CA9 on Brand X: Duran Gonzales Vacated, Remanded

CA9 on Brand X: Duran Gonzales Vacated, Remanded

"The opinion filed on October 25, 2011, 659 F.3d 930, is withdrawn. A superseding opinion and dissent will be filed concurrently with this order. The Petition for Rehearing En Banc filed on December 9, 2011 is denied as moot. ... Plaintiff-Appellants are Aurelio Duran Gonzales and six other Mexican citizens. Each of these aliens was previously deported or removed and then subsequently reentered the United States without inspection. From within the United States, these individuals applied for an adjustment of status and an I-212 waiver of their inadmissibility due to their previous removal and unlawful reentry. Plaintiffs construed Ninth Circuit law at the time as permitting them to seek such a waiver, notwithstanding the statutory requirement that ten years elapse between an alien’s last departure from the United States and his or her waiver application. See Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). They filed suit to challenge the application of the ten-year requirement to deny them waivers. After our decision in Perez-Gonzalez, however, the Board of Immigration Appeals had in fact disagreed with aspects of that decision and construed the statutory scheme to require satisfaction of the ten-year requirement, even for I-212 waiver applicants already unlawfully present in the United States. On the first appeal in this matter, we deferred to the BIA’s reasonable statutory interpretation, citing National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 981–85 (2005). Duran Gonzales v. DHS, 508 F.3d 1227, 1235–39, 1242 (9th Cir. 2007) (“Duran Gonzales I”). Ninth Circuit law thereby became consistent with the agency’s position. On remand, rejecting Plaintiffs’ objections and motions, the district court concluded the BIA’s rule would have full retroactive effect, denied motions to amend the complaint and class definition as futile, and dismissed this class action. We affirmed this ruling in October 2011, but stayed the mandate pending the resolution of en banc proceedings in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc). Ultimately, that decision changed the retroactivity test for cases in which Brand X mandates deference to an agency’s statutory interpretation, even if there is a contrary prior Ninth Circuit case. Because the mandate never issued for our opinion on this appeal and there has been an intervening change in authority, we decline to apply the putative law of the case, vacate the district court’s judgment, and remand for reconsideration of the motions to amend the complaint and class definition in light of the new retroactivity test set forth in Garfias-Rodriguez." - Duran Gonzales v. DHS, Mar. 29, 2013.