Jorge Velasquez-Garcia v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-2610

JORGE ARGENIS VELÁSQUEZ-GARCÍA,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A 097 563 851

____________________

ARGUED FEBRUARY 10, 2014 — DECIDED JULY 23, 2014

____________________

Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and

KENDALL, District Judge. *

WOOD, Chief Judge. The Child Status Protection Act, 8

U.S.C. § 1153(h) (the Act), allows the adult children of lawful

permanent residents to maintain child status if their parent

* Honorable Virginia M. Kendall, District Judge of the United States Dis-

trict Court for the Northern District of Illinois, sitting by designation.

2 No. 13-2610

filed a visa petition on their behalf while they were still un-

der 21. This provision, enacted in 2002, prevents such chil-

dren from “aging out” of visa priority during the years in

which their petition is under review by immigration authori-

ties. But an immigrant may take advantage of this provision

only if he “sought to acquire the status of an alien lawfully

admitted for permanent residence within one year” of his

visa number becoming available. Id. § 1153(h)(1)(A).

Jorge Argenis Velásquez-García (Velásquez) is the adult

child of a lawful permanent resident. In 2005, when Velás-

quez was 17, his father filed a visa petition on his behalf. For

our purposes, Velásquez’s visa number became available in

March 2011. Although Velásquez took some steps to acquire

permanent-resident status within one year of that date, he

did not file a formal application for permanent status until

May 2012, fourteen months after his visa number became

available. Later yet, the Board of Immigration Appeals

adopted a new rule in a case called Matter of O. Vasquez; the

new rule required an immigrant to file or attempt to file a

substantially complete application for permanent status

within one year in order to satisfy the “sought to acquire”

prerequisite of 8 U.S.C. § 1153(h)(1)(A). Because Velásquez

had not done so, the Board found that he failed to meet the

requirement and ordered him removed.

Although we find the Board’s new interpretation of the

Act’s ambiguous language to be reasonable, we conclude

that retroactive application of the new one-year filing rule

works a manifest injustice in Velásquez’s case. We therefore

remand to the Board for redetermination under the statutory

interpretation in effect prior to the O. Vasquez decision.

No. 13-2610 3

I

Velásquez, born in Mexico in 1987, entered the United

States without being admitted or paroled in 1994 when he

was seven years old. In 2001, Velásquez’s father, a lawful

permanent resident, filed on his behalf a Form I-130 petition,

which seeks approval for eligible family members to apply

for an immigrant visa or adjustment of residence status.

Although properly filed, that petition was later deemed

abandoned, unbeknownst to Velásquez or his father. In 2005,

when Velásquez was 17 years old, his father filed another I-

130 petition on his behalf. That petition was approved in

2009 when Velásquez was 22 years old. Approval put

Velásquez in line to apply for permanent residence, which

he could do only when an immigrant visa number became

available to him.

Velásquez’s visa number became available on March 1,

2011 (after a period of visa “retrogression” that is irrelevant

for our purposes, see Visa Retrogression, U.S. Citizenship &

Immigration Services (June 14, 2011) http://www.uscis.gov/

green-card/green-card-processes-and-procedures/visa-

availability-priority-dates/visa-retrogression) (last visited

July 23, 2014)). About two weeks later, Velásquez visited an

attorney to inquire about his status and to inform the attor-

ney that he wanted to apply for his “green card.” A week

later, Velásquez retained the attorney to investigate his eligi-

bility for permanent residence. The attorney filed a Freedom

of Information Act (FOIA) request with the U.S. Citizenship

& Immigration Services (CIS), seeking information about

“[a]ll I-130 applications and approval notices” relating to Ve-

lásquez. Six months later, in September 2011, CIS sent the

4 No. 13-2610

attorney documents indicating that Velásquez’s first I-130

petition had been “denied due to abandonment.” The aban-

doned petition was nevertheless important because it ena-

bled Velásquez to qualify for certain amnesty provisions en-

acted in the 2006 amendments to the immigration laws. See 8

U.S.C. § 1255(i). CIS’s response did not mention that Velás-

quez had only months left to apply for permanent status be-

fore losing priority as a resident’s child.

