                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 19 2013

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



                              FOR THE NINTH CIRCUIT


CARITINA DIAZ-CASTANEDA and                       No. 10-70633
PORFIRIO LOPEZ-LOPEZ,
                                                  Agency Nos. A078-740-900
              Petitioners,                                    A078-740-903

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

              Respondent.


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

                             Submitted September 19, 2013**
                                    Portland, Oregon

Before: PREGERSON and WARDLAW, Circuit Judges, and SEDWICK, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable John W. Sedwick, District Judge for the U.S. District
Court for Alaska, Anchorage, sitting by designation.
      Caritina Diaz-Castaneda (Diaz) and Porfirio Lopez-Lopez (Lopez)

(collectively Petitioners), husband and wife and natives and citizens of Mexico,

appeal the Board of Immigration Appeals’s (BIA) published decision affirming an

Immigration Judge’s (IJ) denial of their applications for adjustment of status under

INA § 245(i), 8 U.S.C. § 1255(i). We have jurisdiction under 8 U.S.C. § 1252, and

we deny the petition for review.

      The BIA’s published decision concludes that Petitioners are ineligible to

adjust status under INA § 245(i) because both are inadmissible under INA §

212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I). Matter of Diaz-Castaneda, 25 I.

& N. Dec. 188 (BIA 2010). This subsection of the INA renders inadmissible any

alien who is unlawfully present in the United States for an aggregate period of

more than one year, departs the United States, and subsequently reenters the

country without authorization. Petitioners argue for application of our prior

decision in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), which held that

aliens who are inadmissible under INA § 212(a)(9)(C)(i)(I) are nevertheless

eligible to adjust under INA § 245(i).

      We have recently rejected the applicability of Acosta in this context,

however. See generally Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012)

(en banc). In Garfias-Rodriguez, we addressed the BIA’s decision in In re


                                          2
Briones, 24 I. & N. Dec. 355 (BIA 2007), in which the Board declined to follow

the reasoning of Acosta and concluded that “recidivist immigration violators” who

are inadmissible under INA § 212(a)(9)(C)(i)(I) may not adjust under § 245(i). Id.

at 370. We held in Garfias-Rodriguez that the BIA’s conclusion in Briones is a

permissible construction of the statute entitled to deference under Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984), and that the BIA’s Briones

decision supplants our previous holding to the contrary in Acosta under the

reasoning of Nat’l Cable and Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S.

967 (2005). Garfias-Rodriguez, 702 F.3d at 512-14.

      Although Ninth Circuit and BIA precedent have become much less favorable

during the pendency of their petition, Petitioners offer no evidence to support the

argument that they have therefore been deprived of their due process right to be

heard “at a meaningful time and in a meaningful manner.” Matthews v. Eldridge,

424 U.S. 319, 333 (1976) (internal quotation omitted). There is no evidence that

the BIA or IJ unnecessarily or deliberately delayed adjudicating Petitioners’

adjustment applications out of a desire to subject them to unfavorable changes in

the law.

      Furthermore, Garfias-Rodriguez controls our analysis of whether the BIA’s

decision in Briones should be applied retroactively to Petitioners. See Garfias-


                                          3
Rodriguez, 702 F.3d at 520 (holding that “when 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. v.

FTC, 691 F.2d 1322 (9th Cir. 1982)]”).1 The reasoning of Garfias-Rodriguez in

applying Montgomery Ward dictates the outcome here. Like Garfias, Petitioners

initially applied for adjustment of status before Acosta was decided, and the

proceedings in Petitioners’ case unfolded against a continuously shifting backdrop

of general legal uncertainty about the interaction between § 245(i) and §212

(a)(9)(C)(i)(I), undermining the notion that they acted in justified reliance on

Acosta. See Garfias-Rodriguez, 702 F.3d at 522-23. And while deportation is a

significant burden for Petitioners to bear, the same was true in Garfias-Rodriguez,

where we nonetheless held that the government’s interest in maintaining

      1
          Montgomery Ward’s retroactivity analysis requires courts to inquire:

      (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.

Garfias-Rodriguez, 702 F.3d at 518 (internal citations omitted).

                                           4
uniformity in the application of immigration law militated in favor of retroactive

application. See id. at 523. There is no factual basis to distinguish Petitioners’

situation from the one presented in Garfias-Rodriguez for purposes of applying

Montgomery Ward. Thus, because we are bound by Garfias-Rodriguez, we

conclude that the BIA’s decision in Briones applies to Petitioners, rendering them

ineligible for adjustment under § 245(i).2

      Petition DENIED.




      2
       Petitioners argue that we should remand their petitions to the BIA so that
they may file new adjustment applications as ten years have passed since their
most recent unlawful reentry. We do not address the merits of this argument
because the proper avenue for relief is to file a motion to reopen with the BIA,
which Petitioners are free to do. See Kalilu v. Mukasey, 548 F.3d 1215 (9th Cir.
2008).

                                             5
Diaz-Castaneda v. Holder, No. 10-70633

PREGERSON, Circuit Judge, dissenting:                                       FILED
      I dissent. Here, unlike in Garfias-Rodriguez, the Montgomery WardSEP 19 2013

                                                                       MOLLY and
                                                                             C. DWYER, CLERK
retroactivity analysis does not support applying Briones. The second, third,COURT OF APPEALS
                                                                        U.S.


fourth factors all weigh heavily in favor of Petitioners.1

      Given the specific facts and timing of this case, the second and third

Montgomery Ward factors weigh in favor of Petitioners. Unlike in Garfias-

Rodriguez, Petitioners here in their motion to reopen their case specifically relied

on Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), which holds that INA

§ 212(a)(9)(C)(i)(II) does not bar adjustment of status under INA § 245(i).

Further, the Immigration Judge was prepared to grant the Petitioners adjustment in

a hearing on January 10, 2008. By the time the case was remanded to the IJ


      1
       The Montgomery Ward retroactivity test considers:
             (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.
      Garfias-Rodriguez v. Holder, 702 F.3d 504, 518 (9th Cir. 2012) (internal
      citations omitted).

                                           1
following his erroneous application of the fugitive entitlement doctrine, however,

the Ninth Circuit had overruled Perez-Gonzalez. Accordingly, the IJ determined

that Petitioners were no longer eligible for adjustment under § 245(i).

      Moreover, the fourth factor also weighs in favor of Petitioners. As the

majority points out, deportation is a significant burden here, as it was in Garfias-

Rodriguez. But here, the burden is even higher because of the IJ’s initial legal

error. Had the IJ not erroneously applied the fugitive entitlement doctrine, Acosta

v. Gonzales, 439 F.3d 550 (9th Cir. 2006), which holds that § 212(a)(9)(C)(i)(I)

does not bar § 245(i) eligibility, would have controlled Petitioners’ case and they

would have received § 245(i) relief. Instead, the IJ’s erroneous decision resulted in

a delay of almost two years. This makes the burden of deportation now especially

heavy.

      Briones should not apply retroactively in this case. I would grant the

petition. Therefore, I dissent.




                                           2
