FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL MORALES-IZQUIERDO,
Petitioner-Appellant,
v. No. 08-35965
DEPARTMENT OF HOMELAND D.C. No.
2:03-cv-00089-TSZ
SECURITY; WILLIAM JOHNSTON,
District Director; ERIC H. HOLDER OPINION
JR., Attorney General,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted
December 7, 2009—Seattle, Washington
Filed April 2, 2010
Before: Robert R. Beezer, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Gould
5111
5114 MORALES-IZQUIERDO v. DHS
COUNSEL
Robert Pauw, Gibbs Houston Pauw, Seattle, Washington, for
the petitioner-appellant.
Papu Sandhu, Senior Litigation Counsel, Office of Immigra-
tion Litigation, Washington, D.C., for the respondents-
appellees.
MORALES-IZQUIERDO v. DHS 5115
OPINION
GOULD, Circuit Judge:
Petitioner-Appellant Raul Morales (“Morales”) filed an
application to adjust his immigration status to that of a lawful
permanent resident. His application was denied because his
prior removal from the United States made him “inadmissi-
ble.” Morales filed a petition for a writ of habeas corpus chal-
lenging the rejection by an Immigration and Naturalization
Service (“INS”) official of his adjustment-of-status applica-
tion, denial of which by the district court prompted this
appeal.
Morales contends that under our circuit’s interpretation of
the relevant statute at the time Morales filed his application,
he was eligible for a discretionary waiver of inadmissibility.
See Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).
However, we have subsequently overruled that waiver prece-
dent because of an intervening decision by the Board of
Immigration Appeals (“BIA”). See Gonzales v. Dep’t of
Homeland Sec., 508 F.3d 1227 (9th Cir. 2007). Such defer-
ence is required by the Supreme Court’s decision in National
Cable & Telecommunications Ass’n v. Brand X Internet Ser-
vices, 545 U.S. 967 (2005). Morever, after Morales filed his
habeas corpus petition, the jurisdiction of federal district
courts to hear habeas corpus challenges to administrative
decisions relating to removal orders was curtailed by section
106(a) of the REAL ID Act. See 8 U.S.C. § 1252(a)(5). We
consider whether Morales can challenge the denial of his
adjustment-of-status application in a habeas corpus proceed-
ing after enactment of the REAL ID Act, and whether our
decision in Gonzales, overruling our prior interpretation of a
statute as required by Brand X, makes Morales ineligible for
waiver of inadmissibility.
5116 MORALES-IZQUIERDO v. DHS
I
Raul Morales, a Mexican citizen, entered the United States
without inspection in March 1990. Morales was later arrested
by the INS1 and placed in removal proceedings.2 He did not
attend his removal hearing and was ordered removed in
absentia on September 14, 1994. Morales was removed to
Mexico in January of 1998.
Morales reentered the United States without inspection on
January 8, 2001. At some time between his 1998 removal and
his 2001 reentry, Morales married a United States citizen.
Two months after his illegal reentry into the United States,
Morales and his U.S.-citizen wife appeared at an INS office
in Spokane, Washington, seeking to adjust Morales’s immi-
gration status to that of a lawful permanent resident (“LPR”).
Under section 245(i) of the Immigration and Naturalization
Act (“INA”), 8 U.S.C. § 1255(i), an alien who enters the
United States without inspection, under limited circum-
stances, can seek to adjust his or her immigration status to that
of an LPR by filing an Application for Adjustment of Status
(“Form I-485”). See Chan v. Reno, 113 F.3d 1068, 1071 (9th
Cir. 1997). To do so, the alien must be “admissible” into the
United States. 8 U.S.C. § 1255(i)(2)(A). Morales is not admis-
sible because he unlawfully reentered the United States after
having been previously removed. See 8 U.S.C.
1
The INS ceased to exist and transferred its functions to the Department
of Homeland Security (“DHS”) on March 1, 2003. See Homeland Security
Act of 2002, 6 U.S.C. §§ 101, 111, 251, 252.
2
Before 1996, the relevant proceedings were called “deportation” pro-
ceedings. The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546
(1996), altered the vocabulary of immigration law, replacing references to
“deportation” with the term “removal.” Although the two terms are not
synonyms, the distinctions are immaterial for our present purposes. To
avoid confusion, we use the term “removal” even when referring to pre-
1996 deportation proceedings.
MORALES-IZQUIERDO v. DHS 5117
§ 1182(a)(9)(C)(i)(II). Under current law, Morales will
remain permanently inadmissible unless, while residing out-
side the United States, Morales applies for and receives
advance permission from the Secretary of Homeland Security
(“Secretary”) to reapply for admission. But Morales is not eli-
gible for such advance permission until ten years have elapsed
since his last departure from the United States. See Id.
§ 1182(a)(9)(C)(ii). This is commonly known as the “ten-year
bar” to readmission.
When Morales’s application for adjustment of status was
pending, however, Morales may have been eligible for a dis-
cretionary waiver of inadmissibility, called a “Form I-212”
waiver. See 8 C.F.R. § 212.2(e). In Perez-Gonzalez, we held
that a Form I-212 waiver—if granted in conjunction with an
alien’s Form I-485 application for adjustment of status—
could waive the ten-year bar to readmission and cure a previ-
ously removed alien’s inadmissability. 379 F.3d at 795-96.
But Morales did not file a Form I-212 waiver application at
the time he filed his application for adjustment of status in 2001.3
On January 15, 2003, Morales appeared at the INS office
in Spokane to check on his adjustment-of-status application
and was taken into custody. The INS then denied Morales’s
application for adjustment of status and issued a Notice of
Intent/Decision to Reinstate Prior Order (“Reinstatement
Order”) under 8 U.S.C. § 1231(a)(5) on the basis of Morales’s
1998 removal. The reinstatement of a prior removal order bars
an alien from applying for “any relief” from removal for
which he or she might previously have been eligible. See INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5). Once Morales’s 1998
removal order was reinstated, he was no longer eligible for
“relief” in the form of adjustment of status—even if he could
3
In 2004, after his 1998 removal order had been reinstated and while the
present judicial proceedings were pending, Morales reapplied for LPR sta-
tus. At that time he filed a Form I-212 waiver application.