After receiving the FOIA response, the attorney met with

Velásquez to discuss adjusting his status. But according to

the attorney, “nothing became more solid or concrete.” Ve-

lásquez later told an immigration judge that he intended to

apply for permanent status, but he was “just trying to get the

money together” to pay the myriad costs and fees associated

with changing status. No one informed either Velásquez or

his father about any filing deadline, for reasons we detail be-

low. Meanwhile, Velásquez caught the attention of immigra-

tion officials as the result of two misdemeanor infractions: a

conviction in 2007, at the age of 20, for simple possession of

marijuana, and a guilty plea in January 2012 to a charge of

driving under the influence (DUI), for which he served 15

days in county jail.

Upon his release from jail on February 15, 2012, Velás-

quez was immediately taken into immigration custody and

served with a Notice to Appear for removal proceedings.

The Notice to Appear was filed with the immigration court

on March 8. It charged that he was removable as an alien

convicted of a controlled-substance offense and as an alien

present in the country without being admitted or paroled.

Velásquez did not contest the grounds for his removability.

In late February, Velásquez’s retained counsel unsuccessfully

No. 13-2610 5

requested his release on bond. At the first hearing in immi-

gration court on April 19, the judge set a May 17 deadline for

Velásquez to file an application for permanent status. Velás-

quez filed the application on May 10, a week before the

court-imposed deadline but about fourteen months after his

visa number became available.

On June 8, 2012, more than three months after Velás-

quez’s one-year statutory deadline had passed, the Board of

Immigration Appeals decided Matter of O. Vasquez, 25 I&N

Dec. 817 (B.I.A. 2012). The Board’s decision in O. Vasquez nar-

rowly interpreted critical language in the Act—whether the

alien “sought to acquire” within one year the status of a per-

son lawfully admitted for permanent residence—to require

that an immigrant make a fully compliant application for

permanent residence or one with only technical defects with-

in one year, unless exceptional circumstances prevented the

immigrant from filing such an application. This decision de-

parted sharply from three prior non-precedential Board de-

cisions, which had required only a showing that the immi-

grant took “substantial steps” to acquire permanent status in

order to qualify for the Act’s protection. See In re Murillo, No.

A099 252 007, 2010 WL 5888675 (B.I.A. Oct. 6, 2010); In re

Castillo-Bonilla, No. A98 282 359, 2008 WL 4146759 (B.I.A.

Aug. 20, 2008); In re Ji Young Kim, No. A77 828 503, 2004 WL

3187209 (B.I.A. Dec. 20, 2004). The Eleventh Circuit (the only

court of appeals to consider these decisions) elected to fol-

low their approach in Tovar v. U.S. Att’y Gen., 646 F.3d 1300,

1304–05 (11th Cir. 2011).

II

Referring to the O. Vasquez decision, the immigration

judge determined that Velásquez failed to meet the Child

6 No. 13-2610

Status Act’s “sought to acquire” prerequisite because he did

not file an application for permanent residence during the

one-year window. On remand from the Board, the immigra-

tion judge found that Velásquez’s incarceration and pending

removal proceedings were not extraordinary circumstances

that excused his late filing. Velásquez was ordered to be re-

moved to Mexico, where he had not lived since he was seven

years old. The removal order became final on June 25, 2013,

when the Board dismissed Velásquez’s appeal. Velásquez

then petitioned for review of the order in this court.

Velásquez, along with the American Immigration Coun-

cil as amicus curiae, attacks the Board’s decision in O. Vasquez

on a number of fronts. While they make some good points,

we do not approach the question on a clean slate. In light of

the deference we owe the Board’s interpretation of ambigu-

ous immigration statutes, we must uphold the Board’s read-

ing of the statute if it meets the criteria established in Chev-

ron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984). Yet even if O. Vasquez is entitled to Chevron deference,

we are not finished. Such a conclusion would require us to

resolve the distinct question whether the O. Vasquez one-year

filing rule must be applied retroactively. We now turn to

those two inquiries.

III

Chevron requires us to defer when a statute is ambiguous

and the agency charged with administering the statute

promulgates a reasonable interpretation using sufficiently

formal procedures. Arobelidze v. Holder, 653 F.3d 513, 518–19

(7th Cir. 2011). The Board is considered an agency in charge

of administering the Immigration and Naturalization Act

(INA). Zivkovic v. Holder, 724 F.3d 894, 897 (7th Cir. 2013). As

No. 13-2610 7

the Child Status Protection Act is an amendment to the INA,

“the [Board] is entitled to deference in interpreting [its] am-

biguous provisions.” Negusie v. Holder, 555 U.S. 511, 516

(2009); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999) (“[T]he [Board] should be accorded Chevron deference

as it gives ambiguous statutory terms concrete meaning

through a process of case-by-case adjudication[.]”) (internal

quotation omitted). Even so, we must “reject administrative

constructions which are contrary to clear congressional in-

tent.” Chevron, 467 U.S. at 843 n.9.

