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

                           FOR THE TENTH CIRCUIT                        March 30, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JULIO CESAR VALDEZ-RODRIGUEZ,

             Petitioner,

v.                                                         No. 14-9550
                                                       (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      Petitioner Julio Cesar Valdez-Rodriguez 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 (BIA) holding

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

with the BIA’s decision and deny his petition for review.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   BACKGROUND

      The pertinent facts are not in dispute. Mr. Valdez-Rodriguez resided illegally

in the U.S. from 1995 to 2000. He left the country in February 2000, but illegally

reentered the same month. In 2002, based on his marriage to a U.S. citizen, he was

granted an adjustment of status to a lawful permanent resident (LPR) under 8 U.S.C.

§ 1255(i).1 In 2004, this LPR status was rescinded on the ground that, having

illegally reentered the U.S. after a prior period of illegal presence exceeding a year,

he was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) and therefore was ineligible

for the adjustment of status pursuant to § 1255(i)(2)(A) (alien must be “admissible to

the United States for permanent residence” to qualify for adjustment of status). See

8 U.S.C. § 1256(a) (providing for rescission of adjusted status if within five years it

appears the alien “was not in fact eligible for such adjustment of status” when it was

granted). He did not seek review of that action. But, as discussed below, he did seek

reinstatement of his adjusted status in these ensuing removal proceedings.

      The proper interplay has not always been clear between § 1255(i)(1)(A)(i)’s

allowance of adjustment of status for aliens who “entered the United States without

inspection” and § 1255(i)(2)(A)’s requirement that the alien seeking the adjustment

be “admissible to the United States for permanent residence”—a requirement that is

facially not met by any alien who, like Mr. Valdez-Rodriguez, reentered the country


1
       Section 1255(i) permits the Attorney General to adjust the status of certain
aliens notwithstanding their illegal entry without inspection into the U.S.


                                          -2-
without inspection in violation of § 1182(a)(9)(C)(i)(I). When removal proceedings

began against Mr. Valdez-Rodriguez in Texas in July 2006, the Fifth and Tenth

Circuits took opposing positions on whether aliens inadmissible under

§ 1182(a)(9)(C)(i)(I) were still eligible for adjustment of status under § 1255(i).

The Tenth Circuit had recently held such aliens remained eligible under § 1255(i),

see Padilla-Caldera v. Gonzales, 453 F.3d 1237, 1239, 1243-44 (10th Cir. 2005)

(Padilla I), disapproved in later appeal by Padilla-Caldera v. Holder, 637 F.3d 1140

(10th Cir. 2011) (Padilla II), while the Fifth Circuit held they did not, see

Mortera-Cruz v. Gonzales, 409 F.3d 246, 248, 256 (5th Cir. 2005). Hence it was

significant that Mr. Valdez-Rodriguez relocated to Oklahoma City within the Tenth

Circuit and then secured a change of venue to Oklahoma in December 2006. Shortly

thereafter, he appeared before an Immigration Judge (IJ), admitted removability, and

indicated that he would seek reinstatement of his adjusted status as an LPR (although,

as noted below, he waited several years to file an application).

      After some delays, including several continuances at Mr. Valdez-Rodriguez’s

request, the matter was heard by an IJ in April 2011. By then, two significant

interrelated events had occurred. First, the BIA issued a published decision holding

that inadmissibility under § 1182(a)(9)(C)(i)(I) rendered an alien ineligible for

adjustment of status under § 1255(i). See In re Briones, 24 I. & N. Dec. 355, 371

(BIA 2007). Second, the Tenth Circuit reconsidered its position in light of Briones

and, giving deference to the BIA’s authoritative construction of the relevant statutory


                                          -3-
provisions, now held that inadmissibility under § 1182(a)(9)(C)(i)(I) resulted in

ineligibility under § 1255(i). See Padilla II, 637 F.3d at 1152. Thus, when it came

time to resolve Mr. Valdez-Rodriguez’s request for reinstatement of his adjusted

status as an LPR, controlling precedent of the BIA and this circuit precluded his

eligibility for such relief. He attempted to avoid this result by challenging the

allegedly retroactive use of that precedent, arguing that the precedent was erroneous

and should be overruled, and seeking equitable remedies barring its application to his

case. After the IJ rejected these efforts in fairly summary fashion, the BIA addressed

them at greater length and likewise rejected them. This petition for review followed.

