Francisco Garfias-Rodriguez v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO JAVIER GARFIAS- 

RODRIGUEZ,

No. 09-72603

Petitioner,

v.  Agency No.

A079-766-006

ERIC H. HOLDER, Jr., Attorney

OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc

June 20, 2012—Pasadena, California

Filed October 19, 2012

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,

Susan P. Graber, Raymond C. Fisher, Ronald M. Gould,

Richard A. Paez, Johnnie B. Rawlinson, Richard R. Clifton,

Jay S. Bybee, Sandra S. Ikuta, and Mary H. Murguia,

Circuit Judges.

Opinion by Judge Bybee;

Concurrence by Chief Judge Kozinski;

Concurrence by Judge Gould;

Partial Concurrence and Partial Dissent by Judge Graber;

Dissent by Judge Reinhardt;

Dissent by Judge Paez

12583

GARFIAS-RODRIGUEZ v. HOLDER 12587

COUNSEL

Matt Adams, Northwest Immigrant Rights Project, Seattle,

Washington, for the petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Donald

E. Keener, Deputy Director, and Luis E. Perez, Senior Litiga-

tion Counsel, Department of Justice, Civil Division, Washing-

ton, D.C.; John W. Blakeley, Senior Litigation Counsel,

Department of Justice, Office of Immigration Litigation,

Washington, D.C., for the respondent.

Gary A. Watt, Amicus Curiae, Hastings Appellate Project,

Pro Bono Counsel for Eriberto Errera, San Francisco, Califor-

nia.

Beth Werlon, Amicus Curiae, Named Plaintiffs and Proposed

Redefined Class in Duran Gonzales v. Department of Home-

land Security, No. 09-35174 (9th Cir.), Washington, D.C.

Charles Roth, Amicus Curiae, National Immigration Justice

Center, Chicago, Illinois.

Stephen W. Manning, Amicus Curiae, American Immigration

Lawyers Association, Washington, D.C.

OPINION

BYBEE, Circuit Judge:

In National Cable & Telecommunications Ass’n v. Brand X

Internet Services, the Supreme Court instructed federal courts

to defer to reasonable agency interpretations of ambiguous

statutes, even when those interpretations conflict with the

prior holding of a federal circuit court. 545 U.S. 967, 982-83

(2005). That is the situation we confront here. In Acosta v.

12588 GARFIAS-RODRIGUEZ v. HOLDER

Gonzales, 439 F.3d 550, 553-56 (9th Cir. 2006), we held that

aliens who are inadmissible under § 212(a)(9)(C)(i)(I) of the

Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1182(a)(9)(C)(i)(I), are eligible for adjustment of status

under INA § 245(i), 8 U.S.C. § 1255(i), in spite of the latter

section’s requirement of admissibility. A year later, the Board

of Immigration Appeals (“BIA”) decided that such aliens are

not eligible to apply for adjustment of status under § 245(i) in

In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007). In this

case, we must decide whether to defer to the agency’s inter-

pretation of the INA and overrule Acosta and, if so, whether

the agency’s interpretation may be applied to Garfias retroac-

tively.

We conclude that we must defer to the BIA’s decision, and

we hold that the BIA’s decision may be applied retroactively

to Garfias. We thus deny his petition for review.

I. FACTS AND PROCEDURAL HISTORY

Francisco Javier Garfias-Rodriguez (“Garfias”) is a native

and citizen of Mexico. He unlawfully entered the United

States in 1996 and briefly departed twice, first to visit his ail-

ing mother in 1999 and then to attend her funeral in 2001. He

reentered the United States without permission both times. In

April 2001, Garfias’s then-current employer filed an applica-

tion for labor certification with the Oregon Employment

Department on his behalf but later withdrew the application

after he ceased working for that employer. Garfias married his

wife Nancy, a United States citizen, in April 2002. He applied

to adjust his status to that of a lawful permanent resident in

June of 2002, paying a total of $1305 in fees. In 2004, United

States Citizenship and Immigration Services issued Garfias a

Notice to Appear (“NTA”) charging him with removability

under INA § 212(a)(6)(A)(i), as “[a]n alien present in the

United States without being admitted or paroled,” and

§ 212(a)(9)(C)(i), as an alien who has been “unlawfully pres-

GARFIAS-RODRIGUEZ v. HOLDER 12589

ent in the United States for an aggregate period” of more than

one year and reentered without permission.

In proceedings before an immigration judge (“IJ”), Garfias

conceded removability on both grounds charged in the NTA.

He requested relief in the form of adjustment of status and, in

the alternative, voluntary departure. In July 2004, the IJ

denied Garfias’s application for status adjustment, holding

that Garfias was inadmissible under INA § 212 and thus ineli-

gible for adjustment under § 245(i). In a per curiam decision

in March 2006, the BIA sustained Garfias’s appeal. The BIA

noted that “the Ninth Circuit, in whose jurisdiction this pro-

ceeding arises, held that an alien inadmissible under section

212(a)(9)(C)(i) of the Act could apply for adjustment of status

under section 245(i) in conjunction with a request that the

Attorney General retroactively consent to his reapplying for

admission,” and remanded the case to the IJ for reconsidera-

tion in light of those decisions. See Acosta, 439 F.3d at 556;

Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).

On remand, Garfias renewed his application for adjustment

of status, but in November 2007 the IJ once again denied the

request for adjustment. The IJ found that Garfias could not

establish that his application was filed before § 245(i)’s expi-

ration date of April 30, 2001.1 The IJ reasoned that Garfias’s

application based on his marriage to a U.S. citizen was filed

after April 30, 2001, and he was not grandfathered in by his

application for a labor certification because there was no

proof the labor certification was “properly filed.” Garfias

again appealed to the BIA.

The BIA dismissed his appeal in July 2009. It did not rule

1

Section 245(i) relief is only available to an alien physically present in

the United States “who is the beneficiary . . . of . . . a petition for classifi-

cation . . . filed . . . on or before April 30, 2001; or . . . an application for

a labor certification . . . filed pursuant to the regulations of the Secretary

of Labor on or before such date.” 8 U.S.C. § 1255(i)(1)(B).

12590 GARFIAS-RODRIGUEZ v. HOLDER

on the IJ’s grounds for denying the application. Instead, the

BIA noted that subsequent to the IJ’s decision, it had issued

In re Briones, 24 I. & N. Dec. at 371, which held that an alien

could not seek status adjustment under § 245(i) if he was inel-

igible for admission under § 212(a)(9)(C)(i)(I). The BIA then

explained that since this court had abrogated Perez-Gonzalez

under a Brand X theory, see Duran Gonzales v. Dep’t of

Homeland Sec. (Duran Gonzales I), 508 F.3d 1227, 1241-42

(9th Cir. 2007), the BIA could now apply the Briones rule to

cases arising in the Ninth Circuit. It therefore dismissed the

appeal, granted Garfias sixty days to voluntarily depart,

ordered removal in the event that he failed to depart, and

informed him that filing a petition for review would automati-

cally terminate the grant of voluntary departure.

Garfias filed a petition for review with this court. He raised

three arguments: (1) that Briones is not entitled to Chevron2

deference, (2) that Briones should not be applied to his case

retroactively, and (3) that 8 C.F.R. § 1240.26(i), which termi-

nates any grant of voluntary departure upon the filing of a

petition for judicial review of a removal order, is an invalid

exercise of statutorily delegated power. A panel of this court

rejected his claims and denied the petition for review.

Garfias-Rodriguez v. Holder, 649 F.3d 942, 953 (9th Cir.

2011). We granted Garfias’s petition for rehearing en banc.

Garfias-Rodriguez v. Holder, 672 F.3d 1125 (9th Cir. 2012).

2

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 842-44 (1984), held that courts must defer to a reasonable

agency interpretation of an ambiguity in a statute that the agency is

charged with administering. Chevron step one asks “whether Congress has

directly spoken to the precise question at issue”; step two asks whether the

agency’s interpretation is reasonable. Id.

GARFIAS-RODRIGUEZ v. HOLDER 12591

II. LEGAL BACKGROUND

A. The Tension Between INA § 212(a)(9)(C) and § 245(i)

[1] Congress enacted § 245(i) in 1994 to provide an ave-

nue for “aliens who entered without inspection but who have

access to a visa (typically an immigrant spouse of a citizen)

to legalize their status without leaving the country and incur-

ring a long and needless separation from their family.”

Ramirez-Canales v. Mukasey, 517 F.3d 904, 907-08 (6th Cir.

2008); see also Briones, 24 I. & N. Dec. at 359-60. However,

the Attorney General is permitted to adjust an applicant’s sta-

tus under this section only if “the alien is eligible to receive

an immigrant visa and is admissible to the United States for

permanent residence.” 8 U.S.C. § 1255(i)(2)(A).

[2] When § 245(i) was first enacted, aliens present in the

United States who had entered without inspection were con-

sidered “deportable” aliens under former § 241(a)(1)(B) of the

INA. See Briones, 24 I. & N. Dec. at 362-63 (citing 8 U.S.C.

§ 1251(a)(1)(B) (1994)). Thus, that provision did not impli-

cate § 245(i)’s requirement that the alien be “admissible” to

the United States. However, in 1996, Congress enacted the

Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), which “recharacterized” as “inadmissible” aliens

who had previously been labeled “deportable” for entering the

country without inspection. Briones, 24 I. & N. Dec. at 363.

As a result, § 212 currently renders inadmissible “[a]ny alien

who . . . has been unlawfully present in the United States for

an aggregate period of more than 1 year, . . . and who enters

or attempts to reenter the United States without being admit-

ted.” 8 U.S.C. § 1182(a)(9)(C)(i)(I). IIRIRA did not, however,

address the effect of this change on the status adjustment pro-

vision of § 245(i).

[3] In short, although § 245(i) ostensibly provides an ave-

nue for aliens eligible to receive a visa but living illegally in

the United States to adjust their status to that of a lawful per-

12592 GARFIAS-RODRIGUEZ v. HOLDER

manent resident, requirement of “admissibility” seems to viti-

ate that purpose for some illegal aliens in light of the

subsequent enactment of § 212(a)(9)(C). Congress has not

explained how to handle an alien who is inadmissible under

§ 212(a)(9)(C)(i)(I) but otherwise qualified for adjustment of

status under § 245(i).3

B. The Ninth Circuit and the BIA Address the Tension

1. The Parting of the Ways

In Perez-Gonzalez, we held that the inadmissibility provi-

sion of INA § 212(a)(9)(C)(i)(II)4 did not preclude status

adjustment under § 245(i). 379 F.3d at 792-95. We declined

to defer to a guidance memorandum issued by the Immigra-

tion and Naturalization Service (“INS”), which concluded that

status adjustment was unavailable to aliens inadmissible

under § 212(a)(9)(C)(i)(II), because interpretations in the “in-

formal format[ ]” of a guidance memorandum are not entitled

“to the rigorous deference owed formal agency interpretations

under Chevron.” Id. at 792-93. Applying a less deferential

form of review, we found that the memorandum’s interpreta-

tion conflicted with “[t]he regulations at 8 C.F.R. § 212.2,”

which “make the availability of adjustment of status to previ-

ously removed aliens explicit.” Id. at 793.5 Accordingly, we

concluded that “[i]n the absence of a more complete agency

3

Because the BIA did not address the issue of whether Garfias applied

for adjustment of status before § 245(i)’s expiration date, we will assume

without deciding that Garfias is otherwise qualified to apply for adjust-

ment of status under § 245(i).

4

Section 212(a)(9)(C)(i)(II) is the companion provision of the subsec-

tion at issue in this case, § 212(a)(9)(C)(i)(I). Subsection II makes inad-

missible any alien who has been ordered removed and enters or attempts

to reenter the United States illegally, and subsection I makes inadmissible

any alien who has accrued over a year of unlawful presence in the United

States. See 8 U.S.C. § 1182(a)(9)(C)(i). Thus, subsection II presents the

same conflict with § 245(i) as does subsection I.

5

8 C.F.R. § 212.2(e) specifies that applicants for adjustment of status

“must request permission to reapply for entry in conjunction with [their]

application[s] for adjustment of status.” We explained that “8 C.F.R.

§§ 212.2(e) and (i)(2) expressly permit applicants for adjustment of status

who have been previously removed or deported to apply for permission to

reapply from within this country.” Perez-Gonzalez, 379 F.3d at 793.

GARFIAS-RODRIGUEZ v. HOLDER 12593

elaboration of how its interpretation of § 212(a)(9) can be rec-

onciled with its own regulations, we must defer to the regula-

tions rather than to the informal guidance memorandum.” Id.

at 794. The panel denied rehearing, over the dissent of Judge

Gould. Perez-Gonzalez v. Gonzales, 403 F.3d 1116, 1117-20

(9th Cir. 2005) (Gould, J., dissenting) (dissenting from denial

of motion to reconsider denial of petition for panel rehearing).

The BIA subsequently issued In re Torres-Garcia, 23 I. &

N. Dec. 866 (BIA 2006), accepting our invitation to provide

“a more complete agency elaboration,” Perez-Gonzalez, 379

F.3d at 794, of the conflict between these provisions of the

INA. The BIA concluded that “the Ninth Circuit’s analysis

regarding the availability of a retroactive waiver of the ground

of inadmissibility set forth at section 212(a)(9)(C)(i) contra-

dicts the language and purpose of the Act and appears to have

proceeded from an understandable, but ultimately incorrect,

assumption regarding the applicability of 8 C.F.R. § 212.2.”

Torres-Garcia, 23 I. & N. Dec. at 873. The BIA noted that 8

C.F.R. § 212.2 “was not promulgated to implement current

section 212(a)(9) of the Act,” but “implement[ed] statutory

provisions that were repealed by the IIRIRA.” Id. at 874-75.

It further noted that our decision in Perez-Gonzalez effec-

tively allowed § 245(i) to function as a means to “circumvent

the statutory 10-year limitation on section 212(a)(9)(C)(ii)

waivers” by allowing aliens to “simply reenter[ ] unlawfully

before requesting the waiver,” given that “it is the alien’s

unlawful reentry without admission that makes section

212(a)(9)(C)(i) applicable in the first place.” Id. at 876. The

BIA noted that under our reading of § 212, an alien could

obtain a “waiver nunc pro tunc even though such a waiver

would have been unavailable to him had he sought it prospec-

tively, thereby placing him in a better position by asking for-

giveness than he would have been in had he asked

permission.” Id.

[4] Next, in Acosta v. Gonzales, 439 F.3d at 556, we

extended the reasoning of Perez-Gonzalez to INA

12594 GARFIAS-RODRIGUEZ v. HOLDER

§ 212(a)(9)(C)(i)(I)—the provision at issue in this case—and

held that aliens inadmissible under that section nonetheless

remained eligible for adjustment of status under § 245(i). We

emphasized that “Perez-Gonzalez appears to control the issue

. . . before us” and that “any attempt to distinguish the present

case from Perez-Gonzalez based on the different grounds of

inadmissibility involved would be unpersuasive.” Id. at 554.

We did not take note of the BIA’s contrary decision in

Torres-Garcia, which had been issued just one month earlier.

[5] The following year, the BIA revisited the question we

answered in Acosta and again rejected our reasoning. Briones,

24 I. & N. Dec. 355. It explained that § 212(a)(9)(C)(i)(I)

applies only to aliens “who have departed the United States

after accruing an aggregate period of ‘unlawful presence’ of

more than 1 year and who thereafter entered or attempted to

reenter the United States unlawfully.” Id. at 365-66. The BIA

observed that § 212(a)(9)(C)(i)(I) could therefore trump

§ 245(i) without rendering the latter provision superfluous. Id.

It noted that “in every other case where Congress has

extended eligibility for adjustment of status to inadmissible

aliens . . . it has done so unambiguously, either by negating

certain grounds of inadmissibility outright or by providing for

discretionary waivers of inadmissibility, or both.” Id. at 367.

Accordingly, the BIA decided that despite our decision in

Acosta, there was “little merit in the . . . argument . . . that it

would be incompatible with the remedial purpose of section

245(i) to make adjustment of status unavailable to . . . aliens

[inadmissible under section 212].” Id. at 370. The BIA con-

cluded that “aliens who are inadmissible under section

212(a)(9)(C)(i)(I) of the [INA] cannot qualify for section

245(i) adjustment, absent a waiver of inadmissibility.” Id. at

371. Briones, however, explicitly declined to decide whether

to apply its interpretation to cases arising in the jurisdiction of

the Ninth and Tenth Circuits, id. at 371 n.9, which had both

reached contrary conclusions. See Padilla-Caldera v. Gon-

zales, 453 F.3d 1237 (10th Cir. 2005).

GARFIAS-RODRIGUEZ v. HOLDER 12595

2. The Reconciliation

That same year, we began the process of reevaluating our

prior decisions in light of the BIA’s decisions in Torres-

Garcia and Briones. First, we 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. We 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 ambigu-

ity. Id. at 1237-38; see Brand X, 545 U.S. at 982. We con-

cluded that the BIA’s interpretation of § 212(a)(9)(C)(i)(II) in

Torres-Garcia was “clearly reasonable and is therefore enti-

tled 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.

In 2010, the BIA issued its most recent published opinion

on this subject. In re Diaz and Lopez rejected the alien’s argu-

ment that Briones should not apply in cases arising in the

jurisdiction of the Ninth Circuit due to our decision in Acosta.

25 I. & N. Dec. 188, 190-91 (BIA 2010). The BIA noted that

the decision in Acosta was “constrained by” our previous

decision in Perez-Gonzalez, which had subsequently been

overruled in Duran Gonzales I. Id. at 190. Citing Brand X, the

BIA therefore concluded that “[n]either the Immigration

Judge nor the Board remains bound by the Ninth Circuit’s

decision in Acosta in light of our subsequently issued decision

in Matter of Briones and the Ninth Circuit’s decision in

[Duran] Gonzales [I] to overrule Perez-Gonzalez.” Id.