5118 MORALES-IZQUIERDO v. DHS
obtain a Form I-212 waiver. See Padilla v. Ashcroft, 334 F.3d
921, 925-26 (9th Cir. 2003).
Morales filed two petitions seeking review of these INS
actions. The first, a petition for a writ of habeas corpus pursu-
ant to 28 U.S.C. § 2241, was filed on January 17, 2003, in the
United States District Court for the Western District of Wash-
ington, challenging, among other things, the denial of Mora-
les’s application for adjustment of status. Morales-Izquierdo
v. INS, No. 2:03-cv-89. The second, a petition for review of
the Reinstatement Order, was filed directly in this court on
February 13, 2003. Morales-Izquierdo v. Gonzales, No. 03-
70674. The district court ordered the habeas corpus proceed-
ings held in abeyance pending the outcome of the petition for
review before this court.4
In November 2004, a three-judge panel of our court granted
Morales’s petition for review of the Reinstatement Order.
Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir. 2004).
A majority of nonrecused active judges subsequently voted to
rehear the case en banc. Morales-Izquierdo v. Gonzales, 423
F.3d 1118 (9th Cir. 2005).
While en banc proceedings were pending, the REAL ID
Act, Pub. L. No. 109-13, Div. B., 119 Stat. 231 (May 11,
2005), went into effect. The REAL ID Act eliminated district
court habeas corpus jurisdiction over orders of removal, vest-
ing jurisdiction exclusively in the courts of appeals. Puri v.
Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006). In December
2005, DHS moved the district court to transfer the claims
raised in Morales’s habeas proceedings to our court pursuant
to the REAL ID Act. See Pub L. No. 109-13, § 106(c), 119
Stat. 311 (2005) (codified as a note following 8 U.S.C.
§ 1252). The district court denied that motion and DHS’s
motion for reconsideration, concluding that it retained habeas
4
The district court also dismissed several of Morales’s claims for lack
of jurisdiction. Morales does not appeal the dismissal of those claims.
MORALES-IZQUIERDO v. DHS 5119
corpus jurisdiction for claims not directly challenging orders
of removal. DHS then petitioned our court for a writ of man-
damus on the same grounds. The en banc panel denied DHS’s
mandamus petition without reaching its merits, concluding
that it did not meet the “extraordinarily high standard for
obtaining a writ of mandamus.” United States v. U.S.D.C.
W.D. Wash., 220 Fed. App’x 582 (9th Cir. 2007). On the
same day, the en banc panel issued an opinion rejecting Mora-
les’s Reinstatement Order challenge. Morales-Izquierdo v.
Gonzales, 477 F.3d 691 (9th Cir. 2007) (en banc), amended
by 486 F.3d 484 (9th Cir. 2007) [hereinafter Morales-
Izquierdo I].
Morales and DHS filed cross-motions for summary judg-
ment before the district court on September 28, 2007. In his
motion for summary judgment, Morales argued that the INS
should have given him the opportunity to apply for a Form I-
212 waiver before the denial of his adjustment-of-status appli-
cation and the reinstatement of his 1998 removal order, and
that, accordingly, Morales should be treated as having timely
filed a Form I-212. The district court granted summary judg-
ment for DHS, concluding that the INS had no duty to inform
Morales of the availability of a Form I-212 waiver, and that,
in any event, the reinstatement of Morales’s 1998 removal
order barred him from seeking to adjust his status.
While the district court was considering these motions, the
law of our circuit relating to Form I-212 waivers changed. In
Gonzales v. DHS, we overruled our prior precedent and held
that a Form I-212 waiver could not be used to waive the statu-
tory ten-year bar to readmission for previously removed
aliens. 508 F.3d at 1242. We did so in deference to an inter-
vening BIA decision interpreting ambiguous provisions of the
INA, In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006),
as we were required to do by the Supreme Court’s decision
in Brand X. See Gonzales, 508 F.3d at 1235-42.
Morales timely appealed the district court’s denial of his
habeas corpus petition, and we have jurisdiction pursuant to
5120 MORALES-IZQUIERDO v. DHS
28 U.S.C. § 1291. On appeal, Morales argues that after the
passage of the REAL ID Act, district courts retain habeas cor-
pus jurisdiction to entertain challenges to the denial of appli-
cations for adjustment of status. On the merits, Morales
argues that he was eligible for a Form I-212 waiver of inad-
missibility at the time the INS denied his adjustment-of-status
application and issued the Reinstatement Order, and that the
INS violated its own regulations, due process, and our prece-
dents by denying Morales’s adjustment-of-status application
without first giving him the opportunity to apply for a Form
I-212 waiver. Morales seeks nunc pro tunc relief that would
require DHS to consider his application for a Form I-212
waiver and adjustment of status under the standards used by
the INS to review such applications in 2003. He argues that
our intervening decision in Gonzales—which would make
him ineligible for waiver of the ten-year bar—would not
apply “retroactively” to a nunc pro tunc Form I-212 waiver
application. Finally, Morales argues that the denial of his
adjustment-of-status application violated the substantive due
process rights possessed by Morales and his family members
to live together as a family.
II
We first decide whether or not the district court retained
subject-matter jurisdiction, after the enactment of the REAL
ID Act, to hear Morales’s challenge to the denial of his
adjustment-of-status application in a habeas corpus proceed-
ing pursuant to 28 U.S.C. § 2241.5 We review de novo
whether a district court has subject-matter jurisdiction over a
§ 2241 action. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th
Cir. 2003).
5
When Morales filed his habeas petition in 2003, the district court had
habeas corpus jurisdiction to review purely legal challenges relating to the
denial of an adjustment-of-status application. See Rojas-Garcia v. Ash-
croft, 339 F.3d 814 817, 819 (9th Cir. 2003) (considering on the merits an
appeal of the denial of a habeas corpus petition challenging an adjustment-
of-status decision).