Velásquez’s opening position is that the phrase “sought

to acquire” in the Act is unambiguous. But exactly how an

immigrant must seek to acquire the status of a permanent

resident within one year of eligibility is not clear from the

statute. Which of the following, for example, constitutes

“seeking to acquire” permanent status: hiring an attorney,

consulting an attorney, earning money to pay for the appli-

cation, contacting immigration officials about one’s status,

telling an acquaintance about one’s intent to seek permanent

status, telling an official about one’s intent, mailing in a

complete application, mailing in an application in which a

signature line was left blank, or providing an attorney with a

completed application? The statute does not say whether

these or myriad other actions would be sufficient. Congress

left it up to the agency to decide what suffices to demon-

strate that the alien has sought to acquire permanent status.

When a statute contains “any gap left, implicitly or explicitly,

by Congress, the courts must respect the interpretation of

the agency to which Congress has delegated the responsibil-

ity for administering the statutory program.” INS v. Cardoza-

Fonseca, 480 U.S. 421, 448 (1987) (internal quotation omitted).

8 No. 13-2610

The phrase “sought to acquire” is not a term with a well-

established legal significance. Cf. Morissette v. United States,

342 U.S. 246, 250 (1952) (“[W]here Congress borrows terms

of art in which are accumulated the legal tradition and

meaning of centuries of practice, it presumably knows and

adopts the cluster of ideas that were attached to each bor-

rowed word in the body of learning from which it was taken

and the meaning its use will convey in the judicial mind un-

less otherwise instructed.”). Variants of the phrase appear

here and there in the U.S. Code, but we cannot discern any

consistent meaning among them. E.g., 7 U.S.C. § 3362(b)(3);

16 U.S.C. § 396f; 50 U.S.C. § 2367(b)(5). We thus find no fault

in the Board’s conclusion that the phrase “sought to acquire”

is “sui generis in the Act and is not a legal term of art in ap-

plicable regulations or administrative or judicial decisions.”

O. Vasquez, 25 I&N Dec. at 819.

Velásquez’s efforts to define the term only highlight its

ambiguity. At oral argument, Velásquez’s counsel suggested

that an immigrant would satisfy the “sought to acquire” re-

quirement if the immigrant “surfaced” within one year and

could prove it. We fail to see how that explanation makes

matters any more clear, much less why that interpretation is

compelled by the statutory language. Velásquez’s reference

to the dictionary definition of “seek” is similarly unreveal-

ing. One dictionary tells us the word may mean: “1. To try to

find or discover: search for. 2. To try to obtain or reach. 3. To

go to or toward … 4. To ask for: request. 5. To try: endeavor.

6. Obs[olete]. To explore.” WEBSTER’S II: NEW RIVERSIDE

UNIVERSITY DICTIONARY 1056 (1994). Which of these six

meanings should one choose? The statute does not say.

Worse, it does not speak only of seeking something; it also

uses the word “acquire,” which is no more clear in this con-

No. 13-2610 9

text. We see no need to belabor the point: the phrase “sought

to acquire” is one that is ambiguous enough to satisfy the

first step of Chevron.

This takes us to step two, in which we must decide

whether the Board has offered a reasonable interpretation. If

so, its understanding must prevail, even if we might have

preferred a different approach. See Holder v. Martinez

Gutierrez, 132 S. Ct. 2011, 2017 (2012); Negusie, 555 U.S. at

517; see also Emergency Servs. Billing Corp., Inc. v. Allstate Ins.

Co., 668 F.3d 459, 466 (7th Cir. 2012); Chevron, 467 U.S. at 842.

We assess the reasonableness of the Board’s interpretation

“in light of the legislative history, the purpose of the statute,

and comparative statutes.” Emergency Servs., 668 F.3d at 466.

The Board filled the statutory gap with the following

rule:

[A]n alien may satisfy the “sought to acquire”

provision … by properly filing the application

for adjustment of status with the [Department

of Homeland Security]. Additionally, the alien

may meet the requirement by establishing,

through persuasive evidence, that an applica-

tion he or she submitted to the appropriate

agency was rejected for a procedural or tech-

nical reason or that there were other extraordi-

nary circumstances, particularly those where

the failure to timely file was due to circum-

stances beyond the alien’s control.