With that background, we now turn to the case before us.

12596 GARFIAS-RODRIGUEZ v. HOLDER

III. DISCUSSION

A. Whether Briones Is Entitled to Chevron Deference

We must first determine whether aliens who are inadmissi-

ble under INA § 212(a)(9)(C)(i)(I) may nonetheless apply for

adjustment of status under § 245(i). Deferring to the BIA’s

decision in Briones, we hold that they may not.6

1. Statutory Ambiguity

We begin by asking whether Congress has “spoken to the

precise question at issue.” Chevron, 467 U.S. at 842. Here,

Garfias urges us to reaffirm our holding in Acosta, where we

interpreted the ambiguity between § 212(a)(9)(C)(i)(I) and

§ 245(i) in the absence of an authoritative interpretation by

the BIA. However, we see no basis for distinguishing

§ 212(a)(9)(C)(i)(I) from § 212(a)(9)(C)(i)(II) or for departing

from the reasoning of Duran Gonzales I. In Brand X, the

Supreme Court held that “[a] court’s prior judicial construc-

tion of a statute trumps an agency construction otherwise enti-

tled to Chevron deference only if the prior court decision

holds that its construction follows from the unambiguous

terms of the statute and thus leaves no room for agency dis-

cretion.” 545 U.S. at 982; see Duran Gonzales I, 508 F.3d at

1235-36. We believe that Acosta was not such a decision.

We wrote in Acosta that “[t]he statutes involved do not

clearly indicate whether the inadmissibility provision or the

penalty-fee adjustment of status provision should take prece-

dence,” and reached our conclusion by relying heavily on our

6

We have jurisdiction under 8 U.S.C. § 1252(a)(5). We review de novo

purely legal questions concerning the meaning of the immigration laws.

See Altamirano v. Gonzales, 427 F.3d 586, 591 (9th Cir. 2005). We defer

to the BIA’s interpretation and application of immigration laws unless its

interpretation is “contrary to the plain and sensible meaning of the law at

issue.” Poblete Mendoza v. Holder, 606 F.3d 1137, 1140 (9th Cir. 2010).

GARFIAS-RODRIGUEZ v. HOLDER 12597

earlier Perez-Gonzalez decision. Acosta, 439 F.3d at 553-55.

Other circuits have also noted that the tension between

§ 212(a)(9)(C) and § 245(i) creates a statutory ambiguity that

cannot be resolved conclusively by resort to the text. See, e.g.,

Cheruku v. Att’y Gen., 662 F.3d 198, 204 (3d Cir. 2011);

Renteria-Ledesma v. Holder, 615 F.3d 903, 908 (8th Cir.

2010) (“A literal reading of [8 U.S.C.] § 1255(i) would render

the adjustment of status provision a virtual nullity, because

aliens who ‘entered the United States without inspection,’ as

required by § 1255(i)(1)(A)(i), generally are not ‘admissible,’

as required by § 1255(i)(2)(A).”); Ramirez v. Holder, 609

F.3d 331, 335-36 (4th Cir. 2010); Herrera-Castillo v. Holder,

573 F.3d 1004, 1007-08 (10th Cir. 2009); Mora v. Mukasey,

550 F.3d 231, 237-38 (2d Cir. 2008); Ramirez-Canales, 517

F.3d at 907-08; see also Lemus-Losa v. Holder, 576 F.3d 752,

760 (7th Cir. 2009) (“If the question before us were . . . the

relation between [8 U.S.C. § 1182(a)(9)](C)(i)(I) and

§ 1255(i) . . . we would agree that there is sufficient ambigu-

ity in these provisions to require Chevron deference, and we

would find that the BIA has drawn a rational line.”). The BIA

has also acknowledged this ambiguity, noting that “the plain

language of the statute seems to make ‘entry without inspec-

tion’ both a qualifying and a disqualifying condition for

adjustment of status.” Briones, 24 I. & N. Dec. at 362.

We previously refused to give deference to the BIA’s inter-

pretation only because it came in the form of a guidance

memorandum, which we held was “not entitled to the same

rigorous deference due agency regulations.” Acosta, 439 F.3d

at 554. In deciding Briones, however, the BIA has issued a

formal agency interpretation of the INA and provided a thor-

oughly developed opinion that disagrees with our interpreta-

tion in Acosta. Additionally, our decision in Acosta relied

heavily on our reasoning in Perez-Gonzalez, which we have

since abrogated in light of the BIA’s decision in Torres-

Garcia. See Duran Gonzales I, 508 F.3d at 1242. Because

Acosta did not “unambiguously foreclose[ ]” the BIA’s

authority to interpret the interplay between

12598 GARFIAS-RODRIGUEZ v. HOLDER

§ 212(a)(9)(C)(i)(I) and § 245(i), the BIA “remains the

authoritative interpreter (within the limits of reason)” of these

provisions. Brand X, 545 U.S. at 983.

2. The Reasonableness of the Agency’s Interpretation

We now turn to whether the BIA’s interpretation of the

statutory framework is reasonable. Every circuit to have

addressed the issue has concluded that Briones is a reasonable

interpretation of § 212(a)(9)(C)(i)(I) and § 245(i). See

Renteria-Ledesma, 615 F.3d at 908; Ramirez, 609 F.3d at

337; Mora, 550 F.3d at 239; Ramirez-Canales, 517 F.3d at

910. We agree with our sister circuits and hold that the BIA’s

interpretation is reasonable.

The BIA noted that the current ambiguity between

§ 212(a)(9)(C) and § 245(i) was a consequence of a switch

from the use of the term “deportable” to “inadmissible” to

describe aliens who entered without inspection. See Briones,

24 I. & N. Dec. at 363. The BIA observed that Congress has

generally limited adjustment of status to those aliens who

have been “inspected and admitted” into the United States. Id.

at 359. Section 245(i) authorized a “limited departure from

the general ‘inspection and admission’ requirement.” Id. at

360. Although Congress intended the requirement to discour-

age aliens from moving to the United States before becoming

eligible for permanent residence, Congress found that the “in-

spected and admitted” policy forced relatives of permanent

residents to leave the country just so they could apply for an

immigrant visa at a U.S. embassy or consulate. Id. at 359-60.

The BIA then resolved the textual ambiguity by explaining

that “the classes of aliens described in sections 245(i)(1)(A)

and 212(a)(9)(C)(i)(I) are [not] coextensive.” Id. at 365. That

is, § 245(i) applies to some aliens who are physically present

in the United States and entered without inspection, but

§ 212(a)(9)(C)(i)(I) precludes its application to those aliens

who entered the country without inspection, stayed for at least

GARFIAS-RODRIGUEZ v. HOLDER 12599

one year, departed the country, and then “enter[ed] or attemp-

t[ed] to reenter the United States without being admitted.” 8

U.S.C. § 1182(a)(9)(C)(i). The BIA supported its interpreta-

tion of § 212(a)(9)(C)(i)(I) by pointing out that subsection

(a)(9)(C) is entitled “ ‘Aliens unlawfully present after previ-

ous immigration violations.’ ” Briones, 24 I. & N. Dec. at 366

(quoting 8 U.S.C. § 1182(a)(9)(C)). The BIA emphasized that

“[i]t is the entry or attempted entry of an alien subsequent to

his accrual of more than 1 year of unlawful presence that trig-

gers inadmissibility under section 212(a)(9)(C)(i)(I), and not

mere unlawful presence for more than 1 year.” Id.

The latter class of aliens—whom the BIA refers to as

“recidivists”—are not eligible for adjustment of status under

§ 245(i) because otherwise § 245(i) status adjustment would

be “available to a whole new class of aliens who had never

been eligible for it.” Id. at 365-67. Additionally, the BIA

deemed it “of crucial importance” to its interpretation “that in

every other case where Congress has extended eligibility for

adjustment of status to inadmissible aliens . . . it has done so

unambiguously, either by negating certain grounds of inad-

missibility outright or by providing for discretionary waivers

of inadmissibility, or both.” Id. at 367.

[6] This is a permissible reading of the statute. In light of

the BIA’s reasoned opinion, we hold that Briones is entitled

to Chevron deference. See Brand X, 545 U.S. at 982. We con-

clude 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 oth-

erwise.

B. Retroactivity of the Briones Rule

[7] Garfias contends that even if Briones controls the inter-

pretive question in this case, the BIA should not have applied

its conclusion to his case. In general, an agency is free to

implement new administrative policies through adjudicative

12600 GARFIAS-RODRIGUEZ v. HOLDER

procedures instead of rulemaking. See SEC v. Chenery Corp.

(Chenery II), 332 U.S. 194, 201-03 (1947). We have added

that an agency “may act through adjudication to clarify an

uncertain area of the law, so long as the retroactive impact of

the clarification is not excessive or unwarranted.” Montgom-

ery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982).

However, the Brand X twist here complicates the situation

somewhat: because we have determined that our prior deci-

sion in Acosta must be overruled in light of the BIA’s deci-

sion in Briones, it is not clear whether we, as a judicial

decisionmaker, have changed the law, or whether it is the

agency that has changed the law.7 Thus, there are two possible

answers to the retroactivity question: the analysis in Chevron

Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971), which sets

forth retroactivity factors to consider when a court changes

the law, and the Montgomery Ward test, 691 F.2d at 1333,

which sets forth retroactivity factors to consider when an

agency changes its law. Before turning to this question, we

consider whether the BIA should have the opportunity to

address the retroactivity question first, and whether a retroac-

tivity analysis is even required.

1. Exhaustion of Administrative Remedies

To begin with, we consider whether to address this issue

for the first time on appeal. Garfias did not ask the BIA to

consider the retroactive application of its decision in the first

instance, although the second time his case was before the

Board, the government had raised the argument that the BIA

should follow Briones rather than Acosta.

7

We do not mean to say, as Judge Paez argues, that an agency can over-

rule a judicial decision or that the agency “changed the law of this circuit.”

Paez Dissent. Op. at 12654-55. We still retain ultimate authority to deter-

mine whether to defer to the agency’s interpretation. But when we do

defer to an agency’s interpretation of the law, it is not clear for purposes

of determining which retroactivity analysis applies whether we or the

agency effectively brought about the change in the law.

GARFIAS-RODRIGUEZ v. HOLDER 12601

We have said that the exhaustion of administrative reme-

dies with respect to the retroactivity issue is not required,

except to invite the agency to correct its own error, if “record

development is unnecessary and the [agency] has no special

expertise to do the retroactivity analysis.” Chang v. United

States, 327 F.3d 911, 925 (9th Cir. 2003). Some courts have

concluded that retroactivity is a question of law, and no defer-

ence to the agency’s decision regarding retroactivity is appro-

priate, see, e.g., Microcomputer Tech. Inst. v. Riley, 139 F.3d

1044, 1051 (5th Cir. 1998); Mason Gen. Hosp. v. Sec’y of

Dep’t of Health & Human Servs., 809 F.2d 1220, 1224 (6th

Cir. 1987); Retail, Wholesale & Dep’t Store Union v. NLRB

(Retail Union), 466 F.2d 380, 390 (D.C. Cir. 1972), while

others have taken a more deferential approach to the agency’s

determination, NLRB v. W.L. Miller Co., 871 F.2d 745, 748

n.2 (8th Cir. 1989) (collecting cases); Yakima Valley Cablevi-

sion, Inc. v. FCC, 794 F.2d 737, 746 (D.C. Cir. 1986) (an

agency must explain its retroactivity decision before a court

can review it).

We think that our position in Chang remains a sound one.

If there is no need to defer to an agency’s position on the

issue, there is no particular reason to remand to allow the

agency to consider in the first instance whether the rule

should be applied retroactively. Because no further record

development is necessary and the parties have briefed the

issue thoroughly before this court, we will consider the ques-

tion in the first instance.

2. Whether Any Retroactivity Analysis Is Required

Next, we reject the government’s position that the BIA, as

the authoritative interpreter of an ambiguous statute, has

issued an interpretation in Briones that is comparable to “[a]

judicial construction of a statute” and “is an authoritative

statement of what the statute meant before as well as after the

decision of the case giving rise to that construction.” Rivers

v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994)

12602 GARFIAS-RODRIGUEZ v. HOLDER

(emphasis added). Although it is true that the BIA is the

authoritative arbiter of the meaning of the ambiguous provi-

sions of the INA at issue here, Brand X, 545 U.S. at 983, its

role is considerably more circumscribed than that of an Arti-

cle III court construing federal law (where no agency is enti-

tled to deference) or a state’s high court construing its own

law.

That principle is vividly illustrated by the present situation.

In Acosta, we issued a binding interpretation of ambiguous

provisions of the INA, which was authoritative in this circuit

at least until the agency issued a reasonable interpretation to

the contrary. If the agency had never done so, Acosta would

still be good law. Cf. Brand X, 545 U.S. at 983. We construed

the statute pursuant to “[t]he judicial Power” vested in us over

“Cases . . . arising under . . . the Laws of the United States.”

U.S. Const. art. III, § 1, § 2, cl. 1. The BIA’s authority to say

what the law means, however, rests on the “executive Power”

vested in the President and his general charge to “take Care

that the Laws be faithfully executed.” U.S. Const. art. II, § 1,

§ 3. We defer to an agency not because it is better situated to

interpret statutes, but because we have determined that Con-

gress created gaps in the statutory scheme that cannot be filled

through interpretation alone, but require the exercise of poli-

cymaking judgment. See Chevron, 467 U.S. at 865 (“[A]n

agency to which Congress has delegated policy-making

responsibilities may, within the limits of that delegation, prop-

erly rely upon the incumbent administration’s views of wise

policy to inform its judgments.”). “Deference under Chevron

to an agency’s construction of a statute that it administers is

premised on the theory that a statute’s ambiguity constitutes

an implicit delegation from Congress to the agency to fill in

the statutory gaps.” FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 159 (2000); see Brand X, 545 U.S. at

980. Thus, the BIA’s interpretation of the INA is not a once-

and-for-always definition of what the statute means, but an act

of interpretation in light of its policymaking responsibilities

that may be reconsidered “on a continuing basis.” Chevron,

GARFIAS-RODRIGUEZ v. HOLDER 12603

467 U.S. at 864. We defer to the agency out of separation-of-

powers concerns for the policymaking function of the execu-

tive because we are “not part of either political branch of the

Government.” Id. at 865. But, for similar reasons, the execu-

tive may not insist that we treat the BIA’s construction of the

INA as though it were a court of last resort exercising “judi-

cial Power”; it is not. Indeed, the BIA equivocated over

whether, post-Briones, it would acquiesce in our decision in

Acosta. See Briones, 24 I. & N. Dec. at 371 n.9 (“We need not

decide here whether to apply our holding in the Ninth and

Tenth Circuits.”).8

We conclude that we must treat an agency decision that is

contrary to a ruling previously set forth by a court of appeals

and, as a result of Chevron and Brand X, prompts the court

of appeals to defer to the agency, as we would if the agency

had changed its own rules. To do otherwise would ignore the

effect of Chevron and treat the agency decision as though it

had issued from the court itself. To the extent our precedent

suggests the contrary, it is overruled in favor of the analysis

we adopt today. See, e.g., Duran Gonzales v. Dep’t of Home-

land Sec. (Duran Gonzales II), 659 F.3d 930, 939-41 (9th Cir.

2011); Morales-Izquierdo v. Dep’t of Homeland Sec., 600

F.3d 1076, 1087-91 (9th Cir. 2010).

Chief Judge Kozinski, concurring in the judgment, asserts

that we need not conduct a retroactivity analysis at all. See

Kozinski Concur. Op. at 12626. However, he applies retroac-

tivity principles to conclude that retroactivity analysis does

8

Our back-and-forth with the BIA may illustrate the wisdom of remand-

ing to the BIA where the BIA has not previously interpreted the statute

and where we believe the statute is ambiguous. “Generally speaking, a

court of appeals should remand a case to an agency for decision of a mat-

ter that statutes place primarily in agency hands.” INS v. Orlando Ventura,

537 U.S. 12, 16 (2002) (per curiam); see Velazquez-Herrera v. Gonzales,

466 F.3d 781 (9th Cir. 2006) (per curiam) (remanding to the BIA to fill

in a statutory gap). We anticipate that doing so will, in most situations,

avoid the Brand X problem posed in this case.

12604 GARFIAS-RODRIGUEZ v. HOLDER

not apply, effectively resolving the retroactivity question

against Garfias.9 Id. at 12626-28. We disagree with this

approach. It conflates the result of a retroactivity analysis with

the process of conducting it. We will perform the retroactivity

analysis directly instead of applying the same principles to

conclude that the analysis does not apply. See discussion infra

pp. 12612-15.

3. Which Retroactivity Test Applies: Chevron Oil or

Montgomery Ward

We now turn to the question of the appropriate test to apply

to determine if Briones applies to Garfias retroactively. Chev-

ron Oil Co. v. Huson addresses whether a rule changed by a

court should be applied retroactively. 404 U.S. at 106-07.10

9

Chief Judge Kozinski considers both Garfias’s reliance interests and

whether Briones represents a change in the law or merely settles it, ulti-

mately coming to many of the same conclusions that we do. See Kozinski

Concur. Op. at 12627 (concluding that remaining in the United States ille-

gally is not a valid reliance interest because “Garfias is not entitled to con-

tinue defying this country’s immigration laws”); id. at 12628 (concluding

that filing an application for adjustment of status did not qualify as a reli-

ance interest because Garfias applied before Acosta was issued); see also

id. at 12626-27 (“Garfias can’t point to any . . . action . . . to which today’s

holding attaches new legal consequences. Nor can [Garfias] point to any

settled law that today’s holding unsettles by imposing an additional burden

on his past conduct.”) (internal citations and quotation marks omitted); id.

at 12628 (“At the time [Garfias] applied for adjustment of status, there

was no law resolving the statutory ambiguity at issue here in his favor . . .