MORALES-IZQUIERDO v. DHS 5121
[1] Section 106(a)(iii) of the REAL ID Act, codified at 8
U.S.C. § 1252(a)(5), states:
Notwithstanding any other provision of law (statu-
tory or nonstatutory), including section 2241 of Title
28, or any other habeas corpus provision . . . a peti-
tion for review filed with an appropriate court of
appeals in accordance with this section shall be the
sole and exclusive means for judicial review of an
order of removal entered or issued under any provi-
sion of this chapter . . . .
The Reinstatement Order to which Morales is subject quali-
fies as an order of removal that can only be challenged in a
petition for review filed directly with our court. See, e.g.,
Gallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1127 (9th Cir.
2001) (citing Castro-Cortez v. INS, 239 F.3d 1037, 1043-44
(9th Cir. 2001)).
[2] Moreover, because the Reinstatement Order is an
“order of removal,” it is subject to the INA’s zipper clause.
Under the zipper clause, any “questions of law and fact” aris-
ing from an order of removal must be raised in a petition for
review of that order.6 8 U.S.C. § 1252(b)(9); Singh v. Gon-
zales, 499 F.3d 969, 978 (9th Cir. 2007). It is known as the
“zipper” clause because it “consolidates or ‘zips’ judicial
review of immigration proceedings into one action in the
court of appeals.” Singh, 499 F.3d at 976 (internal quotation
marks omitted).
DHS urges us to interpret the denial of Morales’s
adjustment-of-status application as part of an “order of
6
In the REAL ID Act, Congress amended the zipper clause explicitly to
strip district courts of habeas corpus jurisdiction to hear challenges to final
orders of removal, rendering courts of appeals with exclusive jurisdiction
to hear challenges to removal orders. See REAL ID Act § 106(a)(2) (codi-
fied at 8 U.S.C. § 1252(b)(9)).
5122 MORALES-IZQUIERDO v. DHS
removal.” That would make it subject to the INA’s zipper
clause, stripping the district court of habeas corpus jurisdic-
tion and requiring Morales to challenge the denial of his
adjustment-of-status application in a petition for review in our
court.
At the outset, the literal meaning of the term “order of
removal” appears to be at odds with the interpretation DHS
urges us to adopt. A final order of removal is “the order of the
special inquiry officer, or other such administrative officer to
whom the Attorney General has delegated the responsibility
for determining whether an alien is [removable], concluding
that the alien is [removable] or ordering [removal].” Singh,
499 F.3d at 979 (internal quotation marks omitted). But an
alien applying for adjustment of status is not necessarily
removable, even if his or her adjustment-of-status application
is denied. See 8 C.F.R. § 245.1 (“Any alien who is physically
present in the United States . . . may apply for adjustment of
status to that of a lawful permanent resident of the United
States . . . .”). For aliens who lawfully reside within the
United States, the denial of an adjustment-of-status applica-
tion might very well be incompatible with the concept of an
“order of removal,” and under those circumstances we might
be inclined to adopt Morales’s view of the REAL ID Act’s
jurisdictional provisions. Cf., e.g., Singh, 499 F.3d at 978
(holding ineffective assistance of counsel claim should be
raised in habeas corpus petition because “[p]ost-REAL ID Act
cases considering the applicability of § 1252 have also distin-
guished between challenges to orders of removal and chal-
lenges that arise independently”).
[3] Under the circumstances presented to us here, however,
we conclude that Morales’s challenge to the adjudication of
his adjustment-of-status application is appropriately charac-
terized as a challenge to an “order of removal.” Morales has
been ordered removed from the United States, and Morales’s
adjustment-of-status challenge is inextricably linked to the
reinstatement of his 1998 removal order. Until the Reinstate-
MORALES-IZQUIERDO v. DHS 5123
ment Order is vacated, Morales is not eligible for “any relief,”
including adjustment of status. See 8 U.S.C. § 1231(a)(5).
Conversely, if Morales were granted the relief he seeks in the
present habeas corpus petition—a nunc pro tunc Form I-212
waiver of inadmissibility and the adjustment of status to that
of an LPR—the Reinstatement Order would be rendered
invalid. Morales cannot challenge only the denial of his
adjustment-of-status application without also impugning the
Reinstatement Order, and therefore his present challenge is
properly construed as a challenge to an “order of removal.”
See INS v. Chadha, 462 U.S. 919, 938 (1983) (“[T]he term
‘final orders [of deportation]’ . . . includes all matters on
which the validity of the final order is contingent, rather than
only those determinations actually made at the hearing.”
(internal quotation marks omitted)).
The Supreme Court’s longstanding decision in Foti v. INS,
375 U.S. 217 (1963), is instructive. In Foti, the Supreme
Court, interpreting the term “final orders of deportation”—the
predecessor of the term “order of removal”—held that the
INS’s denial of discretionary relief ancillary to an order of
deportation was part of the “order of deportation” and was
therefore subject to direct review by courts of appeals. Id. at
220-21. In so doing, the Court rejected a narrower interpreta-
tion that would refer only to adjudications of deportability,
holding that such an interpretation would be “inconsistent
with [the] manifest purpose of Congress” to consolidate
immigration appeals in one proceeding and “prevent[ ] suc-
cessive dilatory appeals to various federal courts.” Id. at 226.
“Review of the denial of discretionary relief is ancillary to the
deportability issue, and both determinations should therefore
be made by the same court at the same time.” Id. at 227.
Similarly, to permit Morales’s challenge to the denial of his
adjustment-of-status application to proceed as a habeas corpus
petition would be contrary to a central purpose of the REAL
ID Act. Through the REAL ID Act, Congress sought to “limit
all aliens to one bite of the apple with regard to challenging
5124 MORALES-IZQUIERDO v. DHS
an order of removal, in an effort to streamline what the Con-
gress saw as uncertain and piecemeal review of orders of
removal, divided between the district courts (habeas corpus)
and the courts of appeals (petitions for review).” Iasu v.