O. Vasquez, 25 I&N Dec. at 823. Under this rule, immigrants

subject to the Act normally will know what is required of

them: file an application within one year of visa eligibility,

10 No. 13-2610

unless extraordinary circumstances prevent this step. (What

they may not know is which flaws will be considered minor

enough to qualify as procedural or technical glitches.)

The Board hoped that its rule would, in the normal run of

cases, provide clarity and consistency for immigration

courts. Id. at 821 (“Interpreting the statute in this manner …

‘promotes consistency and predictability, which are im-

portant principles in immigration law.’”) (quoting Matter of

C-T-L-, 25 I&N Dec. 341, 347 (B.I.A. 2010)). We cannot say the

Board acted unreasonably in coming to the conclusion that a

simple one-year filing requirement, with limited exceptions,

better serves the goal of uniformity than the more nebulous

“substantial steps” test it rejected.

This is true even if we accept, as Velásquez and amicus

curiae urge, that the Board’s interpretation frustrates the Act’s

purpose to prevent the adult children of permanent resi-

dents from “aging out” and to keep families together. That

may aptly describe Congress’s broader statutory purpose for

the Act, see Tovar, 646 F.3d at 1304, but Congress saw fit to

limit the Act’s reach to those immigrants who “sought to ac-

quire the status of an alien lawfully admitted for permanent

residence within one year.” 8 U.S.C. § 1153(h)(1)(A). In other

words, this statute, like most, balances competing desiderata.

In a system in which only a limited number of visas are

made available at any given time, see 8 U.S.C. § 1152(a), and

petitioners often wait years for a visa, the Act’s one-year

limitation allows unused visas to be recaptured and reallo-

cated to others awaiting such visas. As the Board is entrusted

to administer the statute, we defer to its judgment.

No. 13-2610 11

IV

The more difficult question before us is whether the O.

Vasquez rule should have been applied retroactively to Velás-

quez, even though his one-year period expired months before

O. Vasquez was decided. We review determinations about the

retroactive effect of legal rules de novo without giving any

deference to the agency on that question. Zivkovic, 724 F.3d

at 898–900; see also INS v. St. Cyr, 533 U.S. 289, 320 n.45

(2001).

As a general rule, “[r]etroactivity is not favored in the

law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208

(1988). The Supreme Court has explained that this aversion

to retroactive rulemaking

is deeply rooted in our jurisprudence, and em-

bodies a legal doctrine centuries older than our

Republic. Elementary considerations of fair-

ness dictate that individuals should have an

opportunity to know what the law is and to

conform their conduct accordingly; settled ex-

pectations should not be lightly disrupted. For

that reason, the principle that the legal effect of

conduct should ordinarily be assessed under

the law that existed when the conduct took

place has timeless and universal human ap-

peal.

Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (internal

quotation and citations omitted). In the immigration context,

the reluctance to impose rules retroactively is “buttressed by

‘the longstanding principle of construing any lingering am-

12 No. 13-2610

biguities in deportation statutes in favor of the alien.’” St.

Cyr, 533 U.S. at 320 (quoting Cardoza-Fonseca, 480 U.S. at

449).

A rule is considered to be retroactive when it “attaches

new legal consequences to events completed before its en-

actment.” Landgraf, 511 U.S. at 270. The inquiry “demands a

commonsense, functional judgment” and “should be in-

formed and guided by familiar considerations of fair notice,

reasonable reliance, and settled expectations.” Martin v.

Hadix, 527 U.S. 343, 357–58 (1999) (internal quotation omit-

ted); see also Landgraf, 511 U.S. at 270 (“[R]etroactivity is a

matter on which judges tend to have ‘sound instincts[.]’”)

(quoting Danforth v. Groton Water Co., 59 N.E. 1033, 1034

(Mass. 1901) (Holmes, J.)). Justice Story provided the classic

formulation: a legal rule has retroactive effect when it “‘takes

away or impairs vested rights acquired under existing laws,

or creates new obligations, imposes a new duty, or attaches a

new disability, in respect to transactions or considerations

already past.’” St. Cyr, 533 U.S. at 321 (quoting Soc’y for Prop-

agation of Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H.

1814) (Story, J.)). As applied to Velásquez, the Board’s deci-

sion in O. Vasquez has retroactive effect because it created a

new obligation—the duty to file a visa petition within one

year, rather than merely take substantial steps toward filing

—after Velásquez’s one-year filing window had already ex-

pired.