[and] the obvious tension between sections 245(i) and 212(a)(9) meant

that Garfias could have had no assurance that any subsequent interpreta-

tion of their interplay would be in his favor.”) (internal quotation marks

omitted); id. at 12629 (“Briones . . . settled the law”).

10

Chevron Oil articulated three factors to consider in making this deter-

mination: (1) whether the decision “establish[es] a new principle of law,

either by overruling clear past precedent on which litigants may have

relied, or by deciding an issue of first impression whose resolution was not

clearly foreshadowed”; (2) a weighing of “the merits and demerits in each

case by looking to the prior history of the rule in question, its purpose and

effect, and whether retrospective operation will further or retard its opera-

GARFIAS-RODRIGUEZ v. HOLDER 12605

Since Chevron Oil was decided, the Supreme Court has

strictly limited its application, see Harper v. Va. Dep’t of Tax-

ation, 509 U.S. 86, 95-96 (1993), and at least one court has

held that Chevron Oil has been overruled altogether, see

United Food & Commercial Workers Int’l Union, Local No.

150-A v. NLRB, 1 F.3d 24, 35 (D.C. Cir. 1993); see also

Nunez-Reyes v. Holder, 646 F.3d 684, 691-92 (9th Cir. 2011)

(en banc) (discussing these developments). The Supreme

Court has emphasized that retroactive application is the pre-

sumptive 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 cur-

rently pending. Id. at 96-97.

Last year, we affirmed the continuing validity of the Chev-

ron Oil rule in this circuit. Nunez-Reyes, 646 F.3d at 692 (“As

a circuit court, even if recent Supreme Court jurisprudence

has perhaps called into question the continuing viability of its

precedent, we are bound to follow a controlling Supreme

Court precedent until it is explicitly overruled by that Court.

We therefore remain bound by Chevron Oil.” (citations omit-

ted) (internal quotation marks omitted)); see also id. at 698

(Ikuta, J., concurring in part and dissenting in part)

(“Although the reasons for severely limiting non-retroactive

decisionmaking are clearly set out in Harper, the Court did

not expressly overrule Chevron Oil. We therefore must con-

tinue to consider Chevron Oil where we are announcing a new

rule of law for the first time and the parties have fairly raised

the issue.” Id. (footnote omitted) (citation omitted)). Thus,

tion”; and (3) “the inequity imposed by retroactive application.” 404 U.S.

at 106-07 (citation omitted) (internal quotation marks omitted). In prac-

tice, we see very little substantive difference between these factors and

those of Montgomery Ward. Cf. Dist. Lodge 64, Int’l Ass’n of Machinists

& Aerospace Workers v. NLRB, 949 F.2d 441, 447 (D.C. Cir. 1991); Dole

v. E. Penn Mfg. Co., 894 F.2d 640, 647 (3d Cir. 1990).

12606 GARFIAS-RODRIGUEZ v. HOLDER

where the party has fairly raised the issue we “apply the three-

pronged test outlined in Chevron Oil (1) in a civil case; (2)

when we announce a new rule of law, as distinct from apply-

ing a new rule that we or the Supreme Court previously

announced; (3) and when the new rule does not concern our

jurisdiction.” Id. at 691 (majority opinion).

For the reasons we explained in the previous section, how-

ever, we do not think the Chevron Oil test is well adapted to

the Brand X situation. We are not announcing a new rule of

law here because we have changed our mind about the cor-

rectness of our prior rule or because we have been corrected

by a higher court. Rather we are approving and applying a

new rule that the BIA announced in Briones and to which we

must defer under the Brand X framework.11 As we have noted,

the BIA’s decision fills a statutory gap and is an exercise of

its policymaking function. Chevron Oil, as a framework for

deciding when to apply a change in a court’s decision retroac-

tively, is, as a purely threshold matter, not the appropriate

framework.

We believe Montgomery Ward is the better fit for this situa-

tion. Montgomery Ward addresses the situation when a “new

administrative policy [is] announced and implemented

through adjudication.” 691 F.2d at 1328 (citing Chenery II,

332 U.S. at 202). In such a case, “the agency may act through

adjudication to clarify an uncertain area of the law, so long as

the retroactive impact of the clarification is not excessive or

unwarranted.” Id. We explained that although the agency was

free to change or modify its position, the agency’s interest in

doing so must be “balanc[ed] [against] a regulated party’s

interest in being able to rely on the terms of a rule as it is writ-

ten.” Id. at 1333. To implement this balancing test, we

11

As Judge Gould observes, although the BIA may have announced the

rule, it “does not become binding in this circuit until we defer to that inter-

pretation.” Gould Concur. Op. at 12633.

GARFIAS-RODRIGUEZ v. HOLDER 12607

adopted the framework set forth by the D.C. Circuit in Retail

Union:

(1) whether the particular case is one of first impres-

sion, (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 1333 (quoting Retail Union, 466 F.2d at 390).

Although the five-factor Montgomery Ward test was devel-

oped in the context of an agency overturning its own rule, it

has also been applied when court decisions formed part of the

background. See, e.g., Miguel-Miguel v. Gonzales, 500 F.3d

941, 951-53 (9th Cir. 2007) (noting that “both the BIA and

this court” had adopted the rule at issue before the BIA

decided to exercise its statutory discretion to change it); ARA

Servs., Inc. v. NLRB, 71 F.3d 129, 135 (4th Cir. 1995) (noting

that “the rule proposed by the Board represents an abrupt

break with well-settled policy” because it “purports to over-

turn numerous court precedents and Board decisions” (inter-

nal quotation marks omitted)); Local 900, Int’l Union of Elec.,

Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1195 (D.C.

Cir. 1984) (“Given the confusion in the Board’s and courts’

decisions over the years, the new rule cannot be called an

abrupt break with a well-settled policy . . . .”). Although none

of these cases actually analyzed the effect of a prior court

decision on the Montgomery Ward framework, they indicate

that the test is flexible enough to account for both agency and

court precedent when considering the relevant legal back-

ground.

12608 GARFIAS-RODRIGUEZ v. HOLDER

The Montgomery Ward test is more flexible than Chevron

Oil, and allows us to take into account the intricacies of a

Brand X problem, which are typically absent in a case where

we have overruled our own decisions, as in Nunez-Reyes.

Although Montgomery Ward involved an agency amending or

overturning its own precedent and Brand X involved an

agency disagreeing with a court’s prior decision, the consider-

ations in both situations are similar. When an agency con-

sciously overrules or otherwise alters its own rule or

regulation, we presume that it does so as an exercise of its

judgment. Similarly, when an agency expressly considers and

openly departs from a circuit court decision, we must presume

that the agency has considered the court’s reading of the stat-

ute in connection with the policies of the administration and

has consciously disagreed with the court as a matter of its

policymaking function. See, e.g., Torres-Garcia, 23 I. & N.

Dec. at 873 (“[W]e believe the Ninth Circuit’s analysis

regarding the availability of a retroactive waiver of the ground

of inadmissibility set forth at section 212(a)(9)(C)(i) contra-

dicts the language and purpose of the Act . . . .”).

Importantly, because Chevron and Brand X are grounded in

the deference we owe to agency policymaking, neither the

presumption in favor of retroactive application nor the prohi-

bition on considering retroactivity on a case-by-case basis

applies.12 Our concerns sound in equity. See Chenery II, 332

U.S. at 203 (“[R]etroactivity must be balanced against the

mischief of producing a result which is contrary to a statutory

design or to legal and equitable principles.”). Both the pre-

sumption in favor of retroactive application, and the rule that

a retroactivity analysis is not to be performed on a case-by-

12

Judge Paez argues that because we are an Article III court we must

follow Article III principles, which prohibit deciding retroactivity on a

case-by-case basis. See Paez Dissent Op. at 12654-55, 12656-59. As we

have explained, and as Montgomery Ward illustrates, Article III principles

are not always applicable to agency decisions and different concerns are

at stake when we overrule a prior decision based on our duty to defer to

a subsequent agency decision.

GARFIAS-RODRIGUEZ v. HOLDER 12609

case basis with regard to judicial adjudications stem from the

Supreme Court’s directive in Harper “prohibit[ing] the erec-

tion of selective temporal barriers to the application of federal

law in noncriminal cases.” 509 U.S. at 97. As the Court

explained,

[w]hen this Court applies a rule of federal law to the

parties before it, that rule is the controlling interpre-

tation of federal law and must be given full retroac-

tive 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.

Id.; see James B. Beam Distilling Co. v. Georgia, 501 U.S.

529, 540-43 (1991) (plurality opinion).

Although we have not previously considered whether Har-

per applies with equal force to an agency’s creation of new

law through adjudication, the other circuits to consider this

issue have concluded that it does not. See, e.g., ARA Servs.,

71 F.3d at 135 n.3 (“[T]he fact that Board adjudication has

long existed in the interstices of retroactivity law argues in

favor of a case-by-case approach to such rulings, rather than

an attempt to fit them within one of the above global retroac-

tivity principles.”); Laborers’ Int’l Union v. Foster Wheeler

Corp., 26 F.3d 375, 387 n.8 (3d Cir. 1994) (concluding that

the rationales supporting the retroactivity of judicial decisions

“do not apply analogously to administrative agency adjudica-

tions”); Dist. Lodge 64, Int’l Ass’n of Machinists & Aero-

space Workers v. NLRB, 949 F.2d 441, 447 (D.C. Cir. 1991)

(“These Article III grounds are inapplicable to administrative

adjudications, so Beam does not clearly foreclose selective

retroactivity here.”).

In every case in which we have applied the Montgomery

Ward test, we have done so on a case-by-case basis, for exam-

ple, by analyzing whether a petitioner actually relied on a past

rule, or by concluding that retroactivity as applied is imper-

12610 GARFIAS-RODRIGUEZ v. HOLDER

missible. See Miguel-Miguel, 500 F.3d at 953 (“[B]ecause the

Montgomery Ward analysis tilts decidedly in Miguel’s favor,

we hold that retroactive application of the [new] test to his

case was impermissible.” (emphasis added)); Chang v. United

States, 327 F.3d 911, 929 (9th Cir. 2003) (“[A]fter applying

the Montgomery Ward factors, we conclude that the applica-

tion of the INS’s intended change . . . is impermissibly retro-

active as applied to Appellants.” (emphasis added)); Great W.

Bank v. Office of Thrift Supervision, 916 F.2d 1421, 1432 (9th

Cir. 1990) (concluding that the bank in that case could not

show justifiable reliance); Oil, Chem. & Atomic Workers Int’l

Union, Local 1-547 v. NLRB, 842 F.2d 1141, 1145 (9th Cir.

1988) (finding a “significant” burden would be imposed on

that litigant by retroactive application of the new rule); Mont-

gomery Ward, 691 F.2d at 1334 (concluding that the new

rule’s retroactive impact would place an “unfair burden” on

the litigant department store as compared to its similarly situ-

ated competitors). In light of this consensus, the absence of

any guidance from the Supreme Court, and our conclusion

that agency decisions are not analogous to court decisions, we

see no need to reevaluate the Montgomery Ward case-by-case

test after Harper.

Therefore, we hold that when we overturn our own prece-

dent 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,

if the issue is fairly raised by the parties.

4. Applying the Test to Garfias’s Case

[8] Applying this test to the case before us, we conclude

that Garfias cannot avoid the retroactive effect of Briones on

his case.

The first factor of the Montgomery Ward test—whether the

issue is one of first impression—was developed in a very dif-

GARFIAS-RODRIGUEZ v. HOLDER 12611

ferent context and may not be suited to our situation. Retail

Union, from which this factor was adopted, involved a dispute

before the National Labor Relations Board (“NLRB”)

between a company and union workers with respect to work-

ers who had been on strike, were permanently replaced, and

were not offered the vacancies that opened when their

replacements departed. 466 F.2d at 383-84, 387. Just before

the NLRB’s decision in Retail Union, another union had suc-

ceeded in convincing the Board to overturn “a well settled

rule, enunciated and applied by the Board, that when an

employer permanently replaced an economic striker, he was

under no obligation thereafter to treat that striker other than

as a new applicant for employment.” Id. at 387. For the D.C.

Circuit, a case of “first impression” in this context meant

something different from what we ordinarily refer to as a

“case of first impression.” In the Retail Union context, a case

of “first impression” was a case in which one party had suc-

cessfully urged the NLRB to change its rule; a case of “sec-

ond impression” was any subsequent case brought before the

NLRB. The court was concerned that denying retroactive

effect in a case of first impression would “deny the benefits

of a change in the law to the very parties whose efforts were

largely responsible for bringing it about [and] might have

adverse effects on the incentive of litigants to advance new

theories or to challenge outworn doctrines.” Id. at 390. Addi-

tionally, to deny retroactive effect in a case of first impression

would effectively render the NLRB’s decision an advisory

opinion and raise serious questions as to whether the NLRB

had conducted a rulemaking in the guise of an adjudication.

See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 763-66

(1969) (plurality opinion); see also Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 221 (1988) (Scalia, J., concur-

ring). Instead, the court in Retail Union recognized that it was

in cases of “second impression” before the NLRB that con-

cerns might arise over “lack of notice [to the party against

whom the standard is to be applied retroactively] and the

[party’s] degree of reliance on former standards.” 466 F.2d at

12612 GARFIAS-RODRIGUEZ v. HOLDER

390 n.22; see also Miguel-Miguel, 500 F.3d at 951. In other

words, the court was more likely to apply the new rule in a

case of “first impression,” but less likely to apply it in a case

of “second impression.”

Retail Union’s concerns over issues of “first impression”

and “second impression” arose in the litigation-intensive con-

text of the NLRB regulating labor disputes between private

parties. These concerns may not be as well suited to the con-

text of immigration law, where one of the parties will always

be the government. Moreover, the NLRB is virtually unique

among agencies in its “long-standing reliance on adjudica-

tion” and the common-law method. See Mark H. Grunewald,

The NLRB’s First Rulemaking: An Exercise in Pragmatism,

41 Duke L.J. 274, 278 (1991). The BIA, by contrast, relies on

a complex combination of regulations promulgated by the

Attorney General, its own interpretative decisions, and a

detailed framework of statutes to establish national immigra-

tion policy. As Garfias is not analogously situated to either

the union or the company in Retail Union because it was the

government who brought about the change in the law, this

Retail Union factor does not weigh in favor of either side. 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. See Montgomery Ward,

691 F.2d at 1333-34 (considering the first three factors

together as a single criterion).

The second and the third factors are closely intertwined. If

a new rule “represents an abrupt departure from well estab-

lished practice,” a party’s reliance on the prior rule is likely

to be reasonable, whereas if the rule “merely attempts to fill

a void in an unsettled area of law,” reliance is less likely to

be reasonable. Retail Union, 466 F.2d at 390-91. We 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

GARFIAS-RODRIGUEZ v. HOLDER 12613

be a complete surprise.” Montgomery Ward, 691 F.2d at

1333-34; see also Great W. Bank, 916 F.2d at 1432. Decisions

from other circuits, especially the D.C. Circuit, support this

conclusion. In Clark-Cowlitz Joint Operating Agency v.

FERC, an en banc court determined that any reliance interest

was diminished because the previous rule was only in place

for six months, and the rule’s “presumably sunny prospects”

were “beclouded” by the possibility of being overturned on

appeal. 826 F.2d 1074, 1083-84 (D.C. Cir. 1987) (en banc).

In District Lodge 64, International Ass’n of Machinists &

Aerospace Workers v. NLRB, the D.C. Circuit held that multi-

ple changes in the agency’s position regarding the proper rule

precluded reliance because the final decision “was not an

extreme or unpredictable step,” much less a “radical transfor-

mation.” 949 F.2d at 447-48; see also Verizon Tel. Cos. v.

FCC, 269 F.3d 1098, 1111 (D.C. Cir. 2001) (reliance is

“something short of reasonable” ”[i]n light of the ongoing

legal challenges” to the old rule); Gen. Am. Transp. Corp. v.

ICC, 872 F.2d 1048, 1061 (D.C. Cir. 1989) (reliance is dis-

counted because the parties were aware of the precedent’s

vulnerability); Elec., Radio & Mach. Workers, 727 F.2d at

1195 (“Given the confusion in the Board’s and courts’ deci-

sions over the years, the new rule cannot be called an abrupt

break with a well-settled policy . . . .”).

In this case, Garfias identifies only two specific reliance

interests: the payment of a $1000 penalty fee to file his appli-

cation, and the fact that, by filing for adjustment of status, he

admitted his unlawful presence in this country to the INS. We

conclude that neither of these factors favors Garfias because

he filed his application well in advance of any court or agency

decision holding that inadmissibility under § 212(a)(9)(C) is

not a barrier to status adjustment under § 245(i). Garfias first

filed his application in 2002, but Perez-Gonzalez and Acosta

were not decided until two and four years later, respectively.

Thus, Garfias clearly did not file his application in reliance on

Acosta, or even the analogous decision in Perez-Gonzalez.

