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
October 8, 2010—Pasadena, California
Filed April 11, 2011
Before: Raymond C. Fisher and Jay S. Bybee,
Circuit Judges, and Edward F. Shea, District Judge.*
Opinion by Judge Bybee
*The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
4781
GARFIAS-RODRIGUEZ v. HOLDER 4785
COUNSEL
Soren M. Rottman, Esq., Northwest Immigrant Rights Project,
Granger, Washington, for the petitioner.
Tony West, Blair T. O’Connor, and Luis E. Perez, Civil Divi-
sion, Department of Justice, Washington, D.C., for the
respondent.
4786 GARFIAS-RODRIGUEZ v. HOLDER
OPINION
BYBEE, Circuit Judge:
Petitioner-Appellant Francisco Garfias-Rodriguez (“Gar-
fias”) appeals a final removal order issued by the Board of
Immigration Appeals (“BIA”) that determined that he was
ineligible for adjustment of status under 8 U.S.C. § 1255(i).
He challenges the order on two grounds. First, he contends
that our interpretation of 8 U.S.C. §§ 1182(a)(9)(C)(i)(I) and
1255(i) in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006),
takes precedence over the BIA’s subsequent and contrary
reading in Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007).
Second, he argues that even if Briones is controlling, the BIA
impermissibly applied it to him retroactively. Additionally,
Garfias argues that the Attorney General exceeded his author-
ity by promulgating 8 C.F.R. § 1240.26(i), which terminates
a grant of voluntary departure upon the filing of a petition for
review of a final removal order. We reject all three of Gar-
fias’s arguments and deny his petition for review.
I
Garfias is a native and citizen of Mexico. He unlawfully
entered the United States in 1996 and departed the country,
once in 1999 and once in 2001 (to visit his ailing mother and
to attend her funeral, respectively), each time reentering with-
out inspection. On April 5, 2002, Garfias married his current
wife, Nancy, a United States citizen. He subsequently applied
to adjust his status to that of a lawful permanent resident and
paid an additional $1,000 fee with this application because he
had entered without inspection. On March 24, 2004, the
United States Immigration and Customs Enforcement (“ICE”)
instituted removal proceedings against Garfias on the grounds
that he entered the United States without inspection.
At a hearing before an Immigration Judge (“IJ”), ICE reit-
erated its allegations that Garfias departed the United States
GARFIAS-RODRIGUEZ v. HOLDER 4787
in 1999 and reentered in 2000 without being paroled or admit-
ted. Garfias admitted these facts and conceded that he was
removable, but argued that he could still adjust his status
under 8 U.S.C. § 1255(i). He requested relief in the form of
adjustment and, in the alternative, voluntary departure.
The IJ denied Garfias’s application for status adjustment
but granted him voluntary departure. The IJ held that Garfias
was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) and
was ineligible for any waiver of inadmissibility. Accordingly,
he was ineligible for status adjustment under § 1255(i), which
requires an applicant to be admissible to the United States.
Garfias appealed to the BIA. In a per curiam decision, the
BIA sustained his appeal and remanded the case to the IJ for
reconsideration in light of our previous decisions in Perez-
Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), and
Acosta.
On remand, the IJ acknowledged Perez-Gonzalez and
Acosta, but denied Garfias’s application on other grounds.
The judge denied the request for status adjustment but once
again granted voluntary departure.
Garfias again appealed to the BIA. Instead of relying on the
IJ’s stated reasoning, however, the BIA cited its intervening
opinion in Briones, in which it found that persons inadmissi-
ble under 8 U.S.C. § 1182(a)(9)(C)(i)(I) could not seek adjust-
ment of status under § 1255(i). It dismissed Garfias’s appeal,
granted him sixty days to voluntarily depart, ordered removal
in the event that he failed to depart, and informed him that fil-
ing a petition for review would immediately terminate the
grant of voluntary departure.
Garfias subsequently filed a petition for review with this
court as well as a motion to stay his removal.
4788 GARFIAS-RODRIGUEZ v. HOLDER
II
We must first determine whether aliens who are inadmissi-
ble under 8 U.S.C. § 1182(a)(9)(C)(i)(I) may nonetheless
apply for adjustment of status under 8 U.S.C. § 1255(i).
