                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                           FOR THE TENTH CIRCUIT                         November 10, 2015
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
RODOLFO MOLINA MUNOZ,

      Petitioner,
                                                            No. 14-9575
v.                                                      (Petition for Review)

LORETTA E. LYNCH, United States
Attorney General,†

      Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

      Petitioner Rodolfo Molina Munoz has been ordered removed for unlawful

presence in the United States. He does not challenge his removability, but he does

seek review of an order of the Board of Immigration Appeals (the BIA) finding that

he is ineligible for an adjustment of status that would forestall his removal. We agree

with Mr. Munoz that his reliance on this court’s precedent in applying for an

adjustment of status precludes the BIA from applying its own subsequent decision


      †
       In accordance with Federal Rule of Appellate Procedure 43(c)(2), Loretta E.
Lynch is substituted for Eric H. Holder Jr. as the respondent in this action.
      *
        This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
10th Circuit Rule 32.1.
retroactively to Mr. Munoz’s application. We therefore grant Mr. Munoz’s petition

for review and remand the case to the BIA for further proceedings consistent with

this decision.

                                I.     BACKGROUND

       The pertinent facts are not in dispute. Mr. Munoz resided illegally in the

United States beginning sometime in 1971. He briefly departed the United States and

returned without inspection in October 2003.

       The dispute in this case centers around two conflicting provisions of the

Immigration and Nationality Act (the INA). One provision of the INA, 8 U.S.C.

§ 1182(a)(9)(C)(i)(I), deems inadmissible those aliens, like Mr. Munoz, who remain

in the United States unlawfully for more than one year, leave the country, and

subsequently enter or attempt to reenter without being admitted. Another provision, 8

U.S.C. § 1255(i), invests the Attorney General with discretion to adjust the status of

an alien to that of a lawful permanent resident if the alien meets certain criteria,

including that the alien is currently admissible. The INA does not expressly state

whether aliens who meet the criteria set forth in § 1255(i) are nevertheless ineligible

for adjustment of status if they fall within the category of aliens described in

§ 1182(a)(9)(C)(i)(I).

       In 2005, this court decided Padilla-Caldera v. Gonzales (Padilla-Caldera I),

453 F.3d 1237 (10th Cir. 2005), holding that an alien who would otherwise be

deemed inadmissible by § 1182(a)(9)(C)(i)(I) may nonetheless seek adjustment of

status under § 1255(i). Padilla-Caldera I, 453 F.3d at 1244. On April 30, 2007, in

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reliance upon Padilla-Caldera I, Mr. Munoz applied for adjustment of his status to

lawful permanent resident status.

      While Mr. Munoz’s application for adjustment of status was pending, the BIA

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

concluded, contrary to our Padilla-Caldera I decision, that an alien who is

inadmissible under § 1182(a)(9)(C)(i)(I) cannot qualify for an adjustment of status

under § 1255(i) absent a waiver of inadmissibility (which is not at issue here). 24 I.

& N. Dec. at 370–71. After significant delay, the United States Citizenship and

Immigration Services denied Mr. Munoz’s application for adjustment of status in

light of Briones. The Department of Homeland Security then placed Mr. Munoz in

removal proceedings. Mr. Munoz admitted to the allegations against him and

conceded removability but renewed his application for adjustment of status on the

ground that Padilla-Caldera I controlled his case.

      While these removal proceedings were pending, this court decided Padilla-

Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140 (10th Cir. 2011), in which we

deferred to the BIA’s construction of the relevant statutory provisions as mandated

by National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545

U.S. 967 (2005). Padilla-Caldera II, 637 F.3d at 1152–53. We accordingly reversed

the rule announced in Padilla-Caldera I, instead holding inadmissibility under

§ 1182(a)(9)(C)(i)(I) precludes an adjustment of status under § 1125(i). Id. In light of

Briones and Padilla-Caldera II, the Immigration Judge pretermitted Mr. Munoz’s

application and ordered him removed from the United States. Mr. Munoz appealed to

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the BIA, which dismissed his appeal, holding Padilla-Caldera II and Briones

governed his case. This petition for review followed.

                                  II.    DISCUSSION

       Mr. Munoz argues the BIA improperly applied Briones retroactively to his

application for adjustment of status. We agree. We recently decided De Niz Robles v.

Lynch, --- F.3d ---, No. 14-9568, 2015 WL 6153073 (10th Cir. Oct. 20, 2015), in

which we held that the BIA’s decision in Briones could not be applied retroactively

to an alien situated similarly to Mr. Munoz. De Niz Robles controls the outcome here.