12614 GARFIAS-RODRIGUEZ v. HOLDER

The only window in which Garfias’s reliance interest based

on our previous rule might have been reasonable is the 21-

month period in 2006 and 2007 between the issuance of

Acosta and Briones. After Briones was issued, he was on

notice of Acosta’s vulnerability. At oral argument, Garfias

directed us to the costs he expended when renewing his appli-

cation for status adjustment in front of the IJ on remand,

which occurred during this period between Acosta and

Briones. For example, he had to renew his medical examina-

tion paperwork. However, there is nothing in the record which

discloses the cost to Garfias of such paperwork, and the pri-

mary reliance interest identified—the penalty filing fee—is

not implicated by the proceedings on remand.

Nor can we give much weight to the fact that Garfias

admitted to his illegal presence within the United States by

filing for adjustment of status. Garfias’s situation is similar to

the petitioner in Fernandez-Vargas v. Gonzales, who “tipped

off the authorities to his illegal presence” by “fil[ing] an

application to adjust his status to that of lawful permanent res-

ident [under 8 U.S.C.] § 1255(i).” 548 U.S. 30, 35 (2006).

The Supreme Court rejected the notion that the expanded pro-

visions of IIRIRA should not be applied to him retroactively

for other reasons, id. at 38-42, but remarked that “retroactivity

law . . . is meant to avoid new burdens imposed on completed

acts, not all difficult choices occasioned by new law,” and the

petitioner only “complain[ed] of . . . the application of new

law to continuously illegal action within his control both

before and after the new law took effect,” id. at 46. The Court

then rejected the petitioner’s position that he had “a right to

continue illegal conduct indefinitely under the terms on which

it began.” Id. Nothing in Briones “impair[s] rights a party pos-

sessed when he acted, increase[s] a party’s liability for past

conduct, or impose[s] new duties with respect to transactions

already completed.” Landgraf v. USI Film Prods., 511 U.S.

244, 280 (1994). Applying this logic to Garfias’s situation, we

cannot help but conclude that we should not be overly solici-

GARFIAS-RODRIGUEZ v. HOLDER 12615

tous of Garfias’s interest in continuing to avoid the conse-

quences of his violation of our immigration laws.

Moreover, the reasons that require us to defer to the BIA’s

decision in Briones also work against Garfias in this case.

From the outset, the tension between § 212(a)(9)(C) and

§ 245(i) was obvious. That ambiguity in the law—which

resulted in a six-year dialogue between the BIA and us—

should have given Garfias no assurances of his eligibility for

adjustment of status. Garfias might have had reason to be

encouraged after our generous reading of the statute in Perez-

Gonzalez and Acosta, but, even then, any reliance he placed

on our decisions held some risk because our decisions were

subject to revision by the BIA under Chevron and Brand X.

Given the specific facts and timing of this case, we conclude

that the second and third factors weigh against Garfias.

We recognize that the fourth factor—the degree of burden

imposed on Garfias—strongly favors him. 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, 500 F.3d at 952 (quoting INS v. St. Cyr, 533

U.S. 289, 325 (2001)). Furthermore, “deportation alone is a

substantial burden that weighs against retroactive application

of an agency adjudication.” Id.

The fifth factor—the statutory interest in applying a new

rule—points in favor of the government because non-

retroactivity impairs the uniformity of a statutory scheme, and

the importance of uniformity in immigration law is well

established. See, e.g., Cazarez-Gutierrez v. Ashcroft, 382 F.3d

905, 912 (9th Cir. 2004) (stressing “the strong interest in

national uniformity in the administration of immigration

laws”). The government’s interest in applying the new rule

retroactively may be heightened if the new rule follows from

the “plain language of the statute,” Great W. Bank, 916 F.2d

at 1432. Here it is clear from the multiple approaches taken

12616 GARFIAS-RODRIGUEZ v. HOLDER

to solving this problem that the answer is anything but

“plain.” The new rule does not follow from the plain language

of the statute because there is an inconsistency between two

statutory provisions. The statutory interest in applying the

new rule retroactively thus favors the government, but

because the government cannot claim that the new rule fol-

lows from the plain language of the statute, the factor only

leans in the government’s direction.

[9] In sum, although we recognize the burden that retroac-

tivity imposes on Garfias, the second, third, and fifth factors

in this case outweigh that burden. When he filed his § 245(i)

application in 2002, Garfias had no reliance interest because

the law was not settled or well established. Garfias’s is not a

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

had established an explicit standard of conduct, and now

attempts to punish conformity to that standard under a new

standard subsequently adopted.” Retail Union, 466 F.2d at

391. We hold that the BIA properly applied the Briones rule

to Garfias.13

C. Voluntary Departure Regulations

Finally, Garfias challenges the automatic termination of the

BIA’s grant of voluntary departure. First, he argues that not-

withstanding 8 C.F.R. § 1240.26(i), which provides for the

automatic termination of a voluntary departure grant upon the

filing of a petition for review, we retain equitable authority to

stay the voluntary departure period. Second, he argues that the

Attorney General exceeded his authority when he promul-

gated the regulation pursuant to 8 U.S.C. § 1229c(e).

[10] Section 1229c(e) authorizes the Attorney General “by

regulation [to] limit eligibility for voluntary departure under

this section for any class or classes of aliens.” 8 U.S.C.

13

We express no opinion whether other applicants may avoid the retro-

active effect of Briones.

GARFIAS-RODRIGUEZ v. HOLDER 12617

§ 1229c(e).14 The regulation at issue provides, in relevant part,

that if an alien files a petition for review of a final removal

order, “any grant of voluntary departure shall terminate auto-

matically upon the filing of the petition or other judicial chal-

lenge.” 8 C.F.R. § 1240.26(i). However, “an alien granted the

privilege of voluntary departure . . . will not be deemed to

have departed under an order of removal if the alien departs

the United States no later than 30 days following the filing of

a petition for review.” Id. The rule was effective as of January

20, 2009. See Voluntary Departure: Effect of a Motion to

Reopen or Reconsider or a Petition for Review, 73 Fed. Reg.

76,927, 76,927 (Dec. 18, 2008).

1. Whether the Court’s Equitable Authority Survived the

Regulation

We first consider whether we have equitable authority to

stay Garfias’s voluntary departure period regardless of 8

C.F.R. § 1240.26(i). We conclude that we do not.

The Supreme Court has explicitly reserved the question of

whether courts retain equitable jurisdiction to grant stays of

voluntary departure periods pending appellate review. See

Dada v. Mukasey, 554 U.S. 1, 10-11 (2008) (“[S]ome Federal

Courts of Appeals have found that they may stay voluntary

departure pending consideration of a petition for review on

the merits. This issue is not presented here, however, and we

14

Although § 1229c(e) further provides that “[n]o court may review any

regulation issued under this subsection,” a separate section in the INA pro-

vides that “[n]othing . . . in any other provision of this chapter (other than

this section) which limits or eliminates judicial review, shall be construed

as precluding review of constitutional claims or questions of law raised

upon a petition for review filed with an appropriate court of appeals in

accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). Two courts have

held that we may review legal and constitutional challenges to the regula-

tion without addressing § 1129c(e). See Hachem v. Holder, 656 F.3d 430,

438 (6th Cir. 2011); Patel v. Att’y Gen., 619 F.3d 230, 234 (3d Cir. 2010).

The government does not argue otherwise.

12618 GARFIAS-RODRIGUEZ v. HOLDER

leave its resolution for another day.” (citations omitted)). Pre-

viously, we held that we have equitable authority to stay a

petitioner’s voluntary departure period. El Himri v. Ashcroft,

344 F.3d 1261, 1262-63 (9th Cir. 2003). Our sister circuits,

except for the Fourth Circuit, agreed. See, e.g., Thapa v. Gon-

zales, 460 F.3d 323, 332 (2d Cir. 2006); Obale v. Att’y Gen.,

453 F.3d 151, 157 (3d Cir. 2006); Bocova v. Gonzales, 412

F.3d 257, 267-68 (1st Cir. 2005) (rejecting the government’s

argument as “sheer persiflage”); Lopez-Chavez v. Ashcroft,

383 F.3d 650, 654 (7th Cir. 2004); Rife v. Ashcroft, 374 F.3d

606, 615-16 (8th Cir. 2004); Nwakanma v. Ashcroft, 352 F.3d

325, 327 (6th Cir. 2003) (per curiam). But see Ngarurih v.

Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004) (“Having con-

cluded . . . that 8 U.S.C. § 1252(a)(2)(B) precludes judicial

review of the BIA’s order granting voluntary departure, we

cannot evade this statutory directive by resort to equity.”).

[11] However, each of these decisions was reached before

the Attorney General promulgated 8 C.F.R. § 1240.26(i) in

2008. The First, Third, and Sixth Circuits have recently

acknowledged that this regulation resolves the question of

whether courts have authority to stay the voluntary departure

period pending review, since it provides for the automatic ter-

mination of that period. See Hachem, 656 F.3d at 438 (“Prior

to the promulgation of this regulation, there was a circuit split

on the issue of whether or not a court of appeals had the dis-

cretion to stay voluntary departure. The new regulation

resolved that issue.” (citations omitted)); Patel v. Att’y Gen.,

619 F.3d 230, 234 (3d Cir. 2010) (“Under the plain language

of 8 C.F.R. § 1240.26(i), we cannot stay a grant of voluntary

departure after a petitioner seeks judicial review because the

grant has already terminated.”); Hakim v. Holder, 611 F.3d

73, 78 (1st Cir. 2010) (“That rule amended the voluntary

departure regulation, which now, in part, provides that a grant

of voluntary departure on or after January 20, 2009, automati-

cally terminates with the filing of a petition for review.”).

[12] We agree with our sister circuits. Garfias has given us

no reason to believe that courts possess equitable authority to

GARFIAS-RODRIGUEZ v. HOLDER 12619

stay voluntary departure periods contrary to the Attorney

General’s regulation. In § 1229c(e), Congress granted the

Attorney General the authority to control grants of voluntary

departure, and the Attorney General exercised this authority

by deciding that a grant of voluntary departure terminates

upon the filing of a petition for review. This regulation effec-

tively abrogates our contrary decision in El Himri. 344 F.3d

at 1262; see United States v. Oakland Cannabis Buyers’

Coop., 532 U.S. 483, 496 (2001) (noting that federal courts

have equitable discretion “unless a statute clearly provides

otherwise”). Accordingly, because the filing of a petition now

automatically terminates a petitioner’s grant of voluntary

departure, we conclude that, assuming that 8 C.F.R.

§ 1240.26(i) is valid, we have no authority to issue an equita-

ble stay of Garfias’s voluntary departure period.

2. Whether the Regulation Is Authorized by Statute

[13] The Sixth Circuit has squarely held that 8 C.F.R.

§ 1240.26(i) is a reasonable interpretation of § 1229c(e),

Hachem, 656 F.3d at 438, and several other circuits have

applied the regulation or otherwise noted its existence, see,

e.g., Patel, 619 F.3d at 233-34 (noting that Obale, 453 F.3d

at 157, has been superseded by the regulation); see also

Kimani v. Holder, Nos. 11-1497, 11-2955 2012 WL 3590816

at *1 (7th Cir. Aug. 22, 2012); Qingyun Li v. Holder, 666

F.3d 147, 150 (4th Cir. 2011); Hakim, 611 F.3d at 78;

Sanchez-Velasco v. Holder, 593 F.3d 733, 737 (8th Cir.

2010). We join the Sixth Circuit in finding the regulation to

be a valid exercise of delegated power.

In determining whether an agency regulation is ultra vires,

we apply the two-step Chevron analysis. See Mejia v. Gon-

zales, 499 F.3d 991, 996 (9th Cir. 2007). We hold that Con-

gress has unambiguously granted the Attorney General

authority to control the scope of voluntary departure grants in

12620 GARFIAS-RODRIGUEZ v. HOLDER

§ 1229c and that he has reasonably exercised his authority in

promulgating the regulation.15

Under § 1229c(b)(1), “[t]he Attorney General may permit

an alien voluntarily to depart the United States at the alien’s

own expense if . . . the immigration judge enters an order

granting voluntary departure in lieu of removal.” 8 U.S.C.

§ 1229c(b)(1) (emphasis added). This permissive language

affords the Attorney General discretion to decide whether to

permit voluntary departure after it has been granted by the

immigration judge.16 If the Attorney General makes a decision

not to permit voluntary departure he effectively terminates the

immigration judge’s previous grant. See Van Dinh v. Reno,

197 F.3d 427, 434 (10th Cir. 1999) (noting that “the Attorney

General’s discretion to permit voluntary departure under

§ 1229c(b) is specifically conditioned upon the entry of a sep-

arate order granting voluntary departure by an immigration

judge who must find four conditions to exist before the order

15

Judge Reinhardt claims that voluntary departure under § 1229c(b)(1)

“ha[s] not . . . been thought to involve the relinquishment of procedural

rights.” Reinhardt Dissent. Op. at 12642. But the important question is not

whether post-decisional relief has previously “been thought” to involve

relinquishment of procedural rights, but whether the statute permits it. We

conclude that it does.

16

In dissent, Judge Reinhardt characterizes the statute as simply granting

“the Attorney General—or, in practical terms, his delegees—discretion to

grant or deny voluntary departure at the completion of the immigration

proceeding.” Reinhardt Dissent. Op. at 12648 (emphasis added). Judge

Reinhardt treats § 1229c(b)(1) as if it read “the Attorney General shall

permit an alien voluntarily to depart . . . if the immigration judge enters

an order . . . .” Such a reading violates both the rules of grammar and the

statutory scheme. Compare 8 U.S.C. § 1158(b)(1) (the Attorney General

“may grant asylum” to qualified aliens), with 8 U.S.C. § 1154(b)(1) (the

Attorney General “shall, if . . . [the alien] is eligible . . . approve the peti-

tion” for a visa); see Spencer Enterprises, Inc. v. United States, 345 F.3d

683, 691 (9th Cir. 2003) (“[The language of § 1154(b)] is very distinct

from the discretionary language in the asylum context [§ 1158(b)(1)],

which allows the Attorney General to deny asylum even to those appli-

cants who meet the statutory eligibility requirements.”).

GARFIAS-RODRIGUEZ v. HOLDER 12621

may be granted” and that the Attorney General makes a “sub-

sequent decision to allow the alien to depart voluntarily pur-

suant to that order”); cf. Muigai v. U.S. INS, 682 F.2d 334,

336-37 (2d Cir. 1982) (“The grant or denial of voluntary

departure lies within the broad discretion of the Attorney

General and his delegates in the INS. It is permitted only in

meritorious cases and may be terminated by the Attorney

General upon a showing of abuse.” (citation omitted)). Since

Congress has also granted the Attorney General the general

power to “establish such regulations . . . as [he] determines to

be necessary for carrying out” his authority under the INA, 8

U.S.C. § 1103(g)(2), the Attorney General properly issued 8

C.F.R. § 1240.26(i) pursuant to his discretion to terminate

voluntary departure under 8 U.S.C. § 1229c(b)(1) and his

authority under § 1103(g)(2) to issue regulations he deems

necessary. See Hachem, 656 F.3d at 438 (“The statute makes

clear that the grant of voluntarily departure is a discretionary

matter. No alien is automatically entitled to such a grant. The

Attorney General has reasonably created rules by which this

discretion should be governed, just as the statute empowered

him to do.”).

Moreover, § 1229c(e), provides additional support for 8

C.F.R. § 1240.26(i). Section 1229c(e) expressly authorizes the

Attorney General “by regulation [to] limit eligibility for vol-

untary departure under [§ 1229c] for any class or classes of

aliens.” 8 U.S.C. § 1229c(e) (emphasis added). This section

gives the Attorney General authority to issue regulations

explaining how he will exercise his discretion under

§ 1229c(b)(1). See, e.g., Dekoladenu v. Gonzales, 459 F.3d

500, 506 n.5 (4th Cir. 2006) (“The statute does not guarantee

voluntary departure even to eligible aliens. Rather, it . . .

authorizes the Attorney General to issue regulations limiting

eligibility for voluntary departure for any class or classes of

aliens. As a practical matter, only a relatively small percent-

age of removable aliens are granted voluntary departure.”

(citation omitted) (internal quotation marks omitted) (alter-

ations omitted)), overruled on other grounds by Dada, 554

12622 GARFIAS-RODRIGUEZ v. HOLDER

U.S. at 6-8; Cervantes-Ascencio v. INS, 326 F.3d 83, 86 (2d

Cir. 2003) (“Promulgating limits on eligibility for voluntary

departure involves broad discretion by the INS, as does grant-

ing or denying voluntary departure. This discretionary compo-

nent not only substantially curtails our review authority, but

also precludes entitlement to such relief as a matter of right.”

(citations omitted)). The Attorney General’s regulation is con-

sistent with § 1229c(e) because it is a limitation on eligibility

for voluntary departure for a class of aliens—those who wish

to remain in the United States while appealing from the BIA’s

decision.

In his dissent, Judge Reinhardt argues that the Attorney

General’s regulation is not consistent with § 1229c(e) because

the term “eligibility” under § 1229c(e) does not “encompass

a condition . . . predicated on . . . future actions,” such as an

alien’s decision to pursue an appeal. Reinhardt Dissent. Op.

at 12645. For the reasons we have explained, we disagree

with such a narrow and isolated reading of “eligibility;”17 but

17

It is not clear, as Judge Reinhardt argues, that by using the term “eligi-

bility” Congress intended to limit the Attorney General’s discretion to an

ex ante determination of whether to permit voluntary departure. For exam-

ple, suppose that the immigration judge makes a determination under

§ 1229c(b)(1) that an alien may voluntarily depart, based on the required

finding that “the alien is, and has been, a person of good moral character

for at least 5 years immediately preceding the alien’s application for vol-

untary departure.” 8 U.S.C. § 1229c(b)(1)(B). If shortly thereafter the

alien commits a crime that clearly disqualifies her as a person of good

moral character, the Attorney General may make the determination that

the alien is ineligible for voluntary departure, despite the IJ’s previous

order.