Deferring to the BIA’s decision in Briones, we hold that they
may not.1
[1] The opening clause of § 1182(a) specifies that
“[e]xcept as otherwise provided in this chapter, aliens who
are inadmissible under the following paragraphs are ineligible
to receive visas and ineligible to be admitted to the United
States.” 8 U.S.C. § 1182(a) (emphasis added). This provision
is a “savings clause” that authorizes “admission of otherwise
inadmissible aliens where the statute so provides.” Renteria-
Ledesma v. Holder, 615 F.3d 903, 906 (8th Cir. 2010) (citing
Mora v. Mukasey, 550 F.3d 231, 234 (2d Cir. 2008)). Subsec-
tion 1182(a)(9)(C)(i)(I) provides that “[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 admitted is inadmissi-
ble.” Section 1182(a)(9)(C)(ii) provides an exception for
those aliens who are “seeking admission more than 10 years
after the date of the alien’s last departure from the United
1
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). Furthermore, we defer to the BIA’s interpretation and applica-
tion 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).
In interpreting the immigration laws, we grant deference to the BIA
under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-45 (1984). The Chevron analysis consists of two steps.
First, we ask whether Congress has spoken to the precise question at issue;
if it has, then we give effect to the unambiguously expressed intent of
Congress. Id. at 842-43. If the statute is ambiguous, on the other hand, we
ask only whether the agency has adopted “a permissible construction of
the statute.” Id. at 843.
GARFIAS-RODRIGUEZ v. HOLDER 4789
States if . . . the Secretary of Homeland Security has con-
sented to the alien’s reapplying for admission.”
[2] Section 1255(i) sets out the conditions under which an
alien who is “physically present in the United States” and who
“entered the United States without inspection” may “apply to
the Attorney General for the adjustment of his or her status to
that of an alien lawfully admitted for permanent residence.”
8 U.S.C. §§ 1255(i)(1)(A), (C). Section 1255(i)(2)(A) speci-
fies that the Attorney General may adjust an alien’s status 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) (emphasis added).
Neither § 1182(a)(9)(C) nor § 1255(i) makes reference to
the other.
A
We first briefly summarize the relevant legal framework
preceding this case. In Perez-Gonzalez v. Ashcroft, 379 F.3d
783 (9th Cir. 2004), we held, contrary to an INS guidance
memorandum, that the inadmissibility provision of 8 U.S.C.
§ 1182(a)(9)(C)(i)(II)did not preclude status adjustment under
8 U.S.C. § 1255(i).2 We observed, first, that the INS’s inter-
pretation of the two provisions was contained in the “informal
format[ ]” of a guidance memorandum, and was therefore not
entitled to “the rigorous deference owed formal agency inter-
pretations under [Chevron].” Id. at 793. Applying this less
deferential form of review, we found that it was “impossible
to reconcile the interpretation of the statute in 8 C.F.R.
§ 212.2, which indicates that illegal reentrants can seek
2
Section 1182(a)(9)(C)(i)(II) is the companion provision of the statute
at issue in this case and provides that “[a]ny alien who . . . has been
ordered removed under section 1225(b)(1) of this title, section 1229a of
this title, or any other provision of law . . . and who enters or attempts to
reenter the United States without being admitted is inadmissible.”
4790 GARFIAS-RODRIGUEZ v. HOLDER
adjustment of status, with the interpretation in the agency’s
informal guidance memorandum, which states that they are
categorically barred from receiving adjustment of status.” Id.
at 793-94.3 Accordingly, we concluded that “[i]n the absence
of a more complete agency elaboration of how its interpreta-
tion of [§ 1182(a)(9)] can be reconciled with its own regula-
tions, we must defer to the regulations rather than to the
informal guidance memorandum.” Id. at 794. We held that
aliens who are inadmissible under § 1182(a)(9)(C)(i)(II) could
nonetheless seek adjustment of status. Id. at 795.
[3] Next, in Acosta v. Gonzales, 439 F.3d 550, 556 (9th
Cir. 2006), we extended the reasoning of Perez-Gonzalez and
held that aliens who were inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I) — the provision at issue in this case —
remained eligible for adjustment under § 1255(i). We empha-
sized 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.
The BIA subsequently issued two opinions that are relevant
to this case. In Matter of Torres-Garcia, 23 I. & N. Dec. 866
(BIA 2006), the BIA accepted our invitation to provide “a
more complete agency elaboration of how its interpretation of
[§ 1182(a)(9)] can be reconciled with its own regulations.”
