In the long-awaited follow up decision to its 2012 en banc decision in Garfias-Rodriguz v. Holder, the Ninth Circuit found that an individual who had triggered the so-called "permanent bar" of inadmissibility under section 212(a)(9)(C)(i)(I) of the INA (re-entering or attempting to re-enter the United States without admission after accruing one year of unlawful presence) could still seek adjustment of status under section 245(i) of the INA if they had applied for for adjustment after the Ninth Circuit ruled on February 23, 2006 in Acosta v. Gonzales that adjustment was available to such individuals, and before the Board of Immigration Appeals ruled on November 29, 2007 in Matter of Briones that such individuals were ineligible for adjustment. Applying the retroactivity analysis outlined in Montgomery-Ward & Co v. Federal Trade Commission , the Ninth Circuit determined that the petitioner, who had applied for adjustment of status under section 245(i) in July 2006 by an Immigration Judge, reasonably relied on the 2006 decision in Acosta when applying adjustment and paying the penalty fee under section 245(i) of the INA and by giving up his ability to take voluntary departure and spend the mandatory 10 year period outside the United States to try to seek waiver of the inadmissibility bar contained in section 212(a)(9)(C)(i)(I) of the INA.
The Ninth Circuit rejected the Government's argument that the petitioner could not have reasonably relied on Acosta because the Board of Immigration Appeals had already issued Matter of Torres-Garcia, finding that individuals who were inadmissible under section 212(a)(9)(C)(i)(II) of the INA (re-entering or attempting to re-enter the United States without admission after being ordered removed) were not eligible for adjustment of status under section 245(i) of the INA.
The full text of Acosta-Olivarria v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/26/10-70902.pdf