The process is similar to the “two-step process” for asylum in which

“the applicant [must] first . . . establish his eligibility for asylum . . . and

second . . . show that he is entitled to asylum as a matter of discretion.”

Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004); see also Silaya

v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008) (“Once eligibility is

established, it is within the Attorney General’s discretion to grant asy-

lum.”); Zi Zhi Tang v. Gonzales, 489 F.3d 987, 992 (9th Cir. 2007) (“Tang

has established asylum eligibility. We remand for the Attorney General to

GARFIAS-RODRIGUEZ v. HOLDER 12623

even assuming that his reading is correct, 8 C.F.R.

§ 1240.26(i) is still valid. Section 1229c does not specify

when the Attorney General must decide eligibility for volun-

tary departure; it states only that he “may permit” an alien to

voluntarily depart after the immigration judge’s grant of vol-

untary departure. Whenever the Attorney General decides not

to permit voluntary departure, and thereby terminates a grant,

it is a determination of the alien’s eligibility for voluntary

departure at that moment in time. The fact that 8 C.F.R.

§ 1240.26(i) automatically terminates voluntary departure

when an alien files a petition for review does not change the

result—it is still a determination within the Attorney Gener-

al’s discretion that the alien cannot voluntarily depart. The

regulation just announces how the Attorney General will exer-

cise his discretion.

In sum, § 1229c gives the Attorney General discretion

(“may permit”) to prohibit and thereby terminate voluntary

departure in § 1229c(b)(1) and authority to limit eligibility in

§ 1229c(e). Section 1229c does not contain any language that

qualifies this discretion. Indeed, the rest of § 1229c only lists

express limitations on the Attorney General’s authority to

grant voluntary departure. See, e.g., 8 U.S.C.

§ 1229c(a)(2)(A) (imposing a general 120-day maximum on

voluntary departure deadlines); id. § 1229c(b)(1) (imposing

four limitations on the class of aliens eligible for voluntary

departure); id. § 1229c(c) (prohibiting grants of voluntary

departure to aliens “previously permitted to so depart after

having been found inadmissible under section

1182(a)(6)(A)”). Contrary to Judge Reinhardt’s view, Con-

gress did not mandate that the voluntary departure require-

exercise discretion in deciding whether to grant asylum.”); Kumar v. Gon-

zales, 444 F.3d 1043, 1056 (9th Cir. 2006) (“[W]e find Raj statutorily eli-

gible for asylum, and we remand for an exercise of discretion on his

asylum claim . . . .”); Khup v. Ashcroft, 376 F.3d 898, 905 (9th Cir. 2004)

(“Khup is eligible for asylum and [we] remand for the Attorney General

to make a discretionary decision regarding whether to grant asylum.”).

12624 GARFIAS-RODRIGUEZ v. HOLDER

ments listed in § 1229c(b)(1) would be exclusive. Reinhardt

Dissent. Op. at 12641, 12643-44. Instead, Congress plainly

contemplated that the Attorney General might further limit

eligibility and prohibit voluntary departure.

We also note that the Attorney General’s regulation, 8

C.F.R. § 1240.26(i), does not deprive an alien of his funda-

mental right to judicial review or penalize the alien for exer-

cising that right. An alien who files a petition for review is

free to voluntarily depart within 30 days of filing and pursue

the appeal from outside of the United States. See, e.g.,

Contreras-Bocanegra v. Holder, 678 F.3d 811, 813-14, 819

(10th Cir. 2012) (considering an appeal from an alien who

was outside of the country); Jian Le Lin v. U.S. Att’y Gen.,

681 F.3d 1236, 1238 (11th Cir. 2012) (same); Pruidze v.

Holder, 632 F.3d 234, 235 (6th Cir. 2011) (same); Marin-

Rodriguez v. Holder, 612 F.3d 591, 592 (7th Cir. 2010)

(same); see also Nken v. Holder, 556 U.S. 418, 424-25 (2009)

(explaining that Congress has “lifted the ban on adjudication

of a petition for review once an alien has departed”); Dada,

554 U.S. at 22 (noting that Congress has permitted aliens who

have departed the United States to seek judicial review, but

not a motion to reopen); Patel v. Att’y Gen. of U.S., 619 F.3d

230, 235 (3d Cir. 2010) (“[U]nder 8 C.F.R. § 1240.26(i), an

alien does not necessarily lose her right to file a petition for

review. If she voluntarily departs within 30 days of filing a

petition for review and provides evidence that she remains

outside of the United States, she . . . can thus pursue her peti-

tion for review”). If an alien chooses to remain in the United

States to pursue the appeal, the regulation does not penalize

the alien for exercising the fundamental right to judicial

review; rather, it penalizes the alien for remaining in the

United States illegally while the appeal is pending.

The Attorney General’s regulation may alter the alien’s

incentives to appeal, but it ultimately balances the interests of

the alien and those of the government. Voluntary departure

represents a quid pro quo between the alien and the govern-

GARFIAS-RODRIGUEZ v. HOLDER 12625

ment. Dada v. Mukasey, 554 U.S. 1, 11 (2008). As the

Supreme Court explained, “[i]f the alien is permitted to stay

in the United States past the departure date to wait out the

adjudication of the motion to reopen, he or she cannot then

demand the full benefits of voluntary departure; for the bene-

fit to the Government—a prompt and costless departure—

would be lost.” Id. at 19-20. That same benefit is lost to the

government if an alien files a petition for review. The Attor-

ney General’s regulation restores the quid pro quo between

the government and the alien.

[14] In light of the broad grant of discretion over voluntary

departure in both § 1229c(b)(1) and § 1229c(e), we hold that

the promulgation of 8 C.F.R. § 1240.26(i) was a proper exer-

cise of the Attorney General’s authority.

IV. CONCLUSION

[15] We defer to the BIA’s holding that aliens who are

inadmissible under INA § 212(a)(9)(C)(i)(I) may not seek

adjustment of status under § 245(i). Furthermore, we hold that

under the five-factor test of Montgomery Ward, this rule can

properly be applied to Garfias because he filed his § 245(i)

application before any court ruled he was eligible to do so.

Finally, we hold that 8 U.S.C. § 1229c(e) unambiguously pro-

vides the Attorney General with the authority to promulgate

8 C.F.R. § 1240.26(i), and that Garfias’s grant of voluntary

departure terminated upon his decision to file a petition for

review.

PETITION DENIED.

12626 GARFIAS-RODRIGUEZ v. HOLDER

Chief Judge KOZINSKI, disagreeing with everyone:

The law is unsettled in many areas and parties often don’t

know the precise rule that applies to their past conduct until

their case is decided. Thus, retroactivity issues lurk in many,

perhaps all cases, yet we don’t routinely conduct retroactivity

analysis. Before we go into retroactivity mode, we must first

determine whether this case involves a retroactive application

of law. Because it doesn’t, we have no reason to discuss retro-

activity.

A law is retroactive when it “attaches new legal conse-

quences to events completed” before it went into effect—a

determination guided by considerations of “fair notice, rea-

sonable reliance, and settled expectations.” Vartelas v.

Holder, 132 S. Ct. 1479, 1491 (2012) (internal quotation

marks omitted). INS v. St. Cyr, 533 U.S. 289 (2001), illus-

trates a classic example of a retroactive law. The petitioner

there pled guilty “almost certainly” in reliance that doing so

would preserve his chance to seek section 212(c) relief—a

“waiver of deportation” granted “at the discretion of the

Attorney General.” Id. at 293-94, 323, 325. St. Cyr thus took

an action in the real world—giving up his rights to a fair trial,

to a jury of his peers, to the presumption of innocence, to

proof beyond a reasonable doubt—in exchange for a limited

punishment that did not include losing his eligibility for

212(c) relief. Id. at 325. It was that completed act—the guilty

plea—that animated the Court’s conclusion that the statute

was impermissibly retroactive. Id.; see also Vartelas, 132 S.

Ct. at 1483-84 (holding that an IIRIRA provision was imper-

missibly retroactive because it “attached a new disability” to

Vartelas’s pre-IIRIRA guilty plea and conviction).

Garfias can’t point to any similar action that he is “helpless

to undo,” see Vartelas, 132 S. Ct. at 1489 (internal quotation

marks omitted), to which today’s holding attaches new legal

consequences. Nor can he point to any settled law that today’s

holding unsettles by imposing an additional burden on his

GARFIAS-RODRIGUEZ v. HOLDER 12627

past conduct. See id. at 1490-92. There are, in fact, three sepa-

rate reasons why retroactivity analysis has no place in today’s

opinion.

1. Garfias has done absolutely nothing in the real world that

would trigger a retroactivity analysis, even if there had been

settled law he could have counted on. But see pp. 12628-29

infra (no settled law). Garfias entered and remains in the

United States illegally, and that kind of ongoing conduct is

certainly not entitled to solicitude under retroactivity analysis.

See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 46 & n.13

(2006). The only completed act Garfias can point to that

might trigger retroactivity concerns is his application for

adjustment of status, which required Garfias to bring himself

out of the shadows and thereby increased his chances of being

deported. But Garfias is not entitled to continue defying this

country’s immigration laws by keeping himself hidden from

the authorities; he has no “right to continue illegal conduct

indefinitely under the terms on which it began.” See id. If fil-

ing his application “risked awakening the sleeping bureau-

cratic giant who might then resolve to initiate deportation

proceedings,” that is “a risk [ ]he always faced.” Hernandez

de Anderson v. Gonzales, 497 F.3d 927, 946 (9th Cir. 2007)

(Tallman, J., concurring in part and dissenting in part); cf.

Duran Gonzales v. U.S. Dep’t of Homeland Sec., 659 F.3d

930, 940-41 (9th Cir. 2011).

I am aware of Ixcot v. Holder, 646 F.3d 1202, 1210-14 (9th

Cir. 2011), which holds that an illegal alien’s decision to

apply for discretionary relief is a sufficient past event to trig-

ger retroactivity analysis. Ixcot echoes the reasoning of Her-

nandez de Anderson, where Judge Tallman quite properly

dissented. See supra. We should take this opportunity to extir-

pate the Hernandez-Ixcot heresy, rather than perpetuating it.

But cf. maj. op. at 12614 (“Nothing in [In re Briones, 24 I. &

N. Dec. 355 (BIA 2007),] ‘impair[s] rights a party possessed

when he acted, increase[s] a party’s liability for past conduct,

or impose[s] new duties with respect to transactions already

12628 GARFIAS-RODRIGUEZ v. HOLDER

completed.”’ (quoting Landgraf v. USI Film Prods., 511 U.S.

244, 280 (1994)).

2. There is another, independent reason Garfias’s case

doesn’t trigger retroactivity analysis: At the time he applied

for adjustment of status, there was no law resolving the statu-

tory ambiguity at issue here in his favor. Briones thus didn’t

create a new legal burden that didn’t exist under “[t]he law

then in effect.” Landgraf, 511 U.S. at 282 n.35. Garfias claims

that Briones changed the law from our ruling in Acosta v.

Gonzales, 439 F.3d 550, 556 (9th Cir. 2006), but Acosta was

issued four years after he applied to become a permanent resi-

dent pursuant to INA section 245(i). See maj. op. at 12589.

His only guidance when deciding whether to apply was the

text of the INA, which included section 212(a)(9)(C)—a pro-

vision that seemed on its face to make him inadmissible. See

maj. op. at 12589, 12591, 12615. The “obvious” tension

between sections 245(i) and 212(a)(9)(C) meant that Garfias

could have had no assurance that any subsequent interpreta-

tion of their interplay would be in his favor. Maj. op. at

12615.

Briones thus doesn’t attach a new legal consequence to

Garfias’s decision to apply for adjustment of status. See Var-

telas, 132 S. Ct. at 1491; cf. Judulang v. Holder, 132 S. Ct.

476, 489 n.12 (2011) (rejecting alien’s argument that two BIA

decisions were impermissibly retroactive on the grounds that

the agency’s “prior practice” in that area of the law was “so

unsettled”). He is not situated similarly to the class of individ-

uals who applied for adjustment of status after Acosta and

before Briones. Accordingly, we have no occasion to consider

the impact of applying Briones to everyone “who sought

adjustment of status in reliance on Acosta,” as Judge Paez

urges. See Paez dissent at 12659-60, 12666, 12668. We can

make that decision when we get a petitioner who filed for

relief after Acosta. See Singh v. Napolitano, 649 F.3d 899,

901 n.1 (9th Cir. 2011) (per curiam).

GARFIAS-RODRIGUEZ v. HOLDER 12629

3. But even if Garfias had applied to adjust his status during

the twenty-one month window between Acosta and Briones,

his case still wouldn’t merit retroactivity analysis because

Briones didn’t change the law; it settled the law. See Nunez-

Reyes v. Holder, 646 F.3d 684, 691-92 (9th Cir. 2011) (en

banc); Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333

(9th Cir. 1982) (balancing test applies when necessary to pro-

tect “a regulated party’s interest in being able to rely on the

terms of a rule as it is written” (emphasis added)). An agency

is the “authoritative interpreter” “of an ambiguous statute [it]

is charged with administering” so long as its interpretation is

“within the limits of reason.” Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005).

No one should have been surprised by the interpretation

announced in Briones. It was clearly foreshadowed by the

BIA’s earlier ruling in In re Torres-Garcia, 23 I. & N. Dec.

866 (BIA 2006), which predated Acosta by a month and held

that an alien who was inadmissible under another provision of

section 212(a)(9)(C) couldn’t apply for adjustment of status

under section 245(i). See generally maj. op. at 12592-94.

Acosta’s interpretation of the statutory ambiguity clarified in

Briones was provisional, not authoritative, for purposes of

retroactivity analysis. See Brand X, 545 U.S. at 982-83.

Authoritative interpreters operate by the Highlander principle:

“There can be only one.”

The majority opinion at least recognizes that the BIA is the

“authoritative arbiter of the meaning of the ambiguous provi-

sions of the INA at issue here,” but then goes astray in sug-

gesting that our interpretation of the provisions was

“authoritative . . . at least until” the BIA issued Briones. Maj.

op. at 12602. Thus, Garfias and the majority contend, the

BIA’s interpretation that contradicts our earlier interpretation

in Acosta “brought about [a] change in the law.” Maj. op. at

12600 n.7, 12603-04. Bosh. Brand X makes it perfectly clear

that “a court’s opinion as to the best reading of an ambiguous

statute an agency is charged with administering is not authori-

12630 GARFIAS-RODRIGUEZ v. HOLDER

tative.” Brand X, 545 U.S. at 983 (emphasis added). Briones

didn’t change the law; it set it.

Nor can I agree with the majority’s gratuitous discussion of

separation of powers and its conclusion that “we must treat an

agency decision that is contrary to a ruling previously set

forth by a court of appeals and, as a result of Chevron and

Brand X, prompts the court of appeals to defer to the agency,

as we would if the agency had changed its own rules.” Maj.

op. at 12601-04. I find this discussion opaque and confusing

—and not the least bit helpful.

The Supreme Court has made it clear that, in those areas

where agencies have been delegated interpretive responsibil-

ity by Congress, they and they alone can speak with the

authority as to what the law means. See, e.g., Brand X, 545

U.S. at 982-83; Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-45 (1984); see also Peter L.

Strauss, “Deference” is Too Confusing—Let’s Call Them

“Chevron Space” and “Skidmore Weight,” 112 Colum. L.

Rev. 1143, 1145-48 (2012). It’s as if Congress gave these

agencies magic fountain pens that they can use to interlineate

the statutory text in order to fill gaps and resolve ambiguities.

Our job is to apply the law to individual cases, based on the

normal rules of construction, which include the requirement

that we follow the authoritative interpretation of an agency.

Where the agency has not yet spoken, our ruling is necessarily

provisional and subject to correction when the agency chooses

to adopt its own interpretation of the statute. See Kathryn A.

Watts, Adapting to Administrative Law’s Erie Doctrine, 101

Nw. U. L. Rev. 997, 1000-01 (2007).

We do, of course, set the law of the circuit, which is bind-

ing on all the courts—until the agency speaks. At that point

we, along with every other court, are bound by a reasonable

interpretation adopted by the agency. It is sophistry to claim,

as the majority does, that this amounts to an agency changing

its own rules—as if we were speaking on behalf of the agency

GARFIAS-RODRIGUEZ v. HOLDER 12631

when we adopted our earlier interpretation. It’s far simpler

and more correct to say that we took an educated guess as to

what the statute meant, just as we often guess what state laws

mean in the absence of authoritative guidance from the state

supreme court. Cf. Brand X, 545 U.S. at 983-84; United Gas

Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 135 (1962)

(per curiam). But when a state supreme court later contradicts

us, we surely wouldn’t say that the state court changed its

mind. I see no point in adopting this fiction, and cannot join

the rest of the panel in overruling our precedents cited on

page 12603 of the majority opinion.

***

The majority claims that I “conflate[ ] the result of a retro-

activity analysis with the process of conducting it.” Maj. op.

at 12604. But we’ve held that where an agency’s decision

“would not have a retroactive effect . . . , we need not reach

the less stringent standard set forth in Montgomery Ward.”

Singh, 649 F.3d at 901 n.1; see also Judulang, 132 S. Ct. at

489 n.12. The majority fails to acknowledge that there are

cases that don’t require retroactivity analysis because they

don’t involve a retroactive application of the law. The major-

ity also doesn’t give us any way to distinguish cases that raise

a legitimate retroactivity question from those that do not, or

even bother to explain why this case falls into the former cate-

gory rather than the latter. What are those charged with apply-

ing our law to gather from this? That it’s up to every judge

and every panel to conduct a retroactivity analysis whenever

they feel it in their guts that the law is being applied retroac-

tively?

