notes that the “second and the third
factors are closely intertwined,” and that “[w]e 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 be a complete surprise.” 702 F.3d at 521 (citation
and internal quotation marks omitted).

 4
     The Supreme Court commented:

          [I]t is the conduct of remaining in the country after
          entry that is the predicate action; the statute applies to
          stop an indefinitely continuing violation that the alien
          himself could end at any time by voluntarily leaving the
          country. It is therefore the alien’s choice to continue
24 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

appear that maintaining Duran Gonzales I’s retroactivity
would work a “manifest injustice.”

     The third Hegler exception does not apply because no
trial was held on remand. Moreover, petitioners’ effort on
remand to challenge Duran Gonzales I’s retroactive effect
and to narrow the class did not present “substantially different
evidence.” Hegler, 50 F.3d at 1475.

    The majority, however, reasons in just a single sentence,
that the second Hegler exception is met. It states: “Having
announced a retroactivity test for Brand X cases that is at
odds with the analytical framework invoked in Duran
Gonzales I, we are compelled to conclude that the legal
change effected by Garfias-Rodriguez falls squarely within
the second exception for ‘intervening controlling authority.’”
Maj. at 15–16.

    But Garfias-Rodriguez is not an “intervening controlling
authority.” First, it comes after the issuance of our mandate
in Duran Gonzales I. Second, as noted, Garfias-Rodriguez
accepted that the court should defer to the intervening




        his illegal presence, after illegal reentry and after the
        effective date of the new law, that subjects him to the
        new and less generous legal regime, not a past act that
        he is helpless to undo up to the moment the
        Government finds him out.

548 U.S. at 44.
         GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 25

agency’s decision.5 702 F.3d at 511. Thus, Garfias-
Rodriguez agrees with the substance of Duran Gonzales I.
Indeed, Garfias-Rodriguez accepted the Board of
Immigration Appeals decision in In re Briones, 24 I. & N.
Dec. 355, 371 (BIA 2007), and held that it was reasonable
and entitled to deference.6 702 F.3d at 514.

   The en banc court then applied its ruling to Garfias-
Rodriguez and in doing so adopted a new rule. But Garfias-


 5
     The en banc court explained:

           [W ]e 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.
           W e 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 ambiguity. Id. at
           1237–38; see Brand X, 545 U.S. at 982, 125 S. Ct.
           2688. W e concluded that the BIA’s interpretation of
           § 212(a)(9)(C)(i)(II) in Torres–Garcia was “clearly
           reasonable and is therefore entitled 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.

702 F.3d at 511.

     6
      The en banc opinion states: “W e conclude 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
otherwise.” Garfias-Rodriguez, 702 F.3d at 514.
26 GONZALES V . U.S. DEP’T OF HOMELAND SECURITY

Rodriguez says nothing about the law-of-the-case doctrine,
and does not indicate that it was to be applied retroactively to
past instances in which the Ninth Circuit had deferred to an
intervening agency decision pursuant to Brand X.7 Rather, in
light of the facts that the application of the new standard did
not result in any relief to Garfias-Rodriguez, and that five
judges took exception to the majority opinion in five different
opinions, it seems questionable that the six judges in the
majority contemplated that the new standard they were
adopting would be applied retroactively. If they had, one
would have expected them to so indicate. Instead, they held
that the Montgomery Ward standard was to be applied on a
case-by-case basis where the issue is fairly raised.8 702 F.3d
at 519–20.

    Here, the retroactivity of Duran Gonzales I is not fairly
raised. Duran Gonzales I stated that, as a matter of law,
petitioners were “not eligible to adjust their status because
they are ineligible to receive I-212 waivers.” 508 F.3d at
1242. Petitioners sought rehearing and rehearing en banc, but
their request was denied and our mandate issued on January
23, 2009. That should have been the end of the matter.


  7
    Garfias-Rodriguez did not present a law-of-the-case issue because
there was no final decision by the Ninth Circuit. Although a three-judge
panel had initially denied Garfias-Rodriguez’s claim for relief, Garfias-
Rodriguez v. Holder, 649 F.3d 942, 953 (9th Cir. 2011), that opinion never
became final and was superseded by our grant of rehearing en banc. See
Garfias-Rodriguez v. Holder, 672 F.3d 1125 (9th Cir. 2011).

  8
    The direction that the Montgomery Ward standard is to be applied
case-by-case raises questions as to whether a class action can be
maintained when a relief turns on the application of the individualized
inquiry set forth in Montgomery Ward. The majority leaves it to the
district court to wrestle with this issue in the first instance.
    GONZALES V . U.S. DEP’T OF HOMELAND SECURITY 27

Petitioners, however, persisted in reiterating their arguments
concerning retroactivity both in the district court and this
court until, well after we had issued an opinion denying their
second appeal, their argument found favor in another case
concerning another statute.

    Petitioners’ persistence may be admirable, but this is
precisely the type of situation that is covered by the law-of-
the-case doctrine. Otherwise, the orderly development of the
law will be inhibited as panels may be reluctant to make
adjustments for fear they will undermine prior final decisions.
Also, parties will be encouraged to follow petitioners’ lead
and continually raise already-decided issues in the hope that
during the resulting delay some decision will issue that
supports their perspective.

    The prudential concerns underlying the law-of-the-case
doctrine should be controlling where, as here, the question is
whether a new Ninth Circuit opinion in a separate and distinct
case, which adopts a new rule of retroactivity, should apply
to a ruling that has been final for years. Petitioners, whose
claims were determined to be barred as a matter of law in
Duran Gonzales, now find themselves fortuitously again
before the Ninth Circuit. Because I would find that
petitioners’ situation does not come within any of the three
exceptions to the law-of-the-case doctrine that we recognized
in Hegler, 50 F.3d at 1475, I would hold that our 2012
decision in Garfias-Rodriguez does not change the
retroactivity of our 2007 opinion in Duran Gonzales I.
Accordingly, I would affirm the district court’s dismissal of
petitioners’ case.