       As a general rule, legislative enactments are given only prospective effect,

while judicial decisions are also given retroactive effect. Id. at *3–4. Newly

promulgated agency rules, due their affinity to legislation, are also given only

prospective effect. Id. at *5. De Niz Robles addressed the question of whether an

agency adjudication like the BIA’s decision in Briones, and our subsequent deferral

to that decision in Padilla-Caldera II, should be given retroactive or only prospective

effect. Id. at *6–7. We concluded the BIA’s decision in Briones “should be treated no

different[ly] from a new agency rule announced by notice-and-comment rulemaking

. . . for purposes of retroactivity analysis.” Id. at *7 (alteration and omission in

original) (internal quotation marks omitted).

       Thus, De Niz Robles instructs us to “balance[] the costs and benefits associated

with giving retroactive effect to agency adjudications” on a case-by-case basis

through application of the five-factor test derived from Stewart Capital Corp. v.



                                             4
Andrus, 701 F.2d 846 (10th Cir. 1983). Id. at *10 (alteration in original) (internal

quotation marks omitted).

      These factors are (1) whether the case is one of first impression; (2)
      whether the new rule is an abrupt departure from well-established
      practice or merely an attempt to fill a void in an unsettled area of law;
      (3) whether and to what extent the party against whom the new rule is
      applied relied on the former rule; (4) whether and to what extent the
      retroactive order imposes a burden on a party; and (5) whether and to
      what extent there is a statutory interest in applying a new rule despite
      reliance of a party on an old standard.

Farmers Tel. Co. v. F.C.C., 184 F.3d 1241, 1251 (10th Cir. 1999) (internal quotation

marks and brackets omitted).

      De Niz Robles applied these factors and thus provides the answer to many of

these inquiries with respect to the retroactive application of Briones. There, we

concluded the first factor is generally irrelevant in the context of removal

proceedings. De Niz Robles, 2015 WL 6153073, at *10. We also rejected the BIA’s

argument that it was merely filling a void in the law and concluded Briones was an

“abrupt departure” from existing judicial precedent. Id. Regarding the fourth and fifth

factors, we determined these factors addressed the “balance of comparative harms”

between requiring the BIA to consider an application for adjustment of status and

depriving an alien of the opportunity to have that application considered—resulting

in the alien’s certain deportation—and concluded these factors weigh heavily in favor

of the alien in this context. Id. at *12. The same reasoning applies to these factors in

Mr. Munoz’s case, and we accordingly conclude they weigh against retroactive

application of Briones here.


                                            5
       We are thus left with only the third factor, evaluating Mr. Munoz’s individual

reliance on our decision in Padilla-Caldera I. With respect to this factor, there is

little doubt Mr. Munoz relied on our decision in Padilla-Caldera I at the time he filed

his application for adjustment of status. After we decided Padilla-Caldera I and

before the BIA decided Briones, an alien in Mr. Munoz’s position “possessed two

lawful options to secure permanent residency in this country—file a petition for

adjustment of status under Padilla-Caldera I or leave the country and begin the

waiting period.” Id. at *11. Mr. Munoz “relied on Padilla-Caldera I in choosing the

first course.” See id. The BIA argues Mr. Munoz’s reliance on Padilla-Caldera I was

“risky at best” because the judicial interpretation of these statutes was “subject to

[BIA] revision.” But we rejected in De Niz Robles the argument that “a party cannot

reasonably rely on a judicial decision whenever its interpretation of the law is

foreseeably subject to ‘revision’ by an executive agency.” Id. Rather, we concluded,

even where an agency or the legislature may foreseeably reenter the field and revise

the statute, “the people may rely on the law as it is, so long as it is, including any of

its associated judicial interpretations.” Id.

       The BIA also calls into question Mr. Munoz’s reliance interest by arguing the

“detriment and burden he has suffered is the impairment of his ability to avoid the

consequences of his continuing immigration violation—an impairment which merits

little solicitude.” But we observed in De Niz Robles that Padilla-Caldera I did not

purport to invest aliens with a right to remain in the country illegally. Id. at *2 n.2.

Rather, we considered the right at issue to be the “limited statutory right” “to file a

                                                6
petition for adjustment of status” and thereby seek “the possibility of relief.” Id. We

conclude that Mr. Munoz seeks to vindicate, and the BIA seeks to retroactively

withdraw, this same right. We therefore reject the argument Mr. Munoz has not

suffered a detriment adequate to support his claim of reliance on Padilla-Caldera I.

      We conclude the relevant factors weigh against the retroactive application of

Briones to Mr. Munoz’s application for adjustment of status. We therefore grant

Mr. Munoz’s petition for review of the BIA’s decision and remand for further

proceedings.

                                III.   CONCLUSION

      The petition for review is granted and the case remanded to the BIA for further

proceedings consistent with this decision.

                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




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