                                      ANALYSIS

      A large portion of Mr. Valdez-Rodriguez’s appellate briefing is devoted to

criticizing Padilla II and its reliance on Briones for deviating from Padilla I. The

panel in Padilla II fully justified its divergence from Padilla I, explaining that it was,

in effect, answering a different question. Padilla II dealt with the deference owed

Briones’ construction of ambiguous statutory provisions; Padilla I had been an initial

effort to construe the same provisions directly, without the benefit of an authoritative

agency decision to which to defer. Here, we face the same issue already resolved by

Padilla II and, absent superseding en banc review or Supreme Court decisions, we

are in no position to address arguments directed at the merits of the reasoning in

Padilla II. See Rezaq v. Nalley, 677 F.3d 1001, 1012 n.5 (10th Cir. 2012). It is

worth noting, however, that “[o]ther circuits have uniformly deferred to Briones and


                                           -4-
Torres-Garcia[2] when considering the interplay between § 1182(a)(9)(C) and

§ 1255(i).” Nunez-Moron v. Holder, 702 F.3d 353, 356 & n.6 (7th Cir. 2012)

(collecting cases).

      Mr. Valdez-Rodriguez contends that the rule of Padilla II should not apply

retroactively to his case. The government notes that, ordinarily, judicial “[d]ecisions

of statutory interpretation are fully retroactive, because they do not change the law,

but rather explain what the law has always meant.” United States v. Rivera-Nevarez,

418 F.3d 1104, 1107 (10th Cir. 2005). But in an en banc opinion involving the same

statutory provisions, the Ninth Circuit recently held that the case-by-case

retroactivity analysis traditionally used for administrative decisions—which does not

proceed from a presumption favoring retroactivity—should apply when, as here, an

extant judicial interpretation of a statute is altered in deference to an intervening

agency interpretation. See Garfias-Rodriguez v. Holder, 702 F.3d 504, 515-20

(9th Cir. 2012) (en banc). We need not take a definitive position on that point

to decide this case, because, as we explain next, the BIA rejected

Mr. Valdez-Rodriguez’s retroactivity argument using the traditional case-by-case

administrative-retroactivity analysis and we discern no error in its determination.



2
       A year before Briones, the BIA held in In re Torres-Garcia, 23 I. & N. Dec.
866, 876 (BIA 2006), that aliens inadmissible under § 1182(a)(9)(C)(i)(II) were not
eligible for adjustment under § 1255(i). Subsections 1182(a)(9)(C)(i)(I) & (II) are
thus now treated the same for purposes of § 1255(i). Nunez-Moron v. Holder,
702 F.3d 353, 356 n.5 (7th Cir. 2012) (citing Briones, 24 I. & N. Dec. at 367).


                                           -5-
      The BIA first noted its general rule that applications for relief are governed by

the law in force at the time a final determination is made, which in this case was after

Briones and Padilla II were decided.3 It then analyzed whether following this rule

imposed an impermissible retroactive disadvantage on Mr. Valdez-Rodriguez under

the five-factor test for retroactive application of administrative decisions set out in

Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982):

      (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 reliance of a party on the old standard.

