Law School Case Brief
Gutierrez-Brizuela v. Lynch - 834 F.3d 1142 (10th Cir. 2016)
8 U.S.C.S. § 1255(i)(2)(A) grants the Attorney General discretion to adjust the status of those who have entered the country illegally and afford them lawful residency. 8 U.S.C.S. § 1182(a)(9)(C)(i)(I) provides that certain persons who have entered this country illegally more than once are categorically prohibited from winning lawful residency unless they first serve a ten-year waiting period outside our borders. Observers have long noted the tension between the two laws and wondered which should control. Employing the usual tools of statutory interpretation, the appellate court in 2005 determined that the Attorney General's discretion to afford relief without insisting on a decade-long waiting period remained intact.
Two provisions of the immigration laws, 8 U.S.C. §§ 1255(i)(2)(A) and 1182(a)(9)(C)(i)(I), are under consideration. The second statute, 8 U.S.C.S. § 1182(a)(9)(C)(i)(I) "provides that certain persons who have entered this country illegally more than once are categorically prohibited from winning lawful residency unless they first serve a 10-year waiting period outside our borders." But the first statute, 8 U.S.C.S. §§ 1255(i)(2)(A), gives the Attorney Generaldiscretion to "adjust the status" of those aliens who entered illegally without insisting on the 10-year waiting period. In 2005, the United States Court of Appeals for the Tenth Circuit determined that the Attorney General's discretion to "adjust the status" of those who have entered the country illegally and afford them lawful residency under § 1255(i)(2)(A) to afford relief without insisting on a decade-long waiting period remained intact. Padilla-Caldera I. Two years later, the Board of Immigration Appeals (BIA) issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007), in which the BIA offered its view that — as a matter of policy discretion — the statutory tension should be resolved against affording the Attorney General any discretion to consider applications for adjustment of status when § 1182(a)(9)(C)(i)(I) applies. A conclusion directly at odds with the one we reached in Padilla-Caldera I. The Tenth Circuit again revisited its decision to address an ambiguity in Padillo-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140, 1148-52 (10th Cir. 2011), which held that all future petitioners must satisfy the 10-year waiting period and may not seek discretionary relief from the Attorney General. But an open question remained about petitioners who applied for discretionary relief in express reliance on Padilla-Caldera I, before the BIA's announcement of its contrary interpretation in Briones.
Petitioner Hugo Rosario Gutierrez-Brizuela, an alien, filed a petition applied for adjustment of status in reliance on the decision in Padilla-Caldera I during the period it remained on the books, but after the BIA's announcement of its contrary interpretation in Briones yet before Padilla-Caldera II declared Briones controlling and Padilla-Caldera I effectively overruled.
Does the decision of the Bureau of Immigration Appeals that effectively overruled a judicial precedent apply retroactively?
There was no clear ruling that agencies' decisions must or should presumptively apply retroactively to conduct completed before they took legal effect. The appellate court also noted the concerns that would arise if the Bureau of Immigration Appeals (BIA) could apply a rule retroactively to the alien's conduct, where, in 2009, the alien could seek and adjustment of status or accept a ten-year waiting period outside the country, and the alien chose the former path. The Tenth Circuit granted the alien's petition for review and remanded the case to the BIA for further proceedings.
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