Perez-Gonzalez, 379 F.3d at 794. The BIA concluded that
“the Ninth Circuit’s analysis regarding the availability of a
retroactive waiver of the ground of inadmissibility set forth at
[§ 1182(a)(9)(C)(i)] contradicts the language and purpose of
the Act and appears to have proceeded from an understand-
able, but ultimately incorrect, assumption regarding the appli-
cability of 8 C.F.R. § 212.2.” Torres-Garcia, 23 I. & N. Dec.
3
8 C.F.R. §§ 212.2(e) and 212.2(i)(2) interpret § 1255(i), and the former
provision specifies that applicants for adjustment of status “must request
permission to reapply for entry in conjunction with [their] application for
adjustment of status.”
GARFIAS-RODRIGUEZ v. HOLDER 4791
at 873. The BIA noted that 8 C.F.R. § 212.2 — the regulation
that we had held was in conflict with the agency guidance
memoranda — “was not promulgated to implement . . . sec-
tion [1182(a)(9)],” but “implement[ed] statutory provisions
that were repealed by the [Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (‘IIRIRA’)].” Id. at
874, 875. It further noted that our decision in Perez-Gonzalez
effectively allowed § 1255(i) to function as means to “circum-
vent the statutory 10-year limitation on [§ 1182(a)(9)(C)(ii)]
waivers” by allowing aliens to “simply reenter[ ] unlawfully
before requesting the waiver.” Id. at 876.
[4] In Matter of Briones, 24 I. & N. Dec. 355, 370 (BIA
2007), the BIA revisited the question we answered in Acosta
and again rejected our reasoning. It explained that
§ 1182(a)(9)(C)(i)(I) applies to “recidivists, that is, those 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 Board observed that
§ 1182(a)(9)(C)(i)(I) could therefore trump § 1255(i) without
rendering the latter provision superfluous. Id. at 365-66. 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 discre-
tionary waivers of inadmissibility, or both.” Id. at 367.
Accordingly, the BIA decided that despite our decision in
Acosta, it “[found] little merit in the . . . argument . . . that it
would be incompatible with the remedial purpose of section
[1255(i)] to make adjustment of status unavailable to [aliens
inadmissible under section 1182(a)(9)(C)(i)(I)].” Id. at 370.
The Board held that “aliens who are inadmissible under
[§ 1182(a)(9)(C)(i)(I)] cannot qualify for [§ 1255(i)] adjust-
ment, absent a waiver of inadmissibility.” Id. at 371.
[5] We addressed the effect of the BIA’s Torres-Garcia
opinion in Duran Gonzales v. Department of Homeland
4792 GARFIAS-RODRIGUEZ v. HOLDER
Security, 508 F.3d 1227 (9th Cir. 2007). In Duran Gonzales,
we held that under the framework established by Chevron and
National Cable and Telecommunications Association v.
Brand X Internet Services, 545 U.S. 967 (2005), the BIA’s
Torres-Garcia opinion effectively superseded our interpreta-
tion in Perez-Gonzalez. See Duran Gonzalez, 508 F.3d at
1242. First, we found that in Perez-Gonzalez we had inter-
preted the interplay of §§ 1182(a)(9)(C)(i)(I) and 1255(i) only
after we determined that the statute was ambiguous and that
the BIA had not issued a controlling decision that resolved
this ambiguity. See id. at 1237-38. Second, relying on Brand
X, we held that Perez-Gonzalez did not foreclose subsequent
agency interpretations of the statute, and that Torres-Garcia
constituted such an interpretation. See id. at 1238-41. We con-
cluded that the BIA’s interpretation of § 1182(a)(9)(C)(i)(II)
in Torres-Garcia was “clearly reasonable and is therefore
entitled to Chevron deference under Brand X.” Id. at 1242.
Following Torres-Garcia, we held that aliens “ineligible to
receive [§ 1182] waivers” are “not eligible to adjust their sta-
tus” under § 1255(i). See id. at 1242.
With that background, we now turn to the case before us.