Smith, 511 F.3d 881, 887 (9th Cir. 2007). Yet “piecemeal
review” is precisely what has happened in this case: Mora-
les’s petition for review of the Reinstatement Order proceeded
before our court while his habeas corpus petition was held in
abeyance before the district court, notwithstanding DHS’s
repeated motions to transfer and consolidate the proceedings.
Because the district court denied Morales’s habeas corpus
petition, we are confronted with a second appeal addressing
the same facts and circumstances raised in Morales’s earlier
petition for review. Although Morales’s legal claims in the
two proceedings differ, we have no doubt that the convoluted
procedural history of this case would have been streamlined
and accelerated by consolidated consideration before a single
tribunal.
Other changes to the INA made by the REAL ID Act fur-
ther persuade us that Congress intended that Morales’s chal-
lenge to the denial of his adjustment-of-status application be
raised in conjunction with his challenge to the Reinstatement
Order in a petition for review. In 1996, the IIRIRA added a
provision to the INA stripping all courts of jurisdiction to
review decisions “that involve the exercise of discretion”
under the INA’s adjustment-of-status provision. Montero-
Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002);
see also 8 U.S.C. § 1252(a)(2)(B)(i) (2000). The REAL ID
Act amended this provision to clarify that it also precludes
actions brought under habeas corpus statutes, including
§ 2241. See § 106(a)(iii), 119 Stat. at 302 (codified at 8
U.S.C. § 1252(a)(2)(B)(i)). At the same time, the REAL ID
Act added a provision stating that “[n]othing in
[§ 1252(a)(2)(B)] . . . shall be construed as precluding review
of constitutional claims or questions of law raised upon a peti-
tion for review filed with an appropriate court of appeals.”
§ 106(a)(iii), 119 Stat. at 302 (codified at 8 U.S.C.
MORALES-IZQUIERDO v. DHS 5125
§ 1252(a)(2)(D)). Although these provisions do not necessar-
ily preclude Morales from seeking habeas corpus relief, see
Montero-Martinez, 277 F.3d at 1144, the congressional pref-
erence for judicial review of adjustment-of-status challenges
in petitions for review of orders of removal is unmistakable.
Morales argues that habeas corpus jurisdiction is necessary
because his application for adjustment of status and the rein-
statement of his prior removal order were adjudicated before
different INS officers, and therefore the administrative record
of his adjustment-of-status application would not be before us
on a petition for review of the Reinstatement Order. We con-
clude that this argument is unpersuasive for several reasons.
First, we are empowered to take judicial notice of the admin-
istrative record of an adjustment-of-status adjudication when
necessary to decide the issues before us. Cf., e.g., Perez-
Gonzalez, 379 F.3d at 787 n.4 (taking judicial notice of the
administrative record of an adjustment-of-status application).
Second, judicial review of the denial of adjustment of status
is limited by statute to questions of law; courts lack jurisdic-
tion to review factual determinations underlying adjustment-
of-status decisions. 8 U.S.C. § 1252(a)(2)(B)(i); see Ortega-
Cervantes v. Gonzales, 501 F.3d 1111, 1113 (9th Cir. 2007);
Bazua-Cota v. Gonzales, 466 F.3d 747, 748-49 (9th Cir.
2006) (per curiam). Although we do not doubt that the admin-
istrative record may on occasion prove vital to reviewing a
denial of adjustment of status, many such questions of law are
decided on the basis of pure law and undisputed facts, without
need to resort to the administrative record. We are persuaded
that appellate courts have, without difficulty, considered
claims related to a denial of adjustment of status in a petition
for review of the reinstatement of a prior removal order. See,
e.g., Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 804-10 (7th
Cir. 2005); Perez-Gonzalez, 379 F.3d at 790-96; Berrum-
Garcia v. Comfort, 390 F.3d 1158, 1162-63 (10th Cir. 2004);
Lattab v. Ashcroft, 384 F.3d 8, 21 (1st Cir. 2004).
5126 MORALES-IZQUIERDO v. DHS
Third, we do not believe that DHS’s adoption of a bifur-
cated system to adjudicate adjustment-of-status applications
and the reinstatement of prior removal orders is determinative
here of what Congress meant when it enacted section 106(a)
of the REAL ID Act. The existence of a bifurcated adminis-
trative procedure may be relevant to our interpretation of the
statute. See Cheng Fan Kwok v. INS, 392 U.S. 206, 212-18
(1968) (holding that the discretionary denial of a stay of
deportation is not a “final order of deportation” when it is
made outside of deportation proceedings by a different INS
officer than the special inquiry officer who presided over the
deportation proceeding); Foti, 375 U.S. at 223 (interpreting a
predecessor to section 106(a) in light of the “familiar adminis-
trative practice” effective at the time the statute was enacted).7
But this procedural background is not necessarily dispositive.
See Chadha, 462 U.S. at 938 (holding that a congressional
one-House veto to suspend deportation qualifies as a chal-
lenge to a “final order of deportation” despite the fact that it
“takes place outside the administrative [deportation] proceed-
ings”). “Congress intended reinstatement to be a different and
far more summary procedure than removal.” Morales-
Izquierdo I, 486 F.3d at 491. Adopting Morales’s theory
would turn the concept of summary reinstatement on its head.
Aliens subject to removal for the first time would be limited
by the “zipper clause” to challenging denials of adjustment of
status in petitions for review in our court. See 8 U.S.C.
§ 1252(b)(9). But aliens subject to reinstatement would be
entitled to file dilatory habeas corpus challenges in district
court alleging the improper denial of discretionary relief, pre-
cisely because DHS—following congressional direction—
adopts summary procedures for reinstating prior removal
orders. We do not think Congress intended such a result.
7
It is notable for present purposes that Congress has expressly broad-
ened the jurisdiction of the court of appeals to hear a wider array of ques-
tions “relating to the removal process” since the days of Cheng Fan Kwok.
Flores-Miramontes v. INS, 212 F.3d 1133, 1141 (9th Cir. 2000).