R. at 5.4 It explained that application of Padilla I was not required under this test:

             In the case before us, as noted, at its commencement and during
      much of the early part of the proceedings, jurisdiction in this case was
      with the Fifth Circuit where the case [Mr. Valdez-Rodriguez] seeks to
      apply was not controlling precedent. Further, while in 2011, the Tenth
      Circuit departed from the law of Padilla I supra, this area of law was

3
        Indeed, Mr. Valdez-Rodriguez did not even formally submit his application for
reinstatement of adjusted status until the hearing before the IJ on April 4, 2011, see
R. at 126, 196-203, 287-90—weeks after this court issued Padilla II and years after
the BIA decided Briones. It would thus appear a strong case could be made that
these decisions were applied only prospectively—not retroactively—to deny his
application. Nevertheless, the BIA did not note this deficiency in his retroactivity
objection, so we do not rely on it to affirm the BIA. See Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006) (noting we will not affirm the BIA on grounds
it did not invoke).
4
      This court adopted the same test, derived from Retail, Wholesale and
Department Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972), in Stewart
Capital Corp. v. Andrus, 701 F.2d 846, 848 (10th Cir. 1983).


                                           -6-
      not settled and there was no well-established practice or application of
      the holding of Padilla I. This area of law was not settled until the
      Board published Matter of Briones, supra. Further, although the
      respondent notes he hired an attorney to pursue his case, he has not
      presented any evidence of significant reliance on the rule set down in
      Padilla I, supra. Although he now seeks to benefit from Padilla I,
      supra, at the time of his original application for adjustment of status in
      2001, he did not acknowledge his past illegal presence. He, therefore,
      did not rely on the possibility of adjustment under [§ 1255(i)] despite
      having been illegally in the United States for over 1 year prior to a
      departure.

R. at 5. We agree with this assessment. We also note that the Ninth Circuit reached

the same conclusion applying the Montgomery Ward test to its own post-Briones

re-interpretation of the relevant statutes in Garfias-Rodriguez, 702 F.3d at 520-23.

      Finally, Mr. Valdez-Rodriguez argues that the BIA abused its discretion in

refusing to let him apply for reinstatement of his adjusted status nunc pro tunc to the

date of his first adjustment application or some other date during the proceedings

before interpretation of the relevant statutes precluded him from adjusting his status.

The BIA noted that the agency had not been responsible for his failure to apply for

adjustment at a more favorable time,5 and deemed use of the nunc pro tunc remedy

inappropriate to circumvent the congressional directive precluding adjustment of
5
       Mr. Valdez-Rodriguez states that a government attorney affirmatively told him
and his counsel that they could not revive his prior application, but the transcript
passage cited merely states that the government “fail[ed] to inform him of his
available remedies.” R. at 180. As to that passive complaint, he has provided no
authority for holding the government obligated to inform him of potential relief under
Padilla I while it remained this circuit’s precedent. The BIA acknowledged that an
IJ should inquire as to possible relief available to an alien, but noted that by the time
the matter came before the IJ for hearing in 2011, relief was no longer available
under Padilla I. See R. at 4.


                                          -7-
status for aliens who are inadmissible under § 1182(a)(9)(C)(i), as now construed.6

R. at 4 (following In re Torres-Garcia, 23 I. & N. Dec. at 874-76). Other circuits

have upheld this administrative judgment, see, e.g., Nunez-Moron, 702 F.3d at 357;

Sarango v. Att’y Gen., 651 F.3d 380, 387 (3d Cir. 2011); Ramirez v. Holder,

609 F.3d 331, 337 n.7 (4th Cir. 2010), and we do so as well.

      The petition for review is denied.

                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Chief Judge




6
       An alien barred by operation of § 1182(a)(9)(C)(i) does have one means of
curing his inadmissibility. Section 1182(a)(9)(C)(ii) states that the bar “shall not
apply to 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.” (Emphasis added). Mr. Valdez-Rodriguez contends the BIA erred in
considering him ineligible for this relief because he had spent the years following his
last departure (in 2000) within the U.S., not outside the U.S., as required by
§ 1182(a)(9)(C)(ii). The BIA’s ruling is consistent with both the statutory language
and our precedent. See Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 885 (10th Cir.
2005) (noting § 1182(a)(9)(C)(ii) requires “completion of an unwaivable ten-year
period outside of the United States”). Mr. Valdez-Rodriguez’s reference to special
allowances made in this regard for certain aliens in the Violence Against Women Act
is inapposite, for reasons explained in Nunez-Moron, 702 F.3d at 357 n.8.


                                           -8-