B
We begin by asking whether Congress has spoken to the
precise question at issue. See Chevron, 467 U.S. at 842. Here,
Garfias urges us to hold that we settled the question of
whether § 1182(a)(9) trumps § 1255(i) in Acosta, when we
interpreted the same statutes in the absence of an authoritative
interpretation by the BIA. However, we see no basis for dis-
tinguishing § 1182(a)(9)(C)(i)(I) from § 1182(a)(9)(C)(i)(II)
or for departing from the reasoning of Duran Gonzalez. In
Brand X, the Supreme Court held that “[a] court’s prior judi-
cial construction of a statute trumps an agency construction
otherwise entitled to Chevron deference only if the prior court
decision holds that its construction follows from the unambig-
uous terms of the statute and thus leaves no room for agency
GARFIAS-RODRIGUEZ v. HOLDER 4793
discretion.” 545 U.S. at 982; see Duran Gonzalez, 508 F.3d
at 1235-36. Because we believe that Acosta was not such a
decision, we hold that Briones is entitled to deference under
Chevron and Brand X.
[6] 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 there by relying heavily
on our earlier Perez-Gonzalez decision. Acosta, 439 F.3d at
553. Other circuits have also noted that the tension between
§§ 1182(a)(9)(C)(i)(I) and 1255(i) creates a statutory ambigu-
ity and cannot be resolved conclusively by resort to the text.
See, e.g., Renteria-Ledesma v. Holder, 615 F.3d 903, 908 (8th
Cir. 2010); Ramirez v. Holder, 609 F.3d 331, 335-36 (4th Cir.
2010); Mora v. Mukasey, 550 F.3d 231, 238 (2d Cir. 2008);
Ramirez-Canales v. Mukasey, 517 F.3d 904, 907-08 (6th Cir.
2008); see also Lemus-Losa v. Holder, 576 F.3d 752, 760 (7th
Cir. 2009) (noting, in dicta, that “[i]f the question before us
were . . . the relation between [§ 1182(a)(9)(C)(i)(I)] and [§ ]
1255(i) . . . we would agree that there is sufficient ambiguity
in these provisions to require Chevron deference, and we
would find that the BIA has drawn a rational line”); Herrera-
Castillo v. Holder, 573 F.3d 1004, 1007 (10th Cir. 2009)
(“We need not wrestle much with whether §§ 1255(i) and
1182(a) are ambiguous for Chevron purposes. . . . [A]pplying
the statutes’ plain language would render § 1255(i) a nullity.
Unable to rely on the statutes’ plain language, therefore, we
cannot ascertain whether Congress had an intention on the
precise question at issue.” (internal citations and alterations
omitted)).
[7] We previously refused to give deference to the BIA’s
interpretation 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 provided
a thoroughly developed opinion that disagrees with our inter-
4794 GARFIAS-RODRIGUEZ v. HOLDER
pretation in Acosta. Additionally, our decision in Acosta
relied heavily on our reasoning in Perez-Gonzalez, which has
itself been effectively abrogated by the BIA’s decision in
Torres-Garcia. See Duran Gonzalez, 508 F.3d at 1242.
Because Acosta did not “unambiguously foreclose[ ]” the
BIA’s authority to interpret the interplay between
§§ 1182(a)(9)(C)(i)(I) and 1255(i), the BIA remains “the
authoritative interpreter (within the limits of reason)” of the
immigration laws. Brand X, 545 U.S. at 983. Thus, we hold
that the BIA’s decision in Briones addressed a statutory
ambiguity and is entitled to Chevron deference.
D
[8] We now turn to whether the BIA’s interpretation of the
statutory framework is reasonable. See Chevron, 467 U.S. at
843-44. Every circuit that has addressed the issue has con-
cluded that Briones is a reasonable interpretation of
§§ 1182(a)(9)(C)(i)(I) and 1255(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 conclusion is reason-
able.
As we noted in Acosta, §§ 1182(a)(9)(C)(i)(I) and 1255(i)
contain two competing mandates. The former provision seems
to categorically exclude certain classes from admissibility
altogether, while the latter provision allows an otherwise
inadmissible alien to seek a status adjustment in exchange for
a penalty fee. See Acosta, 439 F.3d at 553. Thus, § 1182(a)
refers generally to “aliens who are inadmissible,” 8 U.S.C.
§ 1182(a) (emphasis added) — including all aliens who are
physically present in the United States and who entered with-
out inspection — while § 1255(i) refers to “alien[s] physically
present in the United States . . . who entered the United States
without inspection,” but who may nonetheless be deemed “el-
igible to receive an immigrant visa and . . . admissible to the
United States,” 8 U.S.C. § 1255(i)(2)(A) (emphasis added).
GARFIAS-RODRIGUEZ v. HOLDER 4795
The BIA also acknowledged this ambiguity, noting that “the
plain language of the statute seems to make ‘entry without
inspection’ both a qualifying and a disqualifying condition for
adjustment of status.” Briones, 24 I. & N. Dec. at 362.
