Tenth Circuit Addresses Retroactivity of Matter of Briones

In 2005, the Tenth Circuit issued Padilla-Caldera v. Gonzales (Padilla-Caldera I), in which it determined that a non-citizen who was inadmissible 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 at least one year of unlawful presence) could seek adjustment of status under section 245(i) of the INA.  In 2007, the Board of Immigration Appeals disagreed with this conclusion in Matter of Briones, and in 2011, the Tenth Circuit deferred to the Briones decision in Padilla-Caldera II.  In the instant decision, the Tenth Circuit addressed the situation of an applicant who filed for adjustment of status after the decision in Padilla-Caldera I and before the decision in Briones.  The court found that the applicant has reasonably relied on the decision in Padilla-Caldera I, as such Briones did not apply retroactively to him. 

The full text of De Niz Robles v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9568.pdf

Tenth Circuit Addresses the "Permanent Bar" for Minors

In an unpublished decision, the Tenth Circuit addressed the application of section 212(a)(9)(C) of the Immigration and Nationality (INA) - which defines the immigration consequences of re-entering the United States without admission having previously accrued at least one year of unlawful presence - to minors.  The court determined that even though the definition of unlawful presence in section 212(a)(9)(B) of the INA exempts minors from accruing unlawful presence, this exception does not apply to the inadmissibility provision in section 212(a)(9)(C) of the iNA.

The full text of Casillas-Casillas v. Lynch can be found here: 

https://www.ca10.uscourts.gov/opinions/14/14-9611.pdf

Ninth Circuit Finds that Adjustment Applicant Reasonably Relied on Prior Circuit Case Law

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