MORALES-IZQUIERDO v. DHS 5127
Morales also argues that habeas corpus jurisdiction is nec-
essary to develop the factual record, which, because of DHS’s
summary reinstatement procedures, is not developed in an
administrative fact-finding proceeding. We conclude that this
argument is no more persuasive than his last. Courts are not
permitted to review the factual determinations underlying the
denial of an adjustment of status, and we believe it will be the
exceptional case that will require further fact-finding to
decide properly the questions of law raised on appeal. More-
over, in such an exceptional case, we are empowered by stat-
ute to transfer a petition for review to a district court for
further development of the record. See 28 U.S.C.
§ 2347(b)(3); Morgan v. Gonzales, 495 F.3d 1084, 1090 (9th
Cir. 2007). The mere possibility that a challenge might
require further fact-finding does not require habeas corpus
jurisdiction. See Puri, 464 F.3d at 1042 (rejecting a Suspen-
sion Clause challenge to REAL ID Act provisions stripping
district courts of habeas corpus jurisdiction because courts of
appeals are an “adequate substitute”).
[4] In sum, we conclude that where an alien is subject to
reinstatement of a prior removal order, the REAL ID Act
requires that the alien challenge the denial of his or her
adjustment-of-status application in a petition for review of the
reinstatement order. The district court did not have § 2241
habeas corpus jurisdiction to hear Morales’s challenge to the
denial of his adjustment-of-status application.
[5] But rather than dismiss Morales’s appeal for lack of
jurisdiction, we choose to construe it as a petition for review
timely filed in our court.8 See Freeman v. Gonzales, 444 F.3d
1031, 1033 n.4, 1037 (9th Cir. 2006) (construing a habeas
corpus petition challenging the denial of an adjustment-of-
status application as a petition for review under the REAL ID
8
The government in its briefing invites us to adopt this course. In light
of the statutory framework and the purposes of the REAL ID Act, we con-
clude that the government states the correct position.
5128 MORALES-IZQUIERDO v. DHS
Act). Section 106(c) of the REAL ID Act provides the rule of
decision, specifying that if an alien’s § 2241 habeas corpus
challenge was “pending in a district court on the date of
enactment” of the REAL ID Act, “the district court shall
transfer the case . . . to the court of appeals” and “[t]he court
of appeals shall treat the transferred case as if it had been filed
pursuant to a petition for review.” Here, Morales filed his
habeas corpus petition before the enactment of the REAL ID
Act, and the transfer provision expressly applies to challenges
to orders of removal. Although Morales’s appeal from the
denial of his habeas petition was not transferred at the time of
the REAL ID Act’s enactment, we conclude that construing
Morales’s appeal as a timely filed petition for review is con-
sistent with the purpose of the REAL ID Act and its transfer
provision. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050,
1053 (9th Cir. 2005) (construing a habeas petition as a timely
filed petition for review in the absence of express congressio-
nal direction because doing so is consistent with the intent of
Congress and the REAL ID Act’s language and structure).
Treating Morales’s appeal as a petition for review, we
reach the merits of his challenge to denial of his adjustment-
of-status application.9
III
Morales argues that even though he did not file an applica-
tion for a Form I-212 waiver when he applied for adjustment
of status in 2001, errors of the INS entitle him to have his
subsequently-filed Form I-212 waiver application treated as if
it were timely filed in 2001. Morales has a problem, however:
The current law of our circuit provides that a Form I-212
9
In construing Morales’s appeal as a petition for review, we review the
underlying INS decision to deny Morales adjustment of status, rather than
the district court’s grant of summary judgment. See Alvarez-Barajas, 418
F.3d at 1053. We review de novo the INS’s decision regarding purely
legal questions. Id.
MORALES-IZQUIERDO v. DHS 5129
waiver, even if granted, does not cure the inadmissibility of
an alien who reenters the United States without inspection
after a prior removal. Gonzales, 508 F.3d at 1242; see also 8
U.S.C. § 1182(a)(9)(C)(ii). Morales concedes that if the hold-
ing in Gonzales applies to him, he cannot cure the deficiency
in his adjustment-of-status application. Morales nonetheless
argues that Gonzales—decided six years after Morales filed
his first adjustment-of-status application and four years after
his second—cannot be applied retroactively to make him inel-
igible for a waiver of inadmissibility. He argues that under the
law that was established in our circuit prior to Gonzales, a
Form I-212 waiver could cure his inadmissibility, that he was
eligible for such a waiver, and that our prior law should apply
to him. For the reasons stated below, we hold that our deci-
sion in Gonzales applies “retroactively” to Morales, and that
he is ineligible for a Form I-212 waiver.
A
In Chevron USA, Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984), the Supreme Court created a
two-step inquiry for judicial review of an agency’s construc-
tion of a statute that the agency is charged with administering.
In the first step, we determine whether the meaning of the
statute is unambiguous, “for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress.” Id. at 842-43. If we conclude that the statute is “si-
lent or ambiguous,” we address the second step of Chevron,
where we will defer to an agency’s “permissible construction
of the statute.” Id. at 843. The United States Supreme Court
revisited these issues in National Cable & Telecommunica-
tions Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005).
There, the Supreme Court clarified that Chevron analysis still
applies in situations where an agency’s later-in-time interpre-
tation of a statute conflicts with a circuit court’s earlier inter-
pretation of the same statute. “A court’s prior judicial
construction of a statute trumps an agency construction other-
wise entitled to Chevron deference only if the prior court
5130 MORALES-IZQUIERDO v. DHS
decision holds that its construction follows from the unambig-
uous terms of the statute and thus leaves no room for agency
discretion.” Id. at 982. “Only a judicial precedent holding that
the statute unambiguously forecloses the agency’s interpreta-
tion, and therefore contains no gap for the agency to fill, dis-
places a conflicting agency construction.” Id. at 982-83.
In Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.