[9] The BIA found that the current adjustment provision
was enacted as part of the IIRIRA. 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. Although Congress intended to dis-
courage aliens from moving to the United States before
becoming eligible for permanent residence, Congress found
that the “inspected 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. Section 1255(i) authorized a “limited departure from the
general ‘inspection and admission’ requirement. Id. at 360.
The BIA noted that the current ambiguity between the
§§ 1182(a)(9)(C)(i)(I) and 1255(i) was a consequence of a
switch from use of the term “deportable” to “inadmissible” to
describe aliens who entered without inspection. See id. at 363.
It resolved this ambiguity by concluding that § 1255(i) applies
to some aliens who are physically present in the United States
and entered without inspection, but not to those aliens who
entered the country without inspection, stayed for at least a
year, departed the country, and then “enter[ed] or attempt[ed]
to reenter the United States without being admitted.” 8 U.S.C.
§ 1182(a)(9)(C)(i)(II). The latter class of aliens — which the
BIA refers to as “recidivists” — are not eligible for adjust-
ment of status under § 1255(i) because otherwise § 1255(i)
would “be making . . . adjustment available to a whole new
class of aliens who had never been eligible for it.” Briones,
24 I. & N. Dec. at 365-67. Finally, the BIA deemed it “of cru-
cial importance” to its interpretation that “in every other case
where Congress has extended eligibility for adjustment of sta-
tus to inadmissible aliens . . . it has done so unambiguously,
either by negating certain grounds of inadmissibility outright
4796 GARFIAS-RODRIGUEZ v. HOLDER
or by providing for discretionary waivers of inadmissibility,
or both.” Id. at 367.
[10] In light of the BIA’s reasoned opinion, we hold that
the BIA’s decision in Briones is entitled to deference. Apply-
ing Briones to this case, we conclude that Garfias is inadmis-
sible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) and not subject to
the exception in § 1182(a)(9)(C)(ii). He is, therefore, not eli-
gible for adjustment of status under 8 U.S.C. § 1255(i).
III
[11] Garfias contends that even if Briones controls the
interpretive question in this case, the BIA should not have
retroactively applied its conclusion to his case. We disagree.
An agency is generally free to implement new administrative
policies through adjudicative procedures instead of rulemak-
ing. See SEC v. Chenery Corp., 332 U.S. 194, 202 (1947). We
have held 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.”
Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322, 1328
(9th Cir. 1982).
[12] Here, however, the BIA has not implemented a new
policy or exercised its regulatory authority to adopt a new
rule; it has simply put forward an interpretation of
§§ 1182(a)(9)(C)(i)(I) and 1255(i) that happens to be at odds
with our interpretation of the same provisions in Acosta.
Recently, in Morales-Izquierdo v. Department of Homeland
Security, 600 F.3d 1076, 1087-92 (9th Cir. 2010), we held
that the BIA could retroactively apply its decision in Torres-
Garcia despite the fact that the BIA’s opinion departed from
the interpretation we provided in Perez-Gonzalez. The peti-
tioner in that case argued that, unlike a judicial interpretation
of a statute, which “explain[s] [the court’s] understanding of
what the statute has meant continuously since the date when
it became law,” an agency interpretation merely “gives con-
GARFIAS-RODRIGUEZ v. HOLDER 4797
tent to the gap” in a statutory scheme and may not apply retro-
actively. Id. at 1088. We acknowledged that “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 constitutional authority to overrule the court’s
prior interpretation — the fiction that the statute has always
meant one particular thing may appear to break down.” Id. at
1089. However, we noted that in light of Brand X, an agency,
like a state court, “remains the authoritative interpreter of a
statute it is charged with administering.” Id. at 1089-90 (inter-
nal quotation marks omitted). Accordingly, “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.”
Id. at 1090. We held in that case that the rule we adopted in
Duran Gonzales could properly be applied to the petitioner.
See id.
[13] We see no reason to depart from our previous treat-
ment of § 1182(a)(9)(C)(i)(II) in deciding how to treat its
companion provision. Today, we hold that adjustment of sta-
tus under § 1255(i) is unavailable to aliens inadmissible under
§ 1182(a)(9)(C)(i)(I). In doing so, we are not creating a new
rule of law, but rather we are correcting our prior reading of
the statutes in Acosta based on the BIA’s authoritative ruling
in Briones. See Rivers v. Roadway Express, Inc., 511 U.S.