The appropriate standard for determining whether a le-

gal rule may be applied retroactively depends on the source

of the rule. For statutory rules, courts presume that a rule

lacks retroactive effect “absent clear congressional intent fa-

voring such a result.” Landgraf, 511 U.S. at 280; see also Var-

No. 13-2610 13

telas v. Holder, 132 S. Ct. 1479, 1491 (2012) (“The operative

presumption, after all, is that Congress intends its laws to

govern prospectively only.”) (citation and quotation omit-

ted). The Landgraf analysis applies equally to administrative

rules, except that in the latter case the court asks “whether

Congress has expressly conferred power on the agency to

promulgate rules with retroactive effect and, if so, whether

the agency clearly intended for the rule to have retroactive

effect.” Durable Mfg. Co. v. U.S. Dep’t of Labor, 578 F.3d 497,

503 (7th Cir. 2009). Such legislative and quasi-legislative

rules are presumed not to have retroactive effect because the

enacting authorities’ “responsivity [sic] to political pressures

poses a risk that it may be tempted to use retroactive legisla-

tion as a means of retribution against unpopular groups or

individuals.” St. Cyr, 533 U.S. at 315 (quoting Landgraf, 511

U.S. at 266); see also Stephen H. Legomsky, Fear and Loathing

in Congress and the Courts: Immigration and Judicial Review, 78

TEX. L. REV. 1615, 1626 (2000) (observing that, because noncit-

izens cannot vote, they are particularly vulnerable to adverse

legislation).

The presumption against retroactive application of legal

rules is reversed, however, in the special case where a court

furnishes the new rule. See Harper v. Va. Dep’t of Tax., 509 U.S.

86, 97 (1993) (“When this Court applies a rule of federal law

to the parties before it, that rule is the controlling interpreta-

tion of federal law and must be given full retroactive 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.”). (It is an open question whether

Harper leaves anything of the three-part test for retroactivity

of judicial rules established in Chevron Oil Co. v. Huson, 404

U.S. 97 (1971). See Nunez-Reyes v. Holder, 646 F.3d 684, 690–91

14 No. 13-2610

(9th Cir. 2011); Kolkevich v. Att’y Gen. of U.S., 501 F.3d 323, 337

n.9 (3d Cir. 2007); Fairfax Covenant Church v. Fairfax Cnty. Sch.

Bd., 17 F.3d 704, 710 (4th Cir. 1994); Glazner v. Glazner, 347

F.3d 1212, 1216–17 (11th Cir. 2003) (en banc); Hulin v. Fibre-

board Corp., 178 F.3d 316, 333 (5th Cir. 1999). But we have no

cause to consider that question in this case.) The reasons that

judicial decisions are treated differently are rooted in the dif-

ferences between judicial and legislative institutions. See

Harper, 509 U.S. at 107 (Scalia, J., concurring) (“’[T]he prov-

ince and duty of the judicial department [is] to say what the

law is,’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803)—not what the law shall be.”) (citation omitted); see

also Rivers v. Rdwy. Exp., Inc., 511 U.S. 398, 312–13 (1994).

In principle, one might wonder where agency adjudica-

tions in which rules are announced fit into this framework,

given their blended legislative and judicial character. The

Board (like the National Labor Relations Board) is a policy-

making institution capable of “announcing new principles in

an adjudicative proceeding rather than through notice-and-

comment rulemaking.” Negrete-Rodriguez v. Mukasey, 518

F.3d 497, 503 (7th Cir. 2008) (citing SEC v. Chenery Corp., 332

U.S. 194, 203 (1947)). It is the Board’s status as an agency that

earns it the Chevron deference we have given to its interpre-

tation of the INA. But precisely because it is an agency, we

join the Ninth Circuit in rejecting “the government’s position

that the [Board], as the authoritative interpreter of an am-

biguous statute, has issued an interpretation … that is com-

parable to a judicial construction of a statute and is an au-

thoritative statement of what the statute meant before as well

as after the decision of the case giving rise to that construc-

tion.” Garfias-Rodriguez v. Holder, 702 F.3d 504, 515 (9th Cir.

2012) (en banc) (internal quotation omitted). Rather, as we

No. 13-2610 15

would with any agency rule, we start from the premise that

the Board “may not apply a new rule retroactively when to

do so would unduly intrude upon reasonable reliance inter-

ests.” Negrete-Rodriguez, 518 F.3d at 503–04 (internal quota-

tion omitted). The only exception is retroactive application to

the litigant whose case gave rise to the new rule: that person

had an opportunity to present argument to the agency and

ran the risk that the agency would use his case to announce a

rule. For others, however, a new agency rule announced by

adjudication is no different from a new agency rule an-

nounced by notice-and-comment rulemaking, for purposes

of retroactivity analysis.