2004), we held that an alien who reenters the United States
without inspection after having been previously removed is
eligible for a nunc pro tunc Form I-212 waiver of the ten-year
bar to admissibility created by 8 U.S.C. § 1182(a)(9)(C). Id.
at 794. The text of the statute does not expressly provide for
the possibility of discretionary waiver before the expiration of
the ten-year bar. See 8 U.S.C. § 1182(a)(9)(C)(i)-(iii). How-
ever, we nonetheless held that INS could waive the ten-year
bar after the alien had unlawfully reentered the United States,
deferring to an INS regulation, 8 C.F.R. § 212.2(i)(2), that
appeared to allow for such a waiver.10 See Perez-Gonzalez,
379 F.3d at 794.
Two years later, in In re Torres-Garcia, 23 I. & N. Dec.
866 (BIA 2006), the BIA explicitly rejected our prior interpre-
tation of 8 U.S.C. § 1182(a)(9)(C) in Perez-Gonzalez, con-
cluding instead that the statute did not permit waiver of the
ten-year bar.11 Torres-Garcia, 23 I. & N. Dec. at 875-76.
“Even were we to assume that 8 C.F.R. § 212.2 did govern
implementation of section 212(a)(9)(C)(ii), however, we
could not interpret that regulation in a manner that is inconsis-
tent with the plain language of the Act. . . . Congress has
10
8 C.F.R. § 212.2(i)(2) states: “If the alien filed Form I-212 in conjunc-
tion with an application for adjustment of status under section 245 of the
Act, the approval of Form I-212 shall be retroactive to the date on which
the alien embarked or reembarked at a place outside the United States.”
11
To our knowledge, Torres-Garcia was the BIA’s first precedential
opinion addressing the availability of Form I-212 waivers for those subject
to the ten-year bar under 8 U.S.C. § 1182(a)(9)(C).
MORALES-IZQUIERDO v. DHS 5131
given the Attorney General no authority to grant an alien a
waiver of the section 212(a)(9)(C)(i) ground of inadmissibil-
ity, either retroactively or prospectively, prior to the end of
this 10-year period.” Torres-Garcia, 32 I. & N. Dec. at 875
(citing Perez-Gonzalez v. Ashcroft, 403 F.3d 1116, 1117-20
(9th Cir. 2005) (Gould, J., dissenting from denial of motion
to reconsider)).
[6] In Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007), we
addressed the conflict between our 2004 decision in Perez-
Gonzalez and the BIA’s 2006 decision in Torres-Garcia.
After determining that our holding in Perez-Gonzalez rested
on an ambiguity in the statutory scheme, we concluded that
Brand X required us to give Chevron deference to the BIA’s
subsequent reasonable interpretation of the statute. See id. at
1238-39. Reviewing Torres-Garcia, we concluded that the
BIA’s interpretation of 8 U.S.C. § 1182(a)(9)(C) was reason-
able. Gonzales, 508 F.3d at 1242. We thus deferred to the
BIA’s interpretation of the statute, holding that our decision
in Perez-Gonzalez had been “effectively overruled” to the
extent it conflicted with Torres-Garcia. Id. at 1236 n.7, 1242.
Under Gonzales, the current law of our circuit, 8 U.S.C.
§ 1182(a)(9)(C) bars aliens who have reentered the United
States without inspection after removal from receiving discre-
tionary waivers of inadmissibility before the ten-year bar has
expired.
B
Ordinarily, “[a] judicial construction of a statute is an
authoritative statement of what the statute meant before as
well as after the decision of the case giving rise to that con-
struction.” Rivers v. Roadway Express, Inc., 511 U.S. 298,
312-13 (1994). This results from the time-honored principle
that when a court construes a statute, “it is explaining its
understanding of what the statute has meant continuously
since the date when it became law.” Id. at 313 n.12; see also
United States v. City of Tacoma, 332 F.3d 574, 580 (9th Cir.
5132 MORALES-IZQUIERDO v. DHS
2003) (“The theory of a judicial interpretation of a statute is
that the interpretation gives the meaning of the statute from its
inception, and does not merely give an interpretation to be
used from the date of the decision.”). Thus, when a court
applies a statute to the parties before it, “that rule is the con-
trolling interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review and
as to all events, regardless of whether such events predate or
postdate [the] announcement of the rule.” Harper v. Va. Dep’t
of Taxation, 509 U.S. 86, 97 (1993). Gonzales interprets 8
U.S.C. § 1182(a)(9)(C) to render aliens who have reentered
the country illegally after a prior order of removal ineligible
for a nunc pro tunc Form I-212 waiver of inadmissibility
before expiration of the ten-year bar. We hold that Gonzales
bars Morales’s claim.
Morales argues that Gonzales does not render him ineligi-
ble to receive a nunc pro tunc Form I-212 waiver because
Gonzales declares only that 8 U.S.C. § 1182(a)(9)(C) is
ambiguous with respect to waivers of inadmissibility. Accord-
ing to Morales, our decision in Gonzales does not establish a
definitive interpretation of what the INA has always meant,
but rather that Congress has created a “gap” in the INA and
delegated authority to DHS to fill in the gap. Morales argues,
then, that the question is not whether our decision in Gonzales
applies retroactively, but rather whether the BIA’s interpreta-
tion of the INA in Torres-Garcia applies retroactively,
because it is Torres-Garcia that gives content to the gap in 8
U.S.C. § 1182(a)(9)(C). And unlike a judicial decision, a deci-
sion made by an administrative agency acting in an adjudica-
tory capacity does not necessarily apply retroactively. See,
e.g., Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322,
1328 (9th Cir. 1982) (“[W]hen a new problem is presented to
an administrative agency, the agency may act through adjudi-
cation to clarify an uncertain area of the law, so long as the
retroactive impact of the clarification is not excessive or
unwarranted.”). Therefore, Morales contends, we must con-
duct a multi-factor retroactivity analysis to determine whether
MORALES-IZQUIERDO v. DHS 5133
or not the rule of Torres-Garcia applies to him. See, e.g.,
Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir.
2007).
