Adjustment of Status Under § 245(i) for Noncitizens Previously Removed (Duran Gonzalez Class Action)

Last Updated:

Thursday, January 12, 2012

Duran Gonzalez is a Ninth Circuit-wide class action challenging DHS’ refusal to follow Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). In Perez-Gonzalez, the Ninth Circuit had said that individuals who had been removed or deported may apply for adjustment of status (under INA § 245(i)) along with an accompanying I-212 waiver application. In Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007), the Ninth Circuit overturned Perez-Gonzalez, deferring to the BIA’s holding that individuals who have previously been removed or deported are not eligible to apply for adjustment of status. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).

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CASE

Initial Proceedings in District Court

On September 28, 2006, plaintiffs filed a complaint asking the district court to order DHS to follow the Ninth Circuit’s decision in Perez-Gonzales. The court granted a preliminary injunction and certified the class. The class included individuals who were inadmissible under INA § 212(a)(9)(C)(i)(II), who filed adjustment of status and I-212 waiver applications prior to a reinstatement order, and whose applications were denied because ten years had not elapsed since the date of the applicant’s departure. The court also certified a second class of similarly situated individuals who had filed their applications or intended to file, but USCIS had not yet denied the applications. On January 8, 2007, the government filed a notice of appeal to the Ninth Circuit. The notice of appeal was filed pursuant to 28 U.S.C. § 1292(a)(1), which gives the courts of appeals jurisdiction over interlocutory appeals.

First Ninth Circuit Appeal – Filed by Government

On November 30, 2007, the Ninth Circuit issued a decision vacating the district court’s preliminary injunction and overturning Perez-Gonzalez. Subsequently, Plaintiffs-Appellees filed a petition for rehearing and rehearing en banc. The Ninth Circuit denied the petition on January 16, 2009.

On Remand to the District Court

On January 21, 2009, plaintiffs filed a motion to amend the complaint; a motion to amend and redefine the class (to include only individuals whose applications were pending at any time between the date of Perez-Gonzalez (August 13, 2004) and the date of Duran Gonzales (November 30, 2007)); and a request for a temporary restraining order (TRO) and preliminary injunction. The amended complaint alleges that the government cannot apply the Duran Gonzales decision retroactively to the detriment of class members who relied on Perez-Gonzalez. Initially, the district court granted a TRO. Subsequently, however, the district court denied a preliminary injunction, and the TRO expired. As a result, USCIS now is allowed to deny class members’ I-212 applications and give effect to already denied applications, which could result in individuals being put in removal proceedings or being subject to reinstatement of removal. The district court entered judgment in favor of the defendants on February 27, 2009, and plaintiffs filed a notice of appeal.

Second Ninth Circuit Appeal – Filed by Plaintiffs

The issue on appeal is whether the Ninth Circuit’s 2007 decision should apply retroactively to class members who relied on Perez-Gonzalez (i.e., those whose adjustment of status and I-212 waiver applications were pending at any time on or after August 13, 2004 and on or before November 30, 2007).

On April 2, 2010, the Ninth Circuit issued a decision in another case, Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th Cir. 2010), in which it held that Duran Gonzales applies retroactively. This decision addresses the issues on appeal in the class action. Petitioner Morales-Izquierdo filed a petition for rehearing en banc on May 17, 2010, and the named plaintiffs and the certified class in Duran Gonzales filed an amicus brief in support of the petition. The court, however, denied the petition for rehearing en banc.

On July 14, 2011, the Ninth Circuit issued an en banc decision in Nunez-Reyes v. Holder, No. 05-74350, in which it applied the civil retroactivity test from Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), and concluded that its decision applied prospectively only. The Duran Gonzalez plaintiffs filed a 28(j) letter (notifying the court of this new authority), maintaining that under Nunez-Reyes, the court should apply Duran Gonzales prospectively only as well. The court subsequently ordered supplemental briefing to address the impact of Nunez-Reyes on the appeal and held argument on September 21, 2011. On October 25, 2011, the court denied plaintiff's appeal, holding that Duran Gonzales applies retroactively. On December 9, 2011, plaintiffs filed a petition for rehearing and rehearing en banc. The court ordered the government to file a response to the petition, which the government did on January 24, 2012. The rehearing petition remains pending.

On March 1, 2012, the Ninth Circuit withdrew its decision in a related case, Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th Cir. 2011), and ordered rehearing en banc. Garfias-Rodriguez involves adjustment of status under former INA § 245(i) pursuant to Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) (i.e., those inadmissible under INA § 212(a)(9)(C)(i)(I), as opposed to Duran Gonzales class members who are inadmissible under under INA § 212(a)(9)(C)(i)(II)). Significantly, the panel in Garfias-Rodriguez reached the same conclusion as the Duran Gonzales panel regarding whether the new rule should apply retroactively where a person relied on a prior rule. Thus, the court’s decision to rehear Garfias-Rodriguez en banc has major implications for certain Duran Gonzales class members who applied for adjustment with the necessary waivers prior to the Ninth Circuit’s first decision in Duran Gonzales. Attorneys with clients who are now before the Ninth Circuit should move the court to hold the case pending resolution of the en banc decision. Likewise, if the case is before the immigration court or the BIA, the client may want to consider asking for a continuance or to have the case held pending the Ninth Circuit’s resolution.

On April 11, 2012, the Duran Gonzales named Plaintiffs and proposed redefined class filed an amicus brief in Garfias-Rodriguez.