To evaluate whether a new legal rule adopted in an agen-

cy adjudication may be applied retroactively to strangers to

the case, we apply the same test as our sister circuits. See

NLRB v. Wayne Transp., 776 F.2d 745, 751 n.8 (7th Cir. 1985);

Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380,

390 (D.C. Cir. 1972) (Retail, Wholesale); Clark-Cowlitz Joint Op.

Agency v. FERC, 826 F.2d 1074, 1081 (D.C. Cir. 1987) (en banc)

(“[Retail, Wholesale] provides the framework for evaluating

retroactive application of rules announced in agency adjudi-

cations.”); Garfias-Rodriguez, 702 F.3d at 518 (discussing the

test to be applied in “the situation when a new administra-

tive policy is announced and implemented through adjudi-

cation”) (quotation omitted); McDonald v. Watt, 653 F.2d

1035, 1042 (5th Cir. 1981). This approach strives to balance

the adjudicative and policymaking functions of administra-

tive agencies. “The general principle is that when as an inci-

dent of its adjudicatory function an agency interprets a stat-

ute, it may apply that new interpretation in the proceeding

before it. … [But] a retrospective application can properly be

withheld when to apply the new rule to past conduct or pri-

16 No. 13-2610

or events would work a manifest injustice.” Clark-Cowlitz,

826 F.2d at 1081 (quotation omitted).

Courts consider a number of factors in assessing whether

retroactive application of a rule is manifestly unjust, includ-

ing the following:

(1) Whether the particular case is one of first

impression, (2) whether the new rule repre-

sents 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 de-

gree of burden which a retroactive order im-

poses on a party, and (5) the statutory interest

in applying a new rule despite the reliance of a

party on the old standard.

Wayne Transp., 776 F.2d at 751 n.8 (quoting Retail, Wholesale,

466 F.2d at 390); see also Negrete-Rodriguez, 518 F.3d at 504.

Like most such unweighted multi-factor lists, this one serves

best as a heuristic; no one consideration trumps the others.

With that in mind, we look to see what insight these consid-

erations offer for Velásquez’s case.

The first point in our list asks whether the particular case

is one of first impression. The term “first impression” as

used in this context, however, is misleading “insofar as it dif-

fers from the more typical understanding of the term as re-

ferring to situations in which an agency confronts an issue

that it has not resolved before.” Clark-Cowlitz, 826 F.2d at

1082 n.6. In this context, as we noted earlier, a rule is more

likely to apply “retroactively” in the case where it is first an-

No. 13-2610 17

nounced (that is, to the parties involved in that case) than in

later cases in which it might apply to conduct of others that

took place before its announcement. Id. Bearing that in mind,

we have no quarrel with the application of the O. Vasquez

rule to O. Vasquez himself. That was the case of “first” im-

pression, and O. Vasquez never appealed the Board’s deci-

sion, so no court ever had the chance to pass on the retroac-

tivity of the rule in his case. If a court had considered his

case, it is possible that a full analysis under the rest of the

Retail, Wholesale framework might have pointed to retroac-

tive application of the rule. Unlike Velásquez, who promptly

consulted an attorney, retained the attorney, filed a FOIA re-

quest related to his quest for permanent status, and submit-

ted a complete application soon after immigration authori-

ties gave him a deadline for doing so, O. Vasquez did noth-

ing more than consult a notary (through his parents) about

the possibility of filing an application. See O. Vasquez, 25 I&N

Dec. at 2. We can assume, therefore, that for several reasons

retroactive application of the one-year filing rule was appro-

priate in O. Vasquez’s case. That does not mean, however,

that the same is necessarily true for Velásquez.

The pertinent question is whether the new rule may be

applied retroactively in later cases (that is, in cases that pro-

pose to apply the newly announced rule to persons who

were not involved in the case of first impression) against

persons like Velásquez, who had no notice that the rules

were about to change and who may have relied on the for-

mer legal regime. See Garfias-Rodriguez, 702 F.3d at 520–21.

The timing of the announcement of the O. Vasquez rule, we

conclude, militates against retroactive application. In Velás-

quez’s case, the government did not challenge any estab-

lished doctrines, but instead sought to have the new O.