At first, this creative argument seems to strike at the
ancient, but still powerful, legal fiction that statutes have con-
tent before they are interpreted by courts, and that courts
“find” that preexisting content. See, e.g., 1 William Black-
stone, Commentaries *69 (3d ed. 1884) (“[J]udges do not pre-
tend to make a new law, but to vindicate the old one from
misrepresentation.”); Thomas Cooley, Constitutional Limita-
tions *91 (1868) (“[I]t is said that which distinguishes a judi-
cial from a legislative act is, that the one is a determination
of what the existing law is in relation to some existing thing
already done or happened, while the other is a predetermina-
tion of what the law shall be for the regulation of all future
cases.”). It is easy to accept that the first time a court inter-
prets an ambiguous statute, it is saying what the statute has
always meant. See, e.g., Rivers, 511 U.S. at 312-13. It is simi-
larly plausible that when a superordinate court overrules the
interpretation of an ambiguous statute by an inferior court, the
superordinate court is correcting an “erroneous” interpretation
of the statute and reaffirming what the statute has always
meant.12 See id. at 312. But when a court overrules its own
prior interpretation of an ambiguous statute in deference to an
interpretation by an agency—an agency that lacks the consti-
tutional authority to overrule the court’s prior interpretation—
the fiction that the statute has always meant one particular
thing may appear to break down. “[T]he agency’s decision to
construe the statute differently from a court does not say that
the court’s holding was legally wrong. Instead, the agency
12
“[E]ven in such cases the subsequent judges do not pretend to make
a new law, but to vindicate the old one from misrepresentation. For if it
be found that the former decision is manifestly absurd or unjust, it is
declared, not that such a sentence was bad law; but that it was not law;
that is, that it is not the established custom of the realm, as has been erro-
neously determined.” Blackstone, supra, at *69.
5134 MORALES-IZQUIERDO v. DHS
may, consistent with the court’s holding, choose a different
construction . . . .” Brand X, 545 U.S. at 983.
[7] Yet, whatever disputes on theory of statutory interpre-
tation may be sparked, we conclude that the interpretation of
the INA that we adopted in Gonzales renders Morales ineligi-
ble for a Form I-212 waiver. True, Gonzales declared the INA
ambiguous and deferred to the BIA’s interpretation of the
INA for the purpose of determining what the statute means.
But statutory ambiguity alone has never been sufficient to
render judicial interpretation of a statute non-retroactive.13
Gonzales is still a judicial decision interpreting a statute, and
courts remain “the final authority on issues of statutory con-
struction.” Chevron, 467 U.S. at 843 n.9. Under Gonzales, 8
U.S.C. § 1182(a)(9)(C)(ii) renders aliens in Morales’s posi-
tion ineligible for waiver of the ten-year bar. See Gonzales,
508 F.3d at 1242. That rule is dispositive and wholly scuttles
the argument of Morales. Whatever the adjudicative history
preceding Gonzales, and whatever the tools used in Gonzales
to interpret the statute, a statute can have only one meaning,
and Gonzales tells us what that meaning is. That it is a mean-
ing different from our earlier interpretation in Perez-Gonzalez
may challenge, absent some reconciling theory, a legal fiction
on statutory interpretation that is ill equipped for a Brand X
reality.14 But in practice such deference is not markedly differ-
ent from the case in which a federal court’s interpretation of
13
This is amply demonstrated by the many judicial decisions under
Chevron deferring to an agency’s interpretation of an ambiguous statute
and applying that interpretation to the parties before the court. See, e.g.,
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955-56 (9th Cir.
2009); Marmolejo-Campos v. Holder, 558 F.3d 903, 916-17 (9th Cir.
2009) (en banc); Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1012-15 (9th
Cir. 2006) (en banc).
14
Justice Frankfurter observed, “We should not indulge in the fiction
that the law now announced has always been the law . . . . It is much more
conducive to law’s self-respect to recognize candidly the considerations
that give prospective content to a new pronouncement of law.” Griffin v.
Illinois, 351 U.S. 12, 26 (1956) (Frankfurter, J., concurring).
MORALES-IZQUIERDO v. DHS 5135
an ambiguous state law is overridden by a conflicting but
authoritative interpretation of that law by a state court of last
resort. See Brand X, 545 U.S. at 983-84; cf. United Gas Pipe
Line Co. v. Ideal Cement Co., 369 U.S. 134, 135 (1962)
(vacating a decision of a federal court of appeals interpreting
state law because it “was rendered in advance of construction
[of the state law] by the courts of the State, which alone, of
course, can define [the state law’s] authoritative meaning”).
Like a state court, the agency “remains the authoritative inter-
preter” of a statute it is charged with administering. Brand X,
545 U.S. at 983. And although an agency’s power to override
prior judicial precedent is more circumscribed than that of a
state court, a subsequent judicial interpretation of the same
statute based on Brand X deference is no less precedential
simply because it relied on agency expertise that was not
available to the earlier judicial panel.15
That Gonzales is ultimately a judicial interpretation of a
federal statute places it on a fundamentally different plane
from the body of retroactivity jurisprudence upon which
Morales relies. Montgomery Ward and its progeny deal with
the problems of retroactivity created when an agency, acting
in an adjudicative capacity, so alters an existing agency-
promulgated rule that it deprives a regulated party of the
advance notice necessary to conform its conduct to the rule.
See, e.g., Miguel-Miguel, 500 F.3d at 949-50 (Attorney Gen-
eral’s decision altering prior adjudicatory rule); Chang v.
United States, 327 F.3d 911, 925-26 (9th Cir. 2003) (INS
adjudicatory decisions altering terms of existing rule); Mont-
gomery Ward, 691 F.2d at 1326, 1329 (FTC adjudicative
decision interpreting 16 C.F.R. § 702.3). But new judicial
15
Nor are we the first court to conclude that a new interpretation of a
statute in light of Brand X is nonetheless entitled to the traditional trap-
pings of judicial statutory interpretation. See, e.g., Fernandez v. Keisler,
502 F.3d 337, 348-52 (4th Cir. 2007) (overruling prior precedent in light
of Brand X and an intervening BIA interpretation, and denying a petition
for review on the basis of the new statutory interpretation).
