The United States Court of Appeals for the Ninth Circuit has created a complicated, evolving set of legal interpretations which are vital to understanding immigration law. As shown in a recent case, however, these interpretations are not only subject to change, but those changes can be very detrimental to those who relied on their earlier decisions. This detriment is especially severe when the changes are made retroactive, meaning the new interpretations apply to actions taken previously.
In recent years the Ninth Circuit retroactively reversed itself in a number of areas of immigration law, and continued the trend on October 19, 2012, with Garfias-Rodriguez v. Holder http://www.ca9.uscourts.gov/datastore/opinions/2012/10/19/09-72603.pdf. While a full explanation of the retroactive application of court precedent is beyond the scope of a single blog post, this case illustrates the problem very well.
Garfias-Rodriguez is exceedingly complicated, and covers very important issues beyond what is discussed here. All immigration attorneys should read the full case with care, but a short summary highlights how the Ninth Circuit can change its interpretation of the law retroactively to the detriment of those who may have relied on the old version.
Briefly, the case addressed a long-standing question about INA § 245(i), a statute which excuses several bars to adjustment of status for the beneficiaries of certain immigration filings submitted on or before April 30, 2001. At issue in Garfias-Rodriguez is whether 245(i) excuses the bar to residency at INA § 212(a)(9)(c), which is triggered when a foreign national is in the U.S. unlawfully for a year a more, departs, and then tries to re-enter illegally.
Like many others, Mr. Garfias-Rodriguez argued that 245(i) excuses 212(a)(9)(c), and filed for residency accordingly. Things initially were hopeful for Mr. Garfias-Rodriguez because after he filed the application, the Ninth Circuit determined that INA § 245(i) indeed did cure the bar for multiple illegal entries. Based on the Ninth Circuit’s decision, moreover, many more people subject to 212(a)(9)(c) filed for residency believing their eligibility for 245(i) would cure this bar.
Later, however, the Department of Justice’s Board of Immigration Appeals issued a decision to the contrary, holding that INA § 245(i) did not cure the bar due to multiple illegal entries. Generally, the federal courts are a higher authority than a federal agency like the Board of Immigration Appeals. Therefore, a BIA decision by itself would not overturn the favorable interpretation from the Ninth Circuit.
In Garfias-Rodriguez, however, the Ninth Circuit reversed their earlier holding that INA § 245(i) excused the bar for multiple illegal entries, and instead applied the agency decision holding it did not. This is because while federal courts are a higher authority than administrative agencies, there is a crucial exception to this rule. A Supreme Court case, National Cable & Telecommunications Ass’n v. Brand X Internet Services, says that if an agency makes a reasonable interpretation of an ambiguous law in an area where the agency has special expertise, the agency interpretation is to be applied, even if there is contrary circuit court interpretation already in place.
Applying Brand X, the Ninth Circuit determined that whether 245(i) excused 212(a)(9)(c) is an ambiguous area or the law, and one within the area of the BIA’s expertise. Further, it held that while the BIA interpretation differed from its own, that interpretation was also reasonable. Therefore, the Ninth Circuit reversed itself, and instead found BIA’s interpretation controlled. Furthermore, it held that new interpretation applies retroactively to applications which were previously filed.
In other words, even though the court had previously said that INA § 245(i) excused the bar to residency at INA § 212(a)(9)(c), they changed that position after the agency disagreed. Furthermore, they applied this change in the interpretation in law to bar residency applications which were pending while the court had said they could proceed.
Therefore, even though Mr. Garfias-Rodriguez had a pending application when the court said he was eligible to apply, he was now ineligible for residency based on the new interpretation. Furthermore, since Mr. Garfias Rodriguez was in the United States unlawfully, the government was permitted to remove him using information provided from the application.
The court gave a lengthy discussion of when it will apply a change in the interpretation of the law retroactively. There are a couple of points which are especially important for immigration matters, however.
First, recall that the Supreme Court under Brand X requires the court to follow a reasonable agency interpretation of an ambiguous law within its area of expertise, even if it contradicts an earlier circuit court ruling. In this case, the Ninth Circuit said that Mr. Garfias-Rodriguez should have recognized that the law at issue was ambiguous, and within the area of the BIA’s expertise, making it subject to change by the Board of Immigration Appeals.
Second, because there is no right to remain in the United States unlawfully, undocumented foreign nationals presenting themselves to immigration authorities do not give up any legal rights when they apply for benefits. Additionally, it is permissible to use information in those applications to remove foreign nationals if the applications are denied.
Therefore, foreign nationals applying for residency based on the Ninth Circuit’s interpretation of the law could not only be denied residency due to a later change, but could be removed based on information in their applications.
Again, Garfias-Rodriguez is not the first time a Ninth Circuit decision has harmed those who relied on a prior decision by the same court. Considering this case, and others, here are some valuable pointers when making decisions based on Ninth Circuit law-
1. Is the Ninth Circuit case you’re relying on subject to reversal under Brand X? Specifically,
a. Is the law specific to immigration, as opposed to another area of law, such as criminal statute?
b. If so, is the law ambiguous? Often the Ninth Circuit will address this issue directly.
2. What is the risk if the case is reversed? Is the foreign national going to be placing him or herself in danger of removal?
3. What are the potential benefits under the new law? Even with a risk, it may be worth proceeding rather than waiting an indeterminate amount of time to see if the case holds up.
4. Use the chance of reversal to your advantage for negative decisions- if a foreign national seeks to challenge an existing Ninth Circuit interpretation, these same arguments may make that possible.
5. Not every change in the interpretation of the law is retroactive. If a new case will have a detrimental effect on actions you took previously, especially relying on the law in effect at the time, you may be able to argue the law should be applied retroactively.
6 Remember that independent of reversal, the law can change in many other ways. For example, statutes change and the Supreme Court can overrule the Ninth Circuit.
While it is crucial to follow the Ninth Circuit’s interpretations of immigration law, it is also important to remember their decisions can change in the future but carry consequences on decisions made now. Therefore, foreign nationals and immigration practitioners should be cautious in their reliance on Ninth Circuit precedent.