The majority is also wrong when it suggests that my

approach is equivalent to its own. See maj. op. at 12604-05 &

n.9. I’ve advanced three separate reasons why I believe this

case doesn’t involve retroactive application of the law, but I

don’t need all three to reach that conclusion; any one, stand-

ing alone, would be enough. I engage in no balancing and

12632 GARFIAS-RODRIGUEZ v. HOLDER

weighing of factors against each other, whereas my col-

leagues do.

Balancing involves uncertainty because you have to predict

how different judges will assess the factors, which is not

always an easy task. This case illustrates my point: Having

launched themselves into retroactivity mode, six of my col-

leagues pick one test while three others pick a different test.

Compare maj. op. at 12625, with Paez dissent at 12668-69,

and Gould conc. at 12632. One judge believes that either test

comes to the same result, see Graber partial conc. at

12634-35, and another agrees with the majority’s conclusion

while applying the test favored by the dissent, see Gould

conc. at 12632. As an en banc court, we have a responsibility

to bring clarity to our law. By the time lawyers in this circuit

get through reading all of our opinions, they’ll be thoroughly

confused.

I concur in Subsection III.B, maj. op. at 12599-12616, only

to the extent that I agree Briones applies to Garfias. I join in

the rest of the opinion.

GOULD, Circuit Judge, concurring:

I concur in the outcome of the majority opinion, and could

join most of its analysis except for its decision in part III.B.3

to apply the test from Montgomery Ward & Co. v. FTC, 691

F.2d 1322, 1328 (9th Cir. 1982) for when agency decision

should be applied retroactively. I also agree with most of the

reasoning in the dissent of Judge Paez as to why the retroac-

tivity test of Chevron Oil v. Huson, 404 U.S. 97 (1971) should

be applied rather than Montgomery Ward. But I part company

with Judge Paez’s dissent as to its application of the Chevron

Oil standard.

I would apply the three-factor test for retroactivity set forth

in Chevron Oil to conclude that the rule of In re Briones, 24

GARFIAS-RODRIGUEZ v. HOLDER 12633

I. & N. Dec. 355 (BIA 2007), that we adopt today, should be

applied retroactively. We have said that we must apply the

Chevron Oil test where “we announce a new rule of law that

does not concern our jurisdiction.” Nunez-Reyes v. Holder,

646 F.3d 684, 692 (9th Cir. 2011) (en banc) (emphasis

added). Even though we now change our interpretation of the

interplay between §§ 1182(a)(9)(C)(i)(I) and 1255(i) because

the Supreme Court, in National Cable & Telecommunications

Association v. Brand X Internet Services, 545 U.S. 967

(2005), has told us to defer to the BIA’s authoritative interpre-

tation of the ambiguities in the INA, it is our court that is

announcing a new rule of law for our circuit, not the BIA.

Indeed, although Brand X characterizes the subsequent and

contrary agency interpretation here as authoritative, the BIA’s

interpretation does not become binding in this circuit until we

defer to that interpretation. See Nunez-Reyes, 646 F.3d at 692

(“There is no question that our decision today establishes a

new principle of law . . . by overruling clear past precedent

on which litigants may have relied.”) (internal quotation

marks and alterations omitted).

Brand X does not transform the nature of our decision into

an agency decision. Whether we adopt a new rule because of

changed views on a complex analysis of underlying law, or

because of a simple flash of insight accepted and followed, or

because of our duty to abide Supreme Court precedent, our

decision remains a judicial decision. The judicial power under

Article III is in the courts, not in an agency with responsibili-

ties relating to the decision.

I would apply the Chevron Oil test to conclude that the rule

of Briones that we adopt today should apply retroactively.

“The three Chevron Oil factors are: (1) whether the decision

establishes a new principle of law; (2) whether retrospective

operation will further or retard the rule’s operation in light of

its history, purpose, and effect; and (3) whether our decision

could produce substantial inequitable results if applied retro-

actively.” Id. at 692 (internal quotation marks, alterations, and

12634 GARFIAS-RODRIGUEZ v. HOLDER

citations omitted). How does that test apply to the circum-

stances presented here?

First, it is unmistakable that our decision establishes a new

principle of law because we overrule clear precedent estab-

lished by Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006).

Second, I conclude that a “retrospective operation” of the

Briones rule would “further . . . the rule’s operation in light

of its history, purpose, and effect,” because § 1255(i) aims to

give relief to a narrow group of aliens instead of to all those

who have been deemed inadmissible for any reason. See

Briones, 24 I. & N. Dec. at 359-60. Third, because the BIA

clarified its position on the interplay between

§§ 1182(a)(9)(C)(i)(I) and 1255(i) about 21 months after our

decision in Acosta, I conclude that our decision here would

not produce substantial inequitable results if applied retroac-

tively. See Nunez-Reyes, 646 F.3d at 692-94 (describing a 10-

year period during which aliens may have relied on our deci-

sion in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.

2000) to forego their right to a jury trial by pleading guilty to

simple possession charge with the expectation of no adverse

immigration consequences). As the majority points out, an

alien who relied on our decision in Acosta had notice of its

vulnerability as soon as Briones was issued. And, unlike in

Nunez-Reyes where there was detrimental reliance because

the alien waived important constitutional rights by relying on

Lujan-Armendariz which we then overruled, here the main

interest implicated is the alien’s prerogative to continue to

conceal his unlawful presence, an interest that, the majority

points out, is of no legal significance. See Nunez-Reyes, 646

F.3d at 693-94. For these reasons, I conclude that our decision

today should apply retroactively, hence my concurrence in the

majority’s result.

GARFIAS-RODRIGUEZ v. HOLDER 12635

GRABER, Circuit Judge, concurring in part and dissenting in

part:

I join Parts III-A and III-B of the majority opinion. It is a

close question whether Chevron Oil Co. v. Huson, 404 U.S.

97 (1971), or Montgomery Ward & Co. v. FTC, 691 F.2d

1322 (9th Cir. 1982), provides the better framework for decid-

ing the retroactivity issue when both an agency and a court

(deferring to the agency’s interpretation) change their con-

struction of an ambiguous statute. Even if the Chevron Oil

test applied here, however, I agree with Judge Gould’s analy-

sis of it. That is, under either framework, retroactive applica-

tion of the new legal rule is appropriate.

I also join Part II of Judge Reinhardt’s dissent, which con-

cludes that 8 C.F.R. § 1240.26(i) exceeds the Attorney Gener-

al’s statutory authority.

REINHARDT, Circuit Judge, with whom PAEZ, Circuit

Judge, joins, and with whom GRABER, Circuit Judge, joins

as to Part II, dissenting:

I join in Judge Paez’s dissent, which ably explains why the

Chevron Oil test should guide our analysis regarding the

adjustment of status issue, and why today’s holding in that

regard should apply prospectively only.

I write separately to express my disagreement with the

majority’s decision, in Part III(C) of its opinion, to uphold the

Attorney General’s regulation automatically terminating vol-

untary departure in the event that a non-citizen has the temer-

ity to file a petition for review of the BIA’s decision on the

underlying issue with the court of appeals. 8 C.F.R.

§ 1240.26(i). The Attorney General’s regulation effectively

penalizes non-citizens for exercising a fundamental right in

the American legal system: the right to judicial review of

12636 GARFIAS-RODRIGUEZ v. HOLDER

executive action. The regulation is incompatible with the stat-

utory scheme establishing voluntary departure and thus an

improper exercise of the powers delegated to the Attorney

General. The majority’s decision to uphold the regulation is

not only erroneous as a matter of law, but also, ultimately,

renders our justice system less worthy of its name.

I.

“The very essence of civil liberty certainly consists in the

right of every individual to claim the protection of the laws.”

So proclaimed Chief Justice John Marshall in Marbury v.

Madison, one of our country’s earliest cases reviewing execu-

tive action. 5 U.S. (1 Cranch) 137, 163 (1803). In the years

since, the presumption of judicial review over administrative

actions has become a fundamental principle of American law.

See INS v. St. Cyr, 533 U.S. 289, 298 (2001).

This commitment to judicial review is particularly impor-

tant in the review of decisions regarding removal. Few deci-

sions will be more consequential in an individual’s life than

the decision to forcibly remove him from the country. The

relief that a non-citizen seeks from immigration authorities is

the last resort that a non-citizen has before being returned,

against his will, to a country where he may have no ties or

family, or where he may be subjected to imprisonment, tor-

ture, or certain death. Recognizing the gravity of such pro-

ceedings, we have asserted numerous times that non-citizens

in removal hearings are entitled to due process protections

under the Fifth Amendment. See Campos-Sanchez v. INS, 164

F.3d 448, 450 (9th Cir. 1999). We have explained that, con-

sistent with that entitlement, non-citizens “must receive a ‘full

and fair hearing.’ ” Id.

Our court has joined the chorus of circuit courts lamenting

frequent errors by Immigration Judges and the Board of

Immigration Appeals in the handling of these important cases.

See, e.g., Cruz Rendon v. Holder, 603 F.3d 1104, 1111 n.3

GARFIAS-RODRIGUEZ v. HOLDER 12637

(9th Cir. 2010) (“We are deeply troubled by the IJ’s conduct

in this case, which exhibits a fundamental disregard for the

rights of individuals who look to her for fairness.”); Mohamed

v. Ashcroft, 400 F.3d 785, 792 (9th Cir. 2005) (“Not only was

the BIA’s opinion an example of sloppy adjudication, it con-

travened considerable precedent.”); Colemnar v. INS, 210

F.3d 967, 973 (9th Cir. 2000) (“Judges do little to impress the

world that this country is the last best hope for freedom by

displaying the hard hand and closed mind of the forces asy-

lum seekers are fleeing.”); see also, e.g., Benslimane v. Gon-

zales, 430 F.3d 828, 829-30 (7th Cir. 2005) (noting criticism

of the BIA and IJ’s by other circuit courts and concluding that

the “adjudication of [immigration] cases at the administrative

level has fallen below the minimum standards of legal jus-

tice”). It is thus not surprising that both the Supreme Court

and our court frequently reject interpretations that would

eliminate judicial review of these decisions. See, e.g., Kucana

v. Holder, 130 S. Ct. 827, 839-40 (2010) (“When a statute is

reasonably susceptible to divergent interpretation, we adopt

the reading that accords with traditional understandings and

basic principles: that executive determinations generally are

subject to judicial review.” (internal quotation omitted)); Bar-

rios v. Holder, 581 F.3d 849, 857 (9th Cir. 2009); but see

Planes v. Holder, 686 F.3d 1033, 1037 (9th Cir. 2012) (Rein-

hardt, J., dissenting from denial of rehearing en banc) (noting

the panel’s “inexplicable” decision to permit non-citizens to

“be deported immediately after a trial court enters a judgment

of guilt against them in a criminal case, before they have had

the opportunity to obtain appellate review of their convic-

tions”).

Despite all this, the Attorney General’s new regulation

imposes drastic consequences on those non-citizens who seek

nothing more than to have a court review what may be the

single most significant legal action that will ever affect them.

Prior to this regulation, a non-citizen who was granted volun-

tary departure at the conclusion of his removal proceedings

was free to seek judicial review of the order requiring him to

12638 GARFIAS-RODRIGUEZ v. HOLDER

leave the country, without jeopardizing his voluntary departure.1

We held that we had the equitable authority to stay the volun-

tary departure period while a non-citizen’s petition for review

was pending before our court. El-Himri v. Ashcroft, 344 F.3d

1261, 1262-63 (9th Cir. 2003); see also Dada v. Mukasey, 554

U.S. 1, 10 (2008) (noting agreement of some other circuits

and declining to address the question). The new regulation,

which went into effect on the last day of Attorney General

Mukasey’s tenure in office,2 punishes those non-citizens who

have been granted voluntary departure for seeking judicial

review, by terminating the grant of voluntary departure: “If,

prior to departing the United States, the alien files a petition

for review . . . or any other judicial challenge to the admin-

istratively final order, any grant of voluntary departure shall

terminate automatically upon the filing of the petition or other

judicial challenge . . . .” 8 C.F.R. § 1240.26(i) (emphasis

added).

The disability imposed by the Attorney General’s new

regulation—forcing non-citizens to forgo their voluntary

departure and instead depart under an order of removal, sim-

ply because they have exercised their right to judicial review

—is substantial. A non-citizen gains numerous benefits from

not being forcibly removed from the country. Voluntary

departure not only permits non-citizens the time and freedom

to organize their affairs in the United States before departing,

but also provides legal benefits. Non-citizen who depart under

an order of removal are barred for ten years from being admit-

ted to the country. See 8 U.S.C. § 1182(a)(9)(A)(ii). Non-

citizens who are ordered removed, who have accumulated at

1

As explained below, non-citizens who are granted “pre-decisional”

voluntary departure (that is, either prior to or during removal proceedings),

and who forgo all other claims for relief, necessarily waive their right to

appeal.

2

See Voluntary Departure: Effect of a Motion To Reopen or Reconsider

or a Petition for Review, 73 Fed. Reg. 76,927, 76,927 (Dec. 18, 2008)

(final rule) (“This rule is effective January 20, 2009.”).

GARFIAS-RODRIGUEZ v. HOLDER 12639

least one year of illegal presence in the country, and who later

re-enter the country are subject to a life-long bar on their pres-

ence in the United States. 8 U.S.C. § 1182(a)(9)(C)(i).3 Those

who are ordered removed and re-enter are also subject to

criminal prosecution. 8 U.S.C. § 1326. None of these conse-

quences, however, apply to individuals who are granted vol-

untary departure.

It is particularly perverse that the Attorney General, in

attempting to deter non-citizens from seeking judicial review,

has chosen to target those non-citizens who are granted volun-

tary departure at the conclusion of their proceedings. The

qualifications for such “post-decisional” departure are not

easy to meet: non-citizens who have been granted that form

of relief must establish that they have been present in the

United States for at least one year, that they have been of

good moral character for at least the previous five years, that

they have not committed certain criminal or other offenses,

and that they have both the financial means to depart the

country and the intent to do so. 8 U.S.C. § 1229c(b)(1). Of all

non-citizens, those present in the country for a substantial

period of time, who have been of good moral character, and

who have not committed crimes would seem to be those

whom the government might want to take the most care to

prevent from being erroneously removed, and thus to ensure

that they are not dissuaded from seeking judicial review. Yet

it is these non-citizens, and only these non-citizens, who are

being required to forfeit their right to judicial review under

the Attorney General’s regulation.

The Attorney General and the majority defend the regula-

tion by arguing that non-citizens are perfectly free to pursue

their petitions for review from abroad. This argument is spe-

3

Both of these bars are subject to waiver, although only at the discretion

of the Attorney General or the Secretary of Homeland Security, and, in the

case of the lifetime bar, only after 10 years. See 8 U.S.C.

§ 1182(a)(9)(A)(iii), (a)(9)(C)(ii).

12640 GARFIAS-RODRIGUEZ v. HOLDER

cious at best. For many non-citizens, the ability to pursue a

petition for review from abroad is entirely meaningless. Many

non-citizens face persecution, torture, or even death if they

return home to their country. For them, the option to return

home to face such horrors while a court of appeals considers

rectifying any error by the BIA is no option at all.4 Further,

it is far from clear that the Attorney General actually has the

capability to effectively return such a non-citizen to the

United States in the event that a court (or the BIA upon

remand from judicial review) were to grant relief to a non-

citizen who departed. The Solicitor General’s office recently

admitted that its prior representations to that effect were less

than forthcoming. See Letter of April 24, 2012, from Deputy

Solicitor General Michael R. Dreeben at 4, Nken v. Holder,

556 U.S. 418 (2009) (No. 08-681) (“[T]he government is not

confident that the process for returning removed aliens, either

at the time its brief was filed or during the intervening three

years, was as consistently effective as the statement in its

brief in Nken implied.”).5

II.

One need not agree with all of the above legal criticisms of

the Attorney General’s regulation, however, in order to find

that it was not within his authority to enact it. As set forth

below, the Attorney General’s regulation is neither a reason-

able interpretation of the voluntary departure statute nor, as

the Attorney General argues, a permissible exercise of his

power to limit “eligibility” for voluntary departure. The regu-

4

In addition, this defense offers no answer to the other regulation,

enacted as part of the same rule-making process, that terminates voluntary

departure upon a non-citizen’s filing of a motion to reopen. 8 C.F.R.

§ 1240.26(e)(1). Motions to reopen terminate automatically upon a non-

citizen’s departure from the country. See Dada v. Mukasey, 554 U.S. 1,

5 (2008) (“departure has the effect of withdrawing [a] motion to reopen”).

5

Available online at http://online.wsj.com/public/resources/documents/

return.PDF.

GARFIAS-RODRIGUEZ v. HOLDER 12641

lation must be struck down as ultra vires and unreasonable,

and the majority errs in holding to the contrary.

A.

The statutory provision that creates voluntary departure for

certain individuals who have been ordered removed (“post-

decisional” voluntary departure) nowhere mentions the relin-

quishment of procedural rights. See 8 U.S.C. § 1229c(b). The

Attorney General argues that his interpretation of the statute

as containing such a requirement is a permissible exercise of

his interpretive authority. Even assuming that the Attorney

General’s regulation is entitled to Chevron deference, how-

ever, it may be upheld only to the extent that it is “reasonable

in light of the legislature’s revealed design.” Ariz. Health

Care Cost Containment Sys. v. McClellan, 508 F.3d 1243,

1249 (9th Cir. 2007) (quoting United States v. Haggar

Apparel Co., 526 U.S. 380, 392 (1999)) (internal quotations

omitted). Viewed in this light, it is clear that the Attorney

General’s regulation cannot be said to be consistent with Con-

gress’s revealed design of the voluntary departure statute.

