# Francisco Garfias-Rodriguez v. Eric Holder, Jr.

> Court of Appeals for the Ninth Circuit · October 19, 2012 · 702 F.3d 504

URL: https://www.frixlaw.com/law-library/cases/9501541

## Case

- **Full name:** Francisco Javier GARFIAS-RODRIGUEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** October 19, 2012
- **Citations:** 702 F.3d 504; 2012 U.S. App. LEXIS 21871; 2012 WL 5077137
- **Precedential status:** Published
- **Opinion:** Concurring in part by Graber
- **Judges:** Kozinski, Reinhardt, Graber, Fisher, Gould, Paez, Rawlinson, Clifton, Bybee, Ikuta, Murguia
- **Cited by:** 127 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Aurelio Duran Gonzalez v. U.S. Department of Homeland Se, 712 F.3d 1271 (2013).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9501541

## How later opinions describe it (automated extraction)

- holding that “when we overturn our own precedent following a contrary statutory interpretation by an agency authorized under Brand X, we analyze whether the agency’s statutory interpretation (to which we defer) applies retroactively under the test we adopted in Montgomery Ward…
- explaining that because the NLRB is a unique agency that relies on the common-law method to adjudicate cases, immigration petitioners are not similarly situated to litigants in NLRB proceedings, and cases of “first impression” are captured in the second and third Montgomery Wa…
- concluding that, pursuant to Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), our prior construction of immigration provisions did not survive a contrary reading by the BIA
- concluding that, pursuant to Brand X, our prior construction of two provisions of the Immigration and Nationality Act did not survive a contrary reading by the Board of Immigration Appeals
- noting that tension between two provisions “creates a statutory ambiguity that cannot be resolved conclusively by resort to the text,” and deferring to the Board regarding Matter of Briones, 24 I&N Dec. 355 (BIA 2007) and Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)

## Opinion text

*534 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 , 92 S.Ct. 349 , 30 L.Ed.2d 296 (1971), or Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir.1982), provides the better framework for deciding the retroactivity issue when both an agency and a court (deferring to the agency’s interpretation) change their construction of an ambiguous statute. Even if the Chevron Oil test applied here, however, I agree with Judge Gould’s analysis of it. That is, under either framework, retroactive application of the new legal rule is appropriate.
I also join Part II of Judge Reinhardt’s dissent, which concludes that 8 C.F.R. § 1240.26 (i) exceeds the Attorney General’s statutory authority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9501541. Public record. Not legal advice.