FILED
NOT FOR PUBLICATION OCT 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO SALAZAR-ARZOLA, No. 12-71362
Petitioner, Agency No. A095-565-261
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2014**
Seattle, Washington
Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.
Petitioner Antonio Salazar-Arzola (“Salazar-Arzola”) petitions this court for
review of the Board of Immigration Appeals’s (“BIA”) dismissal of his appeal of
the Immigration Judge’s (“IJ”) decision to pretermit his application for adjustment
of status. Salazar-Arzola argues that the BIA erred in its determination that his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
status as an inadmissible alien under 8 U.S.C. § 1182(a)(9)(C)(i)(I) precludes
eligibility for adjustment of status. We deny the petition.
We review de novo the BIA’s determinations of questions of law. Tamang
v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).
In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007), bars individuals who
are inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) from seeking adjustment of
status under 8 U.S.C. § 1255(i). Salazar-Arzola concedes that this court’s decision
in Garfias-Rodriguez v. Holder, 702 F.3d 504, 514 (9th Cir. 2012) (en banc), gives
Briones deference under Chevron and Brand X and explicitly overrules conflicting
precedent in Acosta v. Gonzales, 439 F.3d 550, 556 (9th Cir. 2006). Therefore, the
BIA did not err in concluding that Briones, rather than Acosta, is the controlling
authority.
Moreover, under Garfias, the BIA did not err in retroactively applying
Briones to Salazar-Arzola’s application for adjustment of status. When this court
gives Brand X deference to an agency’s statutory interpretation and overrules
earlier precedent in response to that interpretation, it considers the retroactive
application of the agency interpretation on a case-by-case basis. Garfias, 702 F.3d
at 519-20. Under the retroactivity analysis prescribed in Montgomery Ward & Co.,
Inc. v. FTC, we must consider the extent to which a new rule departs from well
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established law, whether the party reasonably relied upon the previous rule, the
burden retroactivity imposes on that party, and the statutory interest in retroactive
application. 691 F.2d 1322, 1333 (9th Cir. 1982).
Montgomery Ward’s retroactivity analysis favors the government in this
case. Although pretermitting his application for adjustment of status severely
burdens Salazar-Arzola and his family, retroactivity is proper because he fails to
demonstrate that his actions, such as his decision to depart the United States in
2003 and return less than a year later, were based upon a reasonable reliance on a
rule that would have deemed him eligible for adjustment of status. The only period
during which Salazar-Arzola could have alleged reasonable reliance on such a rule
was the brief period between Acosta and Briones, but Salazar did not seek
adjustment of status until after that period, in 2008. See Garfias, 702 F.3d at 522.
Retroactive application of Briones is proper as applied to the facts and
timing of Salazar-Arzola’s application. Therefore, the BIA did not err in
concluding that his status as an inadmissible alien under 8 U.S.C. §
1182(a)(9)(C)(i)(I) renders him ineligible for adjustment of status.
PETITION DENIED.
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