18 No. 13-2610

Vasquez rule retroactively applied against Velásquez even

though Velásquez’s earlier conduct may well have satisfied

the legal requirements in effect at the time he took those

steps. That is exactly the kind of “second impression” case

that the first point in the D.C. Circuit’s Retail, Wholesale list

suggests should not apply the new rule retroactively.

The second and third considerations mentioned in the list

are closely intertwined. The second asks 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. The third examines the extent to which the party

against whom the new rule is applied may have relied on

the former rule. These considerations “require[] the court to

gauge the unexpectedness of a rule and the extent to which

the new principle serves the important but workaday func-

tion of filling in the interstices of the law.” Clark-Cowlitz, 826

F.2d at 1082; Garfias-Rodriguez, 702 F.3d at 521 (favoring ret-

roactivity “if a party could reasonably have anticipated the

change in the law such that the new requirement would not

be a complete surprise”) (quotation omitted). In short, “the

longer and more consistently an agency has followed one

view of the law, the more likely it is that private parties have

reasonably relied to their detriment on that view.” Clark-

Cowlitz, 826 F.2d at 1082–83. Importantly, the critical ques-

tion is not whether a party actually relied on the old law, but

whether such reliance would have been reasonable. See Var-

telas, 132 S. Ct. at 1491 (“Although not a necessary predicate

for invoking the antiretroactivity principle, the likelihood of

reliance on prior law strengthens the case for reading a newly

enacted law prospectively”) (emphasis added).

No. 13-2610 19

The answers to these questions also point against retroac-

tive application of the one-year filing requirement estab-

lished in O. Vasquez. Although O. Vasquez was the first prece-

dential Board decision directly to interpret the Act’s “sought

to acquire” language, it broke new ground. Up to that time,

guidance all pointed toward an understanding of “sought to

acquire” that called only for substantial steps to be taken.

See In re Murillo, supra, 2010 WL 5888675, at *4 (“Congress

intended that the alien must make an attempt to get or ob-

tain status as a lawful permanent resident within 1-year [sic]

of such eligibility, lesser actions than contemplated by use of

the terms ‘file,’ ‘submit,’ and ‘apply’”) (quotation omitted);

In re Ji Young Kim, supra, 2004 WL 3187209, at *3 (reversing

immigration judge’s ruling that immigrant failed to comply

with statute because application not filed within one year);

In re Castillo-Bonilla, supra, 2008 WL 4146759, at *2; see also

Tovar, 646 F.3d at 1305 (“We find the BIA’s reasonable inter-

pretation in these cases to be persuasive and in sync with the

intent of Congress in enacting the Act. Hence, we conclude

that Congress’s use of the term ‘sought to acquire’ in the Act

is broad enough to encompass substantial steps taken to-

ward the filing of the relevant application during the rele-

vant time period, but does not require that the alien actually

file or submit the application.”).

Before O. Vasquez, neither the Board nor any court had in-

terpreted the “sought to acquire” language of the Act to re-

quire a petitioner to file his visa application within one year.

In an effort to counter this unfavorable fact, the government

directs us to two Board decisions that purportedly construe

“sought to acquire” to mean “file” or “apply.” See In re Cher-

yl Tan Fernandez, No. A75 475 621, 2005 WL 1848352 (B.I.A.

May 6, 2005) (per curiam); In re Xiuyu Wang, 25 I&N Dec. 28

20 No. 13-2610

(B.I.A. 2009). Neither case, in our view, goes this far. In

Wang, the Board expressly stated that it would “not address

the question” whether the petitioner’s failure to file a visa

petition within one year barred application of the Act. Id. at

33. Similarly, in Fernandez, the Board did not reach the ques-

tion because the petitioner took no steps to acquire perma-

nent status for over five years after becoming eligible. 2005

WL 1848352, at *1. In O. Vasquez itself, the Board cited no

prior cases in support of its interpretation of “sought to ac-

quire,” although it professed without elaboration that “other

unpublished Board decisions [] interpreted ‘sought to ac-

quire’ more restrictively.” 25 I&N Dec. 817 at 822.