298, 312-13 (1994) (“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.” (emphasis added)). Under Chevron and Brand X,
the BIA has authority to offer authoritative constructions of
immigration provisions, so we see no reason to treat Briones
as anything less than a binding clarification of
§§ 1182(a)(9)(C)(i)(I) and 1255(i), one that we approve today.
Accordingly, we hold that the BIA properly applied its deci-
sion in Briones to Garfias.
4798 GARFIAS-RODRIGUEZ v. HOLDER
IV
[14] Finally, Garfias challenges the automatic termination
of the BIA’s grant of voluntary departure on two grounds.
First, he argues that notwithstanding 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 promulgated the regulation pursuant to
8 U.S.C. § 1229c(e).
[15] 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 automati-
cally upon the filing of the petition or other judicial chal-
lenge,” and was made effective on January 20, 2009. 8 C.F.R.
§ 1240.26(i). The authorizing statute, § 1229c(e), authorizes
the Attorney General to “by regulation limit eligibility for
voluntary departure under this section for any class or classes
of aliens.” 8 U.S.C. § 1229c(e).4
A
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.
4
Section 1229c(e) further provides that “[n]o court may review any reg-
ulation issued under this subsection.” 8 U.S.C. § 1229c(e). Although this
might seem to strip us of jurisdiction, another provision, 8 U.S.C.
§ 1252(a)(2)(D), specifies 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 ques-
tions of law raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section.” Because the parties have
not disputed our ability to review the Attorney General’s authority to pro-
mulgate 8 C.F.R. § 1240.26(i), we see no occasion to determine whether
§ 1229c(e) and § 1252(a)(2)(D) conflict with each other and, if they do,
which statute assumes priority over the other.
GARFIAS-RODRIGUEZ v. HOLDER 4799
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
leave its resolution for another day.” (internal citations omit-
ted)). We had previously held that we have equitable authority
to stay a petitioner’s voluntary departure period. El Himri v.
Ashcroft, 344 F.3d 1261, 1263 (9th Cir. 2003). Our sister cir-
cuits, except for the Fourth, had agreed. See, e.g., Thapa v.
Gonzales, 460 F.3d 323, 332 (2d Cir. 2006); Obale v. Attor-
ney General, 453 F.3d 151, 157 (3d Cir. 2006); Bocova v.
Gonzales, 412 F.3d 257, 267-68 (1st Cir. 2005); 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 concluded . . . that 8 U.S.C. § 1252(a)(2)(B)
precludes judicial review of the BIA’s order granting volun-
tary departure, we cannot evade this statutory directive by
resort to equity.”).
However, each of these decisions was reached before the
Attorney General promulgated 8 C.F.R. § 1240.26(i). The
regulation specifies that “[i]f, prior to departing the United
States, the alien files a petition for review . . . or any other
judicial challenge to the administratively 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). The First and Third Circuits have
recently acknowledged that this regulation, in effect, resolves
the question of whether courts have authority to stay the vol-
untary departure period pending review, since it provides for
the automatic termination of that period. See Patel v. Attorney
General, 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
4800 GARFIAS-RODRIGUEZ v. HOLDER
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) (“[8 C.F.R. § 1240.26(i)]
amended the voluntary departure regulation, which now, in
part, provides that a grant of voluntary departure on or after
January 20, 2009, automatically terminates with the filing of
a petition for review.”).
[16] We agree with the First and Third Circuits. Garfias
has given us no reason to believe that courts possess equitable
authority to 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 in turn exer-
cised this authority by deciding that a grant of voluntary
departure terminates upon the filing of a petition for review.
This regulation effectively abrogates our contrary decision in
El Himri, 344 F.3d at 1262 (relying on Zazueta-Carrillo v.
Ashcroft, 322 F.3d 1166, 1175-78 (9th Cir. 2003) (Berzon, J.,
concurring). See also Hakim, 611 F.3d at 78; Zazueta-
Carrillo, 322 F.3d at 1175 (Berzon, J., concurring) (“There is
nothing in the statute or the applicable regulations precluding
such a stay of the voluntary departure period.”); id. at 1176
(“Given the absence of any statutory prohibition on stays of
periods of voluntary departure once granted . . . we retain
such [equitable] authority.”); cf. United States v. Oakland
Cannabis Buyers’ Co-op, 532 U.S. 483, 496 (2001) (noting
that Congress is free to limit federal courts’ equitable discre-
tion in crafting injunctive relief). Accordingly, because the fil-
ing 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 equitable stay of the voluntary departure period.