Voluntary departure is the name given to two distinct types

of statutorily-provided relief from removal. See 8 U.S.C.

§ 1229c(a), (b). Each type of voluntary departure reflects a

careful, congressionally-crafted balance of incentives and

obligations. The first form of voluntary departure is available

to non-citizens either “in lieu of being subject to [removal]

proceedings . . . or prior to the completion of such proceed-

ings.” 8 U.S.C. § 1229c(a)(1). This pre-decisional voluntary

departure, as suggested by the fact that it must occur before

the completion of removal proceedings, necessarily involves

the relinquishment of certain procedural rights, including the

right to petition for review. Thus, as the Attorney General has

made clear, eligibility for this type of pre-decisional voluntary

departure naturally requires that a non-citizen forgo the

opportunity to apply for other types of relief from removal,

such as an application for asylum, relief under the Convention

12642 GARFIAS-RODRIGUEZ v. HOLDER

Against Torture, or cancellation of removal. See In re

Arguelles-Campos, 22 I. & N. Dec. 811, 814-16 (BIA 1999)

(“If an alien applies for voluntary departure before the conclu-

sion of removal proceedings, no additional relief may be

requested. If additional relief has been requested, such a

request must be withdrawn.”); 8 C.F.R. § 1240.26(b)(1)(i)(B).

This also naturally requires that a non-citizen waive his right

to petition for review of any issues regarding the removal pro-

ceedings. See 8 C.F.R. § 1240.26(b)(1)(i)(D).

The second form of voluntary departure, however, had not

—at least, until the time of Attorney General Mukasey’s

regulation—been thought to involve the relinquishment of

procedural rights. Rather, this second, post-decisional form of

voluntary departure was available to all non-citizens “at the

conclusion” of removal proceedings, regardless of whether

they subsequently decided to seek judicial review. 8 U.S.C.

§ 1229c(b). As explained above, our circuit joined many oth-

ers in finding that such voluntary departure was entirely con-

sistent with judicial review. In accordance with the fact that

post-decisional voluntary departure requires the government

to expend additional resources pursuing a non-citizen’s

removal, the eligibility requirements for such post-decisional

voluntary departure are significantly heightened. Although the

eligibility requirements for pre-decisional voluntary departure

are not particularly onerous,6 Congress rendered the eligibility

requirements for post-decisional voluntary departure substan-

tially more difficult to meet, requiring a mandatory length of

presence in the United States and good moral character, and

imposing other significant conditions. 8 U.S.C. § 1229c(b)(1).

Congress thus limited post-decisional voluntary departure to

6

The only non-citizens rendered ineligible for such departure are those

who have been convicted of an aggravated felony or those who have

engaged in (or been associated with) terrorist activities. 8 U.S.C.

§ 1229c(a)(1). In addition, non-citizens who are arriving in the United

States and who are placed in removal proceedings may not apply for pre-

hearing voluntary departure, although they may voluntarily withdraw their

applications for admission. 8 U.S.C. § 1229c(a)(4).

GARFIAS-RODRIGUEZ v. HOLDER 12643

only a small subset of the non-citizens who complete removal

proceedings. Consistent with this principle, Congress also dif-

ferentiated between the forms of relief available under each

type of voluntary departure. Whereas non-citizens granted

pre-decisional voluntary departure may be given up to 120

days to voluntarily depart the country, and are not categori-

cally required to post a bond, 8 U.S.C. § 1229c(a)(2)(A),

(a)(3), non-citizens granted post-decisional voluntary depar-

ture are given only 60 days to depart, and are required by stat-

ute to post a bond for the costs of their departure, 8 U.S.C.

§ 1229c(b)(2)-(3).

The BIA has recognized the important distinction between

these two statutory forms of relief, despite the fact that they

have the same name:

It is clear from the significant differences between

voluntary departure under sections 240B(a) and

240B(b) of the Act [respectively, 8 U.S.C.

§ 1229c(a) and (b)] that Congress intended the two

provisions to be used for different purposes. While

the requirements for voluntary departure under sec-

tion 240B(b) resemble those of voluntary departure

under former section 244(e) in deportation proceed-

ings, section 240B(a) requires much less from the

alien. Under section 240B(a), an alien need not show

that he has good moral character or that he has the

financial means to depart the United States. An alien

must request section 240B(a) relief either in lieu of

being subject to proceedings, or early in removal

proceedings. He must also voluntarily forego all

other forms of relief. Thus, Immigration Judges can

use section 240B(a) relief to quickly and efficiently

dispose of numerous cases on their docket, where

appropriate. We accept the need for such a tool and

support its purpose.

Arguelles-Campos, 22 I. & N. Dec. at 817. The BIA thus has

recognized that not only did Congress purposefully intend to

12644 GARFIAS-RODRIGUEZ v. HOLDER

draw an important distinction between these two types of

relief, but that the relinquishment of procedural rights was

central to the distinction between the two.

With this new regulation, however, the Attorney General

has violated that congressional design, by inserting a require-

ment for the relinquishment of procedural rights into the post-

decisional voluntary departure process. Although, in some

instances, it might be appropriate for an agency to read sub-

stantive provisions into congressional silence, here, Con-

gress’s “revealed design” forbids the Attorney General from

doing so. See Haggar Clothing, 526 U.S. at 392 (“[A] court

may conclude the regulation is inconsistent with the statutory

language or is an unreasonable implementation of it. In those

instances, the regulation will not control.”). The Attorney

General could not subvert the statutory design by, for exam-

ple, limiting pre-decisional voluntary departure to only those

non-citizens who are eligible for post-decisional voluntary

departure, so as to essentially eliminate the distinction

between eligibility for the two forms of statutory relief. See

Arguelles-Campos, 22 I. & N. Dec. at 817 (enumerating the

different eligibility requirements as a hallmark of the “differ-

ent purposes” Congress intended for each form of voluntary

departure). The Attorney General is equally barred from elim-

inating the distinction between the procedural prerequisites

for these two forms of relief, by requiring the relinquishment

of the right to judicial review as part of exercising the statu-

tory entitlement to post-decisional voluntary departure.

Thus, the Attorney General’s regulation automatically ter-

minating voluntary departure is simply inconsistent with the

statutory scheme. It cannot be upheld as a permissible exer-

cise of the Attorney General’s authority to interpret the volun-

tary departure statute.

B.

The Attorney General seeks to defend his regulation by

pointing to 8 U.S.C. § 1229c(e), which permits him, by regu-

GARFIAS-RODRIGUEZ v. HOLDER 12645

lation, to “limit eligibility for voluntary departure under this

section for any class or classes of aliens.” The majority essen-

tially suggests that this provision constitutes carte blanche for

the Attorney General to prohibit voluntary departure in any

way he pleases and at any time he pleases, including after

final administrative action affirming a grant of voluntary

departure. In doing so, it errs.

The majority’s reading is contrary to the unambiguous

command of the statute, which, by its very terms, grants the

Attorney General authority to limit only “eligibility” for vol-

untary departure. The plain meaning of the term “eligibility”

simply does not encompass a condition, such as the one here,

predicated on a non-citizen’s future actions—that is, a condi-

tion predicated on events that are unknown and unknowable

at the time that a determination is made. Rather, the meaning

generally implies some ascertainable state of being at the time

that the particular decision for which eligibility is relevant is

made. Thus, for example, Black’s defines the term as “[f]it

and proper to be selected or to receive a benefit.” Black’s Law

Dictionary 597 (9th ed. 2009) (emphasis added). The use of

the present tense in that definition is no mistake, because “eli-

gibility” simply does not encompass the fitness to have been

selected, or to have received a benefit. “Eligibility” might

encompass events that will occur in the future but whose sta-

tus is presently determinable. It cannot, however, encompass

the type of future condition in the Attorney General’s regula-

tion, which can only be described as a ground for termination

of voluntary departure.7

7

The Attorney General does not contend that he has the authority to ter-

minate voluntary departure, separate from his ability to create conditions

on eligibility. He does not assert—as the majority does, without citing any

support for the proposition—that his discretion over the grant of such

departure would permit him to terminate it on any ground, once it has been

granted. Rather, the Attorney General contends that “the authority for this

regulation is clearly rooted in the Attorney General’s explicit statutory

power to limit the class of aliens who are eligible for voluntary departure”

(emphasis added).

12646 GARFIAS-RODRIGUEZ v. HOLDER

Under the plain meaning of the term, the determination of

“eligibility” is made when the immigration judge grants vol-

untary departure. If the Attorney General has exercised his

discretion to limit eligibility for a “class” of which the non-

citizen is a member, the individual seeking voluntary depar-

ture will be ineligible to be awarded that relief. Otherwise, he,

like the non-citizen here, is eligible and may be granted such

relief, if he otherwise qualifies.

Although the distinction may occasionally be elusive, the

difference between a condition for “eligibility” and a condi-

tion for “termination” is not as trivial as the majority suggests.

Neither the majority nor the government contends that a vio-

lation of the other eligibility criteria for voluntary departure

(e.g., good moral character) after the immigration judge has

granted the non-citizen voluntary departure would constitute

grounds for a determination that the non-citizen is not eligi-

ble. Nor does either point to any case to that effect.8 In fact,

another regulation issued by the Attorney General suggests

just the opposite: that “eligibility” refers to a condition identi-

fiable at the time that voluntary departure is granted. The reg-

ulation permits the Attorney General to revoke voluntary

departure—that is, to declare it as having been improperly

granted in the first place—but only upon finding that the

application “should not have been granted.” 8 C.F.R.

§ 240.25(f) (emphasis added). This regulation provides no

permission to revoke voluntary departure for a newly-arising

condition which, if originally present, would have kept a non-

citizen from receiving voluntary departure. If “eligibility” had

the broad meaning ascribed to it by the majority, there would

be no need for this regulation to be so circumscribed.

8

When, if ever, an award of voluntary departure may be terminated

prior to its expiration date for wrong-doing or misrepresentation (aside

from grounds existing at the time voluntary departure was granted) is

another matter, one that is not raised by the Attorney General. See n.7,

supra.

GARFIAS-RODRIGUEZ v. HOLDER 12647

Indeed, our procedural due process jurisprudence recog-

nizes that the distinction between the conditions relevant to

eligibility and to termination is an important one, fundamental

to the very existence of vested interests in life, liberty, and

property. As the Supreme Court held in Logan v. Zimmerman

Brush, “While the legislature may elect not to confer a prop-

erty interest, it may not constitutionally authorize the depriva-

tion of such an interest, once conferred, without appropriate

procedural safeguards.” 455 U.S. 422, 432 (1982) (internal

quotations marks and alterations omitted). Permitting the

executive to eliminate the distinction between the two legal

concepts would “allow the State to destroy at will virtually

any state-created [ ] interest” by claiming that its deprivation

was simply a condition of the right having been granted in the

first place. Id.

This majority’s decision is contrary to the plain text of 8

U.S.C. § 1229c(e). There is simply nothing in that provision,

or any other statutory provision to which the majority or the

Attorney General can point, to suggest that, when Congress

permitted the Attorney General to regulate eligibility require-

ments for voluntary departure, it also intended to permit him

to terminate voluntary departure once it was granted, or to

enact a regulation to that effect. The majority errs in granting

the Attorney General that authority—and, in the process, by

eviscerating the important distinction between eligibility for

a right and the termination of that right.

C.

Perhaps in recognition of the weakness of the Attorney

General’s rationale, the majority offers its own interpretation

of the voluntary departure statute as support for the Attorney

General’s authority to promulgate the regulation. Its reading

of the statute, however, is, in my view, unreasonable, clearly

in error, and directly contrary to the manner in which the

Attorney General construes the statute. Certainly, the Attor-

ney General does not—and in all likelihood would not—urge

12648 GARFIAS-RODRIGUEZ v. HOLDER

the adoption of the majority’s rationale, and the majority errs

in sua sponte making it the law of this circuit.

The majority reads the voluntary departure statute as

requiring two different actions at two different times by two

different actors—despite the fact that this is not, and has

never been, the law; nor has it ever been the manner in which

voluntary departure has been implemented. The majority

states that the immigration judge must first enter an order

granting voluntary departure upon finding that the non-citizen

meets the statutory requirements and is “eligible” for relief.

The majority then states that there is a second and subsequent

step, which, it contends, occurs “after [voluntary departure]

has been granted by the immigration judge” (emphasis

added), at which the Attorney General “may permit” the non-

citizen to voluntarily depart. The majority contends, as a

result of this second step, that the Attorney General “may” for

any reason “permit” or deny voluntary departure after it has

been granted by the immigration judge and/or the Board of

Immigration Appeals. According to the majority, the Attorney

General may do so for any reason and at any time until the

non-citizen has actually departed the country (or even, poten-

tially, afterward). It is on the basis of this definition of “per-

mit” that the majority argues that the statute affords the

Attorney General the right to “terminate” the grant of volun-

tary departure—an authority that the Attorney General him-

self does not purport to possess, other than to the extent that

he may do so by “limit[ing] eligibility . . . for any class or

classes of aliens.” See discussion supra Part II(B).

The majority entirely misapprehends the voluntary depar-

ture scheme. The language in the voluntary departure statute

stating that the Attorney General “may permit” a non-citizen

to voluntarily depart simply affords the Attorney General—or,

in practical terms, his delegees—discretion to grant or deny

voluntary departure at the completion of the immigration pro-

ceeding to the non-citizen if he has been determined to be eli-

gible for that relief under the statute. See Bazua-Cota v.

GARFIAS-RODRIGUEZ v. HOLDER 12649

Gonzales, 446 F.3d 747, 748 n.1 (9th Cir. 2006) (noting that,

under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to

review the Attorney General’s discretionary decision regard-

ing voluntary departure). There are not two steps in this pro-

cess separate in time and determined by two different

government officials. Rather, the immigration judge, the

Attorney General’s delegee, both determines whether the non-

citizen has satisfied the statutory requirements for voluntary

departure and is therefore “eligible” for such relief and, at the

same time, under the authority delegated to him by the Attor-

ney General, exercises that official’s discretion to grant or

deny that relief. See 8 C.F.R. § 1240.26(c) (providing for

grant of voluntary departure by an immigration judge). If the

immigration judge determines that the non-citizen is eligible

and decides to exercise the discretionary authority to grant

relief, an order of voluntary departure is issued. In fact, there

can be no grant of voluntary departure until the Attorney Gen-

eral has exercised his discretion and decided to grant the non-

citizen that relief. The Board of Immigration Appeals (another

of the Attorney General’s delegees) may, on appeal, review

the grant of voluntary departure and may either affirm the

order or reverse it after determining either that the non-citizen

is not, in fact, eligible for that relief under the statute or that

the immigration judge improperly exercised his discretion in

granting the relief (an administrative review that, incidentally,

is not mentioned in the majority’s description of the voluntary

departure scheme). Often, however, the only and administra-

tively final decision regarding voluntary departure will be the

one made by the immigration judge, finding that the non-

citizen is eligible for such relief and exercising the Attorney

General’s discretion to “permit” the non-citizen to voluntarily

depart.

The majority errs in converting language that does nothing

more than confer discretion on the Attorney General to grant

voluntary departure when a non-citizen is found to be eligible

for that relief into a free-floating power to terminate voluntary

departure at any time, even after the grant of that relief has

12650 GARFIAS-RODRIGUEZ v. HOLDER

become administratively final following his exercise of his

discretion. One might imagine that such broad authority pos-

sessed by the Attorney General would find ample support in

numerous precedents in our jurisprudence. It does not; nor

does the underlying reading of the statute that the majority

advances.9 The majority points to no case recognizing the

9

The majority offers two out-of-circuit cases to buttress its reading of

the voluntary departure statute as involving two distinct steps. Neither

does so.

The Second Circuit’s decision in Muigai holds only that, after voluntary

departure has been granted and the time period for departing has expired,

the Attorney General (or his delegees) may make a discretionary and unre-

viewable decision whether to extend that period. Muigai v. INS, 682 F.3d

334, 337 (2d Cir. 1982). Muigai thus says nothing about the sequence of

decision-making in the ordinary administrative proceeding (that is, when

the time for voluntary departure has not expired, and thus provides no sup-

port at all for the majority’s reading of the statute. (Muigai is, of course,

even less relevant today, now that the Attorney General’s authority to

extend the voluntary departure period has been eliminated (a fact the

majority is acutely aware of). See Dada, 554 U.S. at 9-10.)

The Tenth Circuit’s decision in Van Dinh, admittedly, does make the

distinction that the majority urges between an order by the Immigration

Judge and a later, and discretionary, decision by the Attorney General.

However, it does so in language that we have squarely recognized as dicta,

see Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 691 (9th Cir.

2003) (“this interpretation was entirely unnecessary to the Tenth Circuit’s

holding”), in support of two propositions that we have squarely rejected:

(1) that subsection (f) of the voluntary departure statute, 8 U.S.C.

§ 1229c(f), does not strip us of jurisdiction over the discretionary aspect

of the decision to deny voluntary departure, see Esquivel-Garcia v.

Holder, 593 F.3d 1025, 1030 (9th Cir. 2010) (citing that provision for the

proposition that we “lack jurisdiction to review” the Attorney General’s

“discretionary determination” regarding voluntary departure), and (2) that

8 U.S.C. § 1252(a)(2)(B)(ii)’s jurisdiction-stripping provision extends to

decisions for which the discretionary authority is not established by stat-

ute, see Kucana, 130 S. Ct. at 839-40 (“To read § 1252(a)(2)(B)(ii) to

apply to matters where discretion is conferred on the Board by regulation,

rather than on the Attorney General by statute, would ignore [ ] congres-

sional design.”); Spencer, 345 F.3d at 691. I strongly doubt the majority

wishes to reverse these well-established holdings rejecting the conse-

quences of the Tenth Circuit’s decision.