In light of the state of the law at the critical time, a rea-

sonable person reasonably could have assumed that the Act

did not require him or her to file an application within one

year. Before the sea change in O. Vasquez in 2012, which oc-

curred too late for Velásquez to comply with it, the “substan-

tial test” steps had been consistently applied to the “sought

to acquire” language in the Act since 2004. Cf. Garfias-

Rodriguez, 702 F.3d at 522 (applying rule retroactively where

prior rule in effect for 21 months, during which time peti-

tioner took no action in reliance); Clark-Cowlitz, 826 F.2d at

1083–84 (applying rule retroactively where previous rule

was in place for six months, during which time it was “be-

clouded” by possibility of being overturned on appeal). The

Board’s new one-year filing rule in O. Vasquez did not merely

fill a void “in the interstices of the [statute],” Retail, Whole-

sale, 466 F.2d at 391 (quoting Chenery, 332 U.S. at 202–03); ra-

ther, the new one-year filing rule reflected a shift in position

“solely as a result of a change in agency policy,” Clark-

Cowlitz, 826 F.2d at 1083. In such a case, retroactive applica-

tion is disfavored.

No. 13-2610 21

It is also worth noting that the state of the law at the time

of his application makes it virtually impossible for Velásquez

to claim ineffective assistance of his retained counsel for fail-

ing to advise him to file an application before his one-year

window expired. See In re Compean, 25 I&N Dec. 1, 1–2

(B.I.A. 2009) (reinstating standards for reviewing motions to

reopen deportation proceedings based on claims of ineffec-

tive assistance). Recall that Velásquez met with an attorney

to discuss obtaining his “green card” within weeks of be-

coming eligible for permanent status, retained the attorney

to investigate his eligibility, and allowed the attorney to file a

FOIA request on his behalf to that end. When the immigra-

tion judge provided Velásquez with a filing deadline during

his deportation proceedings (itself a clear sign that no one-

year filing deadline then-existed), he diligently complied

with it, submitting his application a week early. Until O.

Vasquez appeared, competent counsel might have considered

such steps to be substantial moves toward acquiring perma-

nent status, and might not have recognized that the applica-

tion itself had to be submitted within one year.

The fourth Retail, Wholesale inquiry concerns how much

of a burden a retroactive order would impose on a party. For

Velásquez, that burden is immense: he faces removal from

the only country he has called home since he was seven

years old. Courts have long recognized the obvious hardship

imposed by removal. E.g., St. Cyr, 533 U.S. at 322 (“Preserv-

ing the [immigrant]’s right to remain in the United States

may be more important to the [immigrant] than any poten-

tial jail sentence.”) (quotation omitted); Vartelas, 132 S. Ct. at

1487 (explaining that the Court has “several times recog-

nized the severity of [the] sanction” of deportation); Padilla v.

Kentucky, 559 U.S. 356, 369 (2010); Miguel-Miguel v. Gonzales,

22 No. 13-2610

500 F.3d 941, 952 (9th Cir. 2007) (“[D]eportation alone is a

substantial burden that weighs against retroactive applica-

tion of an agency adjudication.”). Non-retroactivity will not

impose undue costs on the United States, because few peti-

tioners will be similarly situated to Velásquez, either from

the standpoint of timing or that of reliance. The fourth con-

sideration identified by Retail, Wholesale thus also favors Ve-

lásquez. See Garfias-Rodriguez, 702 F.3d at 523.

Finally, we are advised to assess the statutory interest in

applying the new rule despite the reliance of a party on the

old standard. Often, this will “point[] in favor of the gov-

ernment because non-retroactivity impairs the uniformity of

a statutory scheme, and the importance of uniformity in

immigration law is well established.” Id. Here, however, the

general interest in uniformity must be assessed in light of the

broader statutory purpose of the Act to “provide[] age-out

protection for derivative child beneficiaries adversely affect-

ed by administrative delays in the adjudication of immigrant

petitions.” Tovar, 646 F.3d at 1304. The eight years it took the

Board to redefine what the Act’s “sought to acquire” lan-

guage requires is an administrative delay. Retroactively ap-

plying the Board’s new interpretation of the Act against Ve-

lásquez would squarely contradict the purpose of the stat-

ute.

In sum, our analysis persuades us that this is a case

“where the [agency] had confronted the problem before, had

established an explicit standard of conduct, and now at-

tempts to punish conformity to that standard under a new

standard subsequently adopted.” Retail, Wholesale, 466 F.2d

at 391. We conclude that retroactive application of the O.

No. 13-2610 23

Vasquez one-year filing requirement would work a manifest

injustice on Velásquez.

V

Because retroactive application of the O. Vasquez rule on

Velásquez is manifestly unjust, we GRANT the petition for

review and REMAND to the Board for determination whether

Velásquez took “substantial steps” to acquire permanent sta-

tus within one year of his eligibility, as provided by the

standard in effect prior to O. Vasquez.