B
[17] Although no circuit so far has been squarely con-
fronted with the question of whether 8 C.F.R. § 1240.26(i) is
GARFIAS-RODRIGUEZ v. HOLDER 4801
a reasonable application of § 1229c(e), a number of circuits
have summarily applied the regulation without explicitly
affirming its validity. See, e.g., Pawlowska v. Holder, 623
F.3d 1138, 1139 n.2 (7th Cir. 2010); Patel v. Attorney Gen-
eral, 619 F.3d 230, 233-34 (3d Cir. 2010); Hakim v. Holder,
611 F.3d 73, 78 (1st Cir. 2010).
[18] In determining whether an agency regulation is ultra
vires, we again apply the two-step Chevron analysis. See
Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir. 2007).
Accordingly, we first ask whether Congress has spoken to the
precise matter at issue, and if it has not, we ask whether the
agency’s attempt to resolve the resulting ambiguity is reason-
able. See Chevron, 467 U.S. at 842-43. We hold that Congress
has unambiguously granted the Attorney General broad
authority to control the scope of voluntary departure grants,
and that we need not reach Chevron’s second step.
Section 1229c authorizes the Attorney General to “permit
an alien voluntarily to depart the United States at the alien’s
own expense under this subsection, in lieu of being subject to
proceedings under section 1229a of this title or prior to the
completion of such proceedings, if the alien is not deportable
under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of
this title.” 8 U.S.C. § 1229c(a)(1). Subsection (e), which is at
issue in this case, provides the Attorney General with author-
ity to “by regulation limit eligibility for voluntary departure
under this section for any class or classes of aliens.” 8 U.S.C.
§ 1229c(e).
The statute grants the Attorney General broad authority to
limit, by regulation, the availability of voluntary departure to
various classes of aliens. 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
‘limit[ing] eligibility for voluntary departure . . . for any class
or classes of aliens.’ As a practical matter, only a relatively
4802 GARFIAS-RODRIGUEZ v. HOLDER
small percentage of removable aliens are granted voluntary
departure.” (internal citations omitted)); Cervantes-Ascencio
v. INS, 326 F.3d 83, 86 (2d Cir. 2003) (“Promulgating limits
on eligibility for voluntary departure involves broad discre-
tion by the INS, . . . as does granting or denying voluntary
departure. This discretionary component not only substan-
tially curtails our review authority, but also precludes entitle-
ment to such relief as a matter of right.” (internal citations
omitted)).
[19] Although no court has explicitly ruled on the question
of whether § 1229c(e) furnishes the Attorney General with the
authority he needed to promulgate 8 C.F.R. § 1240.26(i), we
think the question is easily answered. Section 1229c(e) autho-
rizes the Attorney General to impose limits for voluntary
departure for “any class or classes of aliens.” The provision
does not contain any qualifying language on the Attorney
General’s authority to limit voluntary departure. Indeed, the
remainder 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)(A)-(D) (imposing four limitations on the
classes of aliens eligible for voluntary departure); id.
§ 1229c(c) (prohibiting grants of voluntary departure to aliens
inadmissible under § 1182(a)(6)(A)).
[20] Garfias attempts to identify an ambiguity by pointing
out that the language of § 1229c(e) only gives the Attorney
General authority to “limit eligibility” for grants of voluntary
departure, and does not provide him with unlimited authority
to determine when those grants should terminate. We do not
think this interpretation is sound. 8 C.F.R. § 1240.26(i) may
be read as a limitation on voluntary departure for a class of
aliens — those who choose to appeal from a decision of the
BIA. In light of § 1229c(e)’s broad grant of discretion over
voluntary departure, we hold that 8 C.F.R. § 1240.26(i) is a
proper exercise of the Attorney General’s authority. Because
GARFIAS-RODRIGUEZ v. HOLDER 4803
we resolve this issue at the first step of the Chevron analysis,
there is no need to inquire further into the reasonableness of
the regulation.
V
We hold that aliens who are inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I) may not seek adjustment of status under
8 U.S.C. § 1255(i). Furthermore, we hold that this rule can
properly be applied to Garfias. Finally, we hold that 8 U.S.C.
§ 1229c(e) unambiguously provided 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.