GARFIAS-RODRIGUEZ v. HOLDER 12651

broad and sweeping authority it gives the Attorney General to

terminate voluntary departure after it has been finally granted.10

The majority reads the words in the voluntary departure

statute beyond their sensible meaning, in the hope of support-

ing its dubious account of the Attorney General’s powers that

it must in order for the voluntary departure regulation to

stand. Its reading is in error, and its decision, based upon this

erroneous reading, would aggrandize the powers of the Attor-

ney General beyond even his own desired reach, in a manner

that is as unsupported as it is unwise.

D.

Another provision in the Attorney General’s regulation

raises an important question that goes unaddressed by the

majority. A subsequent portion of 8 U.S.C. § 1240.26(i) pro-

vides that a non-citizen who seeks judicial review, and whose

voluntary departure is, as a result, automatically terminated,

“will not be deemed to have departed under an order of

removal if the alien departs the United States no later than 30

10

The majority’s analogy to asylum highlights the very distinction

between discretion and termination that it refuses to recognize. The Attor-

ney General may, in fact, terminate a grant of asylum—not because he has

discretion to grant or deny that benefit, but because Congress has specifi-

cally authorized the Attorney General to “terminate[ ]” asylum in certain

circumstances. 8 U.S.C. § 1158(c)(2). No such authorization can be found

in the voluntary departure statute.

The asylum cases cited by the majority do not support its argument; to

the contrary, they prove our point. The cases simply recognize that, when

the Attorney General (or one of his delegees) finds, at the end of an asy-

lum proceeding, that a non-citizen does not meet the eligibility criteria for

asylum, there is no need for him to decide in that proceeding whether the

non-citizen merits the favorable exercise of his discretion. Accordingly,

when we reverse the Attorney General’s determination regarding lack of

statutory eligibility, we must remand for him to exercise in the remanded

proceeding the discretion that he failed to exercise, but otherwise would

have, in the initial proceeding. These cases say nothing about the Attorney

General’s ability to terminate asylum after it has been granted.

12652 GARFIAS-RODRIGUEZ v. HOLDER

days following the filing of a petition for review,” id., in other

words, not later than 30 days after his entitlement to voluntar-

ily depart has automatically terminated.11 If such an individual

has not voluntarily departed,12 and has not departed pursuant

to an order of removal, what statutory provision governs his

departure, and what conditions govern his future rights and

disabilities?

It is far from clear that the Attorney General possesses the

authority to create this new form of departure. The Attorney

General did not cite to any such authority in its rule-making

or its briefs before this court. See generally 73 Fed. Reg.

76,927 (Dec. 18, 2008) (final rule); 72 Fed. Reg. 67,674

(Nov. 30, 2007) (proposed rule). This lack of express author-

ity is troubling in light of Congress’s statement that the statu-

tory procedures governing removal are the “sole and

exclusive” procedures by which a non-citizen may be

removed from the country. 8 U.S.C. § 1229a(a)(3).

Finally, I note that I do not read the majority opinion to

foreclose the possibility that the 30-day departure period fol-

lowing automatic termination, created as part of this new form

of departure, may be stayed. The regulation clearly intends

that we would have no authority to stay voluntary departure

11

A non-citizen who departs under this provision must also “provide[ ]

to DHS such evidence of his or her departure as the ICE Field Office

Director may require, and provide[ ] evidence DHS deems sufficient that

he or she remains outside of the United States.” Id.

12

Any grant of voluntary departure has been “terminated” automatically

upon filing of the petition for review. See Patel v. Att’y Gen., 619 F.3d

230, 234 (3d Cir. 2010) (noting lack of authority to stay voluntary depar-

ture under the new regulation because “the grant has already terminated”);

Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a

Petition for Review, 72 Fed. Reg. 67,674, 67,682 (Nov. 30, 2007) (pro-

posed rule) (“Under this rule, since the grant of voluntary departure would

be terminated automatically if the alien elects to file a petition for review,

there would no longer be any period of voluntary departure to be stayed

or tolled during the pendency of the judicial review.”).

GARFIAS-RODRIGUEZ v. HOLDER 12653

because, by virtue of the automatic termination, “there would

no longer be any period of voluntary departure to be stayed

or tolled during the pendency of the judicial review.” 72 Fed.

Reg. at 67,682. This logic would seem insufficient, however,

to constrain our authority with regard to the new, 30-day

departure period, which follows the automatic termination of

the voluntary departure period. As the majority concedes, we

retain equitable discretion “unless a statute clearly provides

otherwise.” United States v. Oakland Cannabis Buyers’

Coop., 532 U.S. 483, 496 (2001). The same principles that

caused us to find that voluntary departure could be stayed in

the first place might well support an argument that this new,

30-day departure period could also be stayed pending judicial

review. Because Garfias-Rodriguez sought only a stay of his

voluntary departure, however, and did not seek a stay of the

new, unacknowledged, and unnamed 30-day departure period

provided under this new form of departure, the question does

not appear to be properly presented to us at this time. It will

assuredly arise in the future, however.

III.

The majority fails to recognize that there is, quite simply,

no statutory authority for the Attorney General’s regulation.

The regulation conflicts with the congressional design, as

expressed in the statutory scheme creating two distinct forms

of voluntary departure, and finds no source in the statutory

provision permitting the Attorney General to limit “eligibili-

ty” for voluntary departure. Further, there remains a serious

question regarding the Attorney General’s ability to create a

new form of departure permitting non-citizens to depart, after

their voluntary departure has terminated, without being

removed. The majority thus errs in upholding this regulation

as a legitimate exercise of the Attorney General’s power.

I do not envy the immigration lawyer who must explain to

his client the unconscionable logic inherent in the Attorney

General’s regulation. An immigrant’s experience with our

12654 GARFIAS-RODRIGUEZ v. HOLDER

legal system is likely to be among his last—and most lasting

—impressions of our country. It hardly becomes a nation that

pledges its allegiance to providing “liberty and justice for all”

to forfeit the rights of non-citizens who do no more than seek

a decision from our court.

I respectfully dissent.

PAEZ, Circuit Judge, joined by REINHARDT, Circuit Judge,

dissenting:

I respectfully dissent. I agree with the en banc panel major-

ity’s conclusion in Part III(A) that the Board of Immigration

Appeals’s (“BIA”) decision in In re Briones, 24 I. & N. Dec.

355 (BIA 2007), is entitled to Chevron deference. I part com-

pany with the majority in its analysis of whether our holding

to defer to Briones should be applied retroactively. The

majority contends that, in light of the deference we owe

agency decisions under National Cable & Telecommunica-

tions Association v. Brand X Internet Services, 545 U.S. 967

(2005), “it is not clear whether we, as a judicial decision-

maker, have changed the law, or whether it is the agency that

has changed the law.”1 Maj. Op. at 12600. I do not agree. I

therefore dissent from the analysis and conclusions contained

in Parts III(B)(3) and (4) of the majority opinion.

Brand X makes it clear that an agency cannot overrule a

judicial decision, and that a court’s first-in-time interpretation

of an ambiguous statute is binding unless and until that court

issues a judicial decision changing its rule of law in deference

to an agency’s permissible, alternative interpretation. Brand

1

Judge Bybee’s qualification of this statement, namely, that “it is not

clear for purposes of determining which retroactivity analysis applies

whether we or the agency effectively brought about the change in the law,”

does not alter my view. Maj. Op. at 12600 n.7 (emphasis added).

GARFIAS-RODRIGUEZ v. HOLDER 12655

X, 545 U.S. at 983-84. It follows from this principle that, in

deferring to Briones and overruling our holding in Acosta v.

Gonzales, 439 F.3d 550 (9th Cir. 2006), we have changed the

law of this circuit. We are bound, therefore, to follow the con-

stitutional principles applicable to Article III courts, including

“the principle that litigants in similar situations should be

treated the same, a fundamental component of stare decisis

and the rule of law generally.” James B. Beam Distilling Co.

v. Georgia, 501 U.S. 529, 537 (1991). Indeed, the Supreme

Court has admonished that “we can scarcely permit ‘the sub-

stantive law [to] shift and spring’ according to ‘the particular

equities of [individual parties’] claims’ of actual reliance on

an old rule and of harm from a retroactive application of the

new rule.” Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97

(1993) (alterations in original) (quoting Beam, 501 U.S. at

543 (Souter, J., concurring)).

The majority’s adoption of the retroactivity analysis we

apply to an agency’s articulation of a new rule, see Montgom-

ery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982),

violates these fundamental principles. In light of our recent

decision in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.

2011) (en banc), I would conclude that Chevron Oil Co. v.

Huson, 404 U.S. 97 (1971) supplies the proper rule of deci-

sion. Applying the Chevron Oil test, I conclude that our hold-

ing today should apply purely prospectively.

I.

The Supreme Court explained in Brand X that Chevron def-

erence is owed to an agency’s interpretation of an ambiguous

statute that contradicts a court’s prior construction since agen-

cies, not courts, fill “gaps” in the statues they are charged

with administering. 545 U.S. at 992. Therefore, compelling

agencies to follow judicial interpretations would “ ‘lead to the

ossification of large portions of our statutory law,’ by preclud-

ing agencies from revising unwise judicial constructions of

ambiguous statutes.” Id. (quoting United States v. Mead

12656 GARFIAS-RODRIGUEZ v. HOLDER

Corp., 533 U.S. 218, 247 (2001) (Scalia, J., dissenting)). In

response to the dissent’s concern that the majority’s rule

would allow agencies to effectively overrule judicial deci-

sions, the Court cautioned that, where deference to an agen-

cy’s reasonable interpretation is not required,

the court’s prior ruling remains binding law . . . .

The precedent has not been “reversed” by the

agency, any more than a federal court’s interpreta-

tion of a State’s law can be said to have been “re-

versed” by a state court that adopts a conflicting (yet

authoritative) interpretation of state law.

Id. at 983-84 (emphasis added).

As the foregoing passage reveals, Brand X did not alter the

fundamental balance of legislative and judicial power. It cre-

ated nothing more than a new scenario wherein a court may,

or sometimes must, change its prior rule of decision. Whether

a court adopts a new rule because of revised views about the

underlying law, because of intervening statutory changes, or

because of its duty to decide in accord with Supreme Court

precedent, its decision remains a judicial one. The same is

true when a court overrules past precedent in deference to an

agency.

II.

It is axiomatic that Article III vests judicial power in the

federal courts, not in agencies, and that our decisions are

therefore constrained by its dictates. The Supreme Court’s

decisions in Harper and Beam elucidate the contours of this

principle. In Beam, a Georgia distilling company brought a

Commerce Clause challenge to an excise tax that distin-

guished between imported and local alcoholic products under

the Commerce Clause. See 501 U.S. at 532. The Supreme

Court had previously sustained a Commerce Clause challenge

to a substantially similar Hawaii statute in Bacchus Imports,

GARFIAS-RODRIGUEZ v. HOLDER 12657

Ltd. v. Dias, 468 U.S. 263 (1984). Id. The Supreme Court of

Georgia agreed with the distillery that Bacchus established

that the Georgia tax violated the Commerce Clause, but

refused to apply Bacchus retroactively to afford the distillery

relief. Id. at 533. The Supreme Court granted certiorari to

consider the question of whether a rule of law, once

announced and applied to the parties to the controversy, must

be given full retroactive effect by all courts adjudicating fed-

eral law. Id. at 534.

Although the decision did not produce a unified opinion for

the Court, a majority of Justices agreed that once a case has

announced a rule of federal law and applied “that rule with

respect to the litigants” before the court, no court may “refuse

to apply [that] rule . . . retroactively after the case announcing

the rule has already done so.” Id. at 540. In reaching this con-

clusion, the Court eschewed such “selective prospectivity”

because it results in unequal treatment of similarly situated lit-

igants, in violation of fundamental principles of judicial adju-

dication. Id. at 537-38 (“[S]elective prospectivity . . . breaches

the principle that litigants in similar situations should be

treated the same . . . . ‘We depart from this basic judicial tra-

dition when we simply pick and choose from among similarly

situated defendants those who alone will receive the benefit

of a ‘new’ rule of constitutional law.’ ”) (quoting Desist v.

United States, 394 U.S. 244, 258-259 (1969) (Harlan, J., dis-

senting)) (additional citation omitted); see also id. at 540 (not-

ing that the “equality principle, that similarly situated litigants

should be treated the same” in the criminal context “carries

comparable force in the civil context”).2 For these reasons, the

Court determined that “[t]he applicability of rules of law is

not to be switched on and off according to individual hard-

ship.” Id. Courts may, however, conduct a “generalized enqui-

ry” into “the equitable and reliance interests of parties absent

but similarly situated.” Id.

2

The Court also criticized the rule of selective prospectivity because it

“would only serve to encourage the filing of replicative suits[.]” Id. at 543.

12658 GARFIAS-RODRIGUEZ v. HOLDER

In Harper, faced with a similar retroactivity question,3 the

Court “adopt[ed] a rule that fairly reflect[ed] the position of

a majority of Justices in Beam: When this Court applies a rule

of federal law to the parties before it, that rule is the control-

ling interpretation of federal law and must be given full retro-

active effect in all cases still open on direct review and as to

all events, regardless of whether such events predate or post-

date our announcement of the rule.” 509 U.S. at 96. The court

rested its holding on a line of precedent affirming, in the crim-

inal context,

two “basic norms of constitutional adjudication.”

First . . . that “the nature of judicial review” strips us

of the quintessentially “legislat[ive]’ prerogative to

make rules of law retroactive or prospective as we

see fit. Second . . . that ‘selective application of new

rules violates the principle of treating similarly situ-

ated [parties] the same.”

Id. at 95 (quoting Griffith v. Kentucky, 479 U.S. 314, 322-23

(1987)). In affirming Beam’s holding and extending this prin-

ciple to the civil context, the court commented that its “ap-

proach to retroactivity heeds the admonition that ‘[t]he Court

has no more constitutional authority in civil cases than in

criminal cases . . . to treat similarly situated litigants different-

ly.” Id. at 97 (quoting Am. Trucking Ass’n, Inc. v. Smith, 496

U.S. 167, 214 (1990) (Stevens, J., dissenting)).

The Court’s holding limited Chevron Oil to the extent that

state and lower federal courts had relied upon it to curtail the

retroactive application of rules already applied to the parties

to the case announcing the rule, in consideration of the partic-

ular equities of each case:

3

In Harper, the Supreme Court of Virginia refused to apply the

Supreme Court’s prior decision in Davis v. Michigan Department of Trea-

sury, 489 U.S. 803 (1989), to the parties before it, denying relief to retired

federal employees seeking refunds for state income taxes. 509 U.S. at 90-

92. The Supreme Court granted certiorari and reversed.

GARFIAS-RODRIGUEZ v. HOLDER 12659

[O]ur decision today makes it clear that “the Chev-

ron Oil test cannot determine the choice of law by

relying on the equities of the particular case” and

that the federal law applicable to a particular case

does not turn on “whether [litigants] actually relied

on [an] old rule [or] how they would suffer from

retroactive application” of a new one.

Id. at 95 n.8 (quoting Beam, 501 U.S. at 543 (Souter, J., con-

curring)).

III.

This precedent compels my conclusion that, as an Article

III court, we should be guided by the fundamental principles

of judicial adjudication. We may not weigh the retroactive

effect of the rule we announce today in light of the equities

of Mr. Garfias’s particular circumstances, nor may we con-

sider his individual reliance on Acosta. To do so would be

contrary to the nature of judicial review, which prohibits our

selective application of rules that we adopt, under Brand X

deference or otherwise, to the parties before us based on our

sympathies to particular litigants.4 To do so would also no

doubt threaten to encourage “replicative suits,” since parties

who have yet to file may try their hand, in the hope that we

would look more favorably upon their circumstances. Beam,

501 U.S. at 543. Where equitable considerations play a role

in our retroactivity analysis, therefore, we must conduct only

a “generalized enquiry” into “the equitable and reliance inter-

ests of parties absent but similarly situated.” Id.

4

I am mindful that the Court in Beam and Harper addressed the weigh-

ing of equitable and reliance interests in a particular case in a different

context, one in which a new rule of law had already been announced at

the time its application to the litigants before the court was questioned.

Nonetheless, Harper and Beam’s recitation of the fundamental principles

of judicial review cannot be lightly cast aside, and should, I believe, guide

our choice of a retroactivity principle appropriate to the judicial decision-

making we must engage in under Brand X deference.

12660 GARFIAS-RODRIGUEZ v. HOLDER

The rule of Montgomery Ward inherently involves—indeed

requires—an individualized inquiry into the equitable and

reliance interests of the litigants. See 691 F.2d at 1333 (stating

that the third factor considers “the extent to which the party

against whom the new rule is applied relied on the former

rule” while the fourth factor considers “the degree of the bur-

den which a retroactive order imposes on a party”). For this

reason, it creates the anomalous result that similarly situated

litigants will face different resolutions of their claims where

some relied on the old rule of law to their detriment while oth-

ers did not. Indeed, even the majority acknowledges the odd

result that the Montgomery Ward rule creates. See Maj. Op.

at 12616 n.13 (“We express no opinion whether other appli-

cants may avoid the retroactive effect of Briones.”).5

But this is not the only reason that Montgomery Ward’s

retroactivity analysis appears inappropriate to the Brand X

scenario. Montgomery Ward struck a delicate balance

between an agency’s pre

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