5136 MORALES-IZQUIERDO v. DHS
decisions interpreting old statutes have long been applied
retroactively to all cases open on direct review, “regardless of
whether . . . events predate or postdate” the statute-
interpreting decision. Harper, 509 U.S. at 97.
Morales expresses a sense of unfairness engendered by the
retrospective application of a new judicial interpretation of an
old statute. But “[t]he essence of judicial decisionmaking . . .
necessarily involves some peril to individual expectations.”
Rivers, 511 U.S. at 312. One could imagine a system that did
not require retrospective application of statutory interpreta-
tions. But that is not the system that we have long adminis-
tered in our courts. Courts have long interpreted ambiguous
statutes to establish specific rules of law that have retroactive
effect. That is because within our system of government, the
Constitution vests Congress with the power to proscribe stat-
utes that the judicial branch lacks the power to amend. It is
a corollary of that principle that when a court interprets a stat-
ute, even an ambiguous one, and even when that interpreta-
tion conflicts with the court’s own prior interpretation, the
new interpretation is treated as the statute’s one-and-only
meaning. See Griffith v. Kentucky, 479 U.S. 314, 323 (1987)
(“[The] assertion of power to disregard current law in adjudi-
cating cases . . . that have not already run the full course of
appellate review, is quite simply an assertion that our consti-
tutional function is not one of adjudication but in effect of
legislation.” (quoting Mackey v. United States, 401 U.S. 667,
679 (1971) (Harlan, J., concurring in the judgment))). As the
Supreme Court has said when interpreting our national char-
ter, “[t]he source of a ‘new rule’ is the Constitution itself, not
any judicial power to create new rules of law. Accordingly,
the underlying right necessarily pre-exists our articulation of
the new rule.” Danforth v. Minnesota, 552 U.S. 264, 271
(2008).
[8] Morales seeks a nunc pro tunc Form I-212 waiver to
cure his inadmissibility and make him eligible for adjustment
of status. But the law of our circuit in Gonzales explicitly and
MORALES-IZQUIERDO v. DHS 5137
without apology holds that 8 U.S.C. § 1182(a)(9)(C)—a stat-
ute that predates Morales’s illegal reentry into the United
States in 2001—does not permit such waivers. The statute and
our precedent control our decision. We hold that a Form I-212
waiver cannot cure Morales’s inadmissibility until the expira-
tion of the ten-year bar.16
C
Finally, Morales argues that denial of adjustment of status
violates a substantive due process right of Morales and his
family to live together as a family, by effectively excluding
him from the United States for ten years. Morales cites Moore
v. City of East Cleveland, 431 U.S. 494 (1977), in which the
Supreme Court stated that “freedom of personal choice in
matters of marriage and family life is one of the liberties pro-
tected by the Due Process Clause of the Fourteenth Amend-
ment,” and that “when the government intrudes on choices
concerning family living arrangements, this Court must exam-
ine carefully the importance of the governmental interests
advanced and the extent to which they are served by the chal-
lenged regulation.” Id. at 499.
[9] We may have sympathy for Morales’s situation, insofar
as it is always troubling when the impact of our immigration
laws is to scatter a family or to require some United States cit-
izen children to move to another country with their parent.
But the right as asserted by Morales is one far removed from
the right of United States citizens to live together as a family
espoused in Moore. Morales “point[s] to no authority to sug-
gest that the Constitution provides [him] with a fundamental
16
Because we hold that Morales cannot cure his inadmissibility with a
Form I-212 waiver, we do not reach his claims that the INS violated its
own regulations, due process, and our precedent by not giving Morales an
opportunity to apply for such a waiver. Even if the INS erred, its error
could not have prejudiced Morales given our holding here. See Berrum-
Garcia, 390 F.3d at 1168.
5138 MORALES-IZQUIERDO v. DHS
right to reside in the United States simply because other mem-
bers of [his] family are citizens or lawful permanent resi-
dents.” De Mercado v. Mukasey, 566 F.3d 810, 816 n.5 (9th
Cir. 2009). Moreover, adjustment of status is a form of relief
committed to the Secretary’s discretion, and “[s]ince discre-
tionary relief is a privilege created by Congress, denial of
such relief cannot violate a substantive interest protected by
the Due Process clause.” Munoz v. Ashcroft, 339 F.3d 950,
954 (9th Cir. 2003). In short, lawfully denying Morales
adjustment of status does not violate any of his or his family’s
substantive rights protected by the Due Process Clause.
To hold otherwise would create a barrier to removing an
illegal alien like Morales in any case where that alien has
married a United States citizen wife or fathered United States
citizen children. Stated another way, to indulge this theory is
to hold that an illegal alien with United States citizen family
members cannot be removed, regardless of the illegality of
that alien’s entry into the United States or conduct while
within its borders. Such a remarkable proposition, which
would radically alter the status quo of our immigration law,
simply cannot be gained by judicial fiat from an intermediate
court. If there is to be such a fundamental change in immigra-
tion law, it must originate with the Congress or with the
United States Supreme Court, and not at our level of the judi-
ciary.
IV
[10] We conclude that the REAL ID Act stripped the dis-
trict court of habeas corpus jurisdiction to consider Morales’s
challenge to the administrative denial of his adjustment-of-
status application, because the denial was part of a reinstate-
ment order constituting an “order of removal.” Construing the
appeal as a timely filed petition for review, we hold that our
interpretation of the INA in Gonzales—following the
Supreme Court’s directive in Brand X and overruling our
prior interpretation of the statute—applies to all cases cur-
MORALES-IZQUIERDO v. DHS 5139
rently on direct review. Accordingly, a Form I-212 waiver
cannot cure Morales’s inadmissibility under 8 U.S.C.
§ 1182(a)(9)(C). Denying his adjustment-of-status application
does not violate due process, even in the light of impact on
his family. Morales is not eligible to adjust his status.